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Colorado Supreme Court: Police Officer’s ‘Hunches’ Cannot Establish Probable Cause, Determination Requires Consideration of Facts Weighing in Favor and Against Probable Cause

by Anthony W. Accurso

The Supreme Court of Colorado held that facts used in determining probable cause to conduct a warrantless search must include those that militate against a finding of probable cause.

Colorado State Patrol Trooper Christian Bollen was watching eastbound traffic on I-70 around 8:00 a.m. on the morning of November 20, 2020, when he spotted a Chevy Tahoe with out-of-state license plates. On a hunch, he decided to follow it and discovered the vehicle was a rental when he ran the plates. He would later testify that these facts alone led to his suspicion that the vehicle was being used to transport narcotics across country.

After the Tahoe traveled in the left lane for an extended period of time without passing other cars, Bollen initiated a lawful traffic stop. There were four people in the Tahoe: (1) the driver, Erica Sagastizado; (2) her boyfriend, front passenger, and defendant in this case, Lamonte Xavier Smith (“Smith”); (3) Lamonte’s brother, Charles Smith; and (4) Charles’ girlfriend, Trinity Adokomola.

Bollen confirmed that Sagastizado had a valid license and a copy of the rental agreement, informed her why he initiated the traffic stop, and advised that he would not be issuing her a citation. However, he asked if she would be willing to join him at his patrol car while he ran her information through his computer.

While she was seated in the backseat of the patrol car, Bollen asked her a barrage of questions about her travel plans. He decided that her answers didn’t make sense to him and informed her that he had summoned a drug dog to sniff the exterior of her vehicle because he suspected that she was transporting drugs. She denied doing so. Bollen asked her to consent to a search of her vehicle, which she declined to provide. She then asked if she was free to return to her vehicle; Bollen told her she wasn’t but could step out of the patrol car.

He left her at the patrol car and returned to the Tahoe to question the passengers, who provided information in response to Bollen’s battery of questions about their travel plans that contradicted Sagastizado’s statements. When asked if they were under arrest, Bollen told them they were not but that he suspected them of transporting drugs, which they denied. Bollen then asked them if there were illegal drugs, weapons, or large amounts of cash in the vehicle; they answered that there wasn’t anything of that nature inside the vehicle. Bollen claimed that Smith stared at the glove compartment when he asked the group about any contraband. They refused Bollen’s request to search the vehicle.

When the drug dog arrived on scence, Bollen order the passengers out of the vehicle. One passenger asked if he was going to search the vehicle. He stated that a search would be conducted only if the drug dog alerted to the presence of illegal drugs.

Despite two trips around the exterior of the vehicle, the drug dog did not alert to any narcotics. Nevertheless, unsatisfied because he still had a hunch that the group was transporting drugs, Bollen and another trooper searched the vehicle over the objections of the occupants, who told Bollen that he was engaged in an illegal search because they didn’t provide their consent. Bollen replied that he didn’t need their consent because he believed that he had probable cause to search.

Upon finding that the glove compartment was locked, Bollen demanded the key, saying he would pry it open if they failed to produce it. They surrendered the key, and Bollen found a kilogram of cocaine and a prescription bottle full of fentanyl pills with Smith’s name on it, though the prescription label was for a different medication. Bollen arrested all four occupants, though Smith was eventually indicted for the narcotics.

During pretrial proceedings, Smith filed a motion to suppress all evidence obtained as a result of the search of the vehicle. The District Court granted the motion, finding that Bollen lacked probable cause to search the vehicle by merely “piling hunch upon hunch.” The prosecution filed an interlocutory appeal.

The Court began its analysis by reciting familiar Fourth Amendment principles that “(1) all searches and seizures must be reasonable; and (2) a warrant may issue only if ‘probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King, 563 U.S. 452 (2011). The Court noted that only the first prong is at issue in the present case.

The warrant requirement is subject to specific recognized exceptions because the guiding principle of the Fourth Amendment is reasonableness, explained the Court. People v. Allen, 450 P.3d 724 (Colo. 2019). It stated that one such exception that is potentially applicable to this case is the automobile exception, which “authorizes an officer to perform a search of an automobile if he has ‘probable cause to believe that the automobile contains evidence of a crime.’” People v. Zuniga, 372 P.3d 1052 (Colo. 2016). 

On review, the Court noted that “[a] search conducted without a warrant is presumptively unreasonable and thus in contravention of the Fourth Amendment.” Citing People v. Allen, 2019 CO 88. However, the automobile exception to the warrant requirement “authorizes an officer to perform a search of an automobile if he has probable cause to believe that the automobile contains evidence of a crime.” Id.

“Colorado courts and law enforcement agencies ‘frequently consider non-criminal and legally ambiguous conduct in probable cause analyses, and the possibility of an innocent justification merely affects a fact’s weights and persuasiveness, not its inclusion in the analysis.’” People v. Zuniga, 2016 CO 52.

Also, while individual facts alone may not rise to a finding of probable cause, “those same facts may support a finding of probable cause when considered in combination.” People v. Bailey, 2018 CO 84.

The Court wrote that Trooper Bollen had the following information prior to conducting his search of the vehicle: “(1) the Tahoe was a rental, had out-of-state license plates, and was traveling eastbound on I-70; (2) Sagastizado had rented the Tahoe in Los Angeles; (3) Sagastizado wasn’t forthright about the trip and became nervous when Trooper Bollen shared his suspicion about drug trafficking; and (4) the passengers were not forthright about the trip either and the defendant stared at the glove box when Trooper Bollen asked if there was contraband.”

The State argued that these facts were sufficient to give Trooper Bollen probable cause to search the Tahoe. But the court noted that a probable cause determination “considers instead the totality of the circumstances,” and must “look not only to the facts supporting probable cause, but also to those that militate against it.” United States v. Valenzuela, 365 F.3d 892 (10th Cir. 2004).

The Court stated, “Trooper Bollen omitted [the negative sniff] from his probable cause consideration, and the prosecution commits the same error in its totality-of-the-circumstances analysis.” Thus, though without the negative sniff result, the trooper may have been justified in further investigation, learning the drug dog had failed to alert on the vehicle should have ended his efforts.

Accordingly, the Court upheld The District Court’s grant of the defendant’s motion to suppress. See People v. Smith, 2022 CO 38. 

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