For the second time in under two years, a court has found a Fruita police officer deployed her drug-detection dog during a traffic stop without probable cause, obtaining evidence unconstitutionally.

According to court records, Mesa County Sheriff’s Sgt. Justin Bynum observed an apparent transaction between Arlene A. Coglietti and a man, and alerted dispatch. He did not mention anything about the exchange of drugs.

Police Officer Cheryl Yaws was nearby and followed Coglietti’s car, eventually pulling her over for speeding. Yaws recognized Coglietti from a prior drug arrest, and Coglietti denied she was still using narcotics.

Yaws told Coglietti she intended to use her drug-detection dog, Talu. Coglietti denied having marijuana, methamphetamine, cocaine or heroin in the car. Talu, performing a “free air sniff,” alerted Yaws to something at the passenger side door.

After a search, Yaws found a purse with methamphetamine in the car.

Mesa County District Court Judge Lance P. Timbreza agreed that Yaws did not have reasonable suspicion to use the dog, but also the officer did not need it in this instance. Because Coglietti denied possessing marijuana, “there was no reason to believe Talu would alert to anything other than contraband,” said Timbreza, whom the Colorado Supreme Court suspended last year for driving under the influence.

Coglietti appealed her conviction for unlawful possession of a controlled substance with the intent to distribute. On Dec. 17, a three-member appellate panel agreed with her.

The Colorado Supreme Court in 2019 ruled that because the possession of small amounts of marijuana is constitutional, a free air sniff from a detection animal does not only indicate unlawful activity. As such, law enforcement needs probable cause before deploying the animal.

“While Ms. Coglietti’s speeding was enough to initiate the traffic stop, there is nothing in the record to suggest that Ms. Coglietti possessed contraband before or at the time of the stop,” wrote Judge Rebecca R. Freyre. She added that Coglietti showed no signs of intoxication nor did Bynum report seeing drugs in his initial surveillance of Coglietti.

To Timbreza’s ruling that Coglietti’s denial of marijuana was an invitation to perform a search, “Ms. Coglietti did not lose her expectation of privacy by denying possession of marijuana, methamphetamine, cocaine, or heroin,” Freyre pointed out.

Yaws and Talu were previously the subject of a 2019 appeal to the Colorado Supreme Court. Law enforcement pulled over a car with a missing front license plate twice within the span of a few days. During the second stop, a sheriff’s sergeant asked the driver if there was any marijuana in the car.

After the driver answered in the negative, Talu sniffed around the car and indicated the presence of contraband. Officers found methamphetamine in that instance, too. A majority of the Supreme Court determined law enforcement lacked probable cause for the search, similarly observing the driver did not forfeit her right to privacy by denying the presence of narcotics.

Daniel P. Rubinstein, the district attorney for Mesa County, said Yaws is now retired and none of the current drug-detection dogs in the jurisdiction is trained to alert to the odor of marijuana.

“I applaud the creativity of Officer Yaws in believing that if a suspect has told her that the vehicle did not contain any marijuana, and has thus ruled out any lawful reason for an alert by her dog, that it would be ok to rely on the defendant’s assertion,” he said. “An officer relying on a suspect’s assertions does not seem like unreasonable police conduct.”

Rubinstein added that his office does not currently plan to appeal Coglietti’s case to the Supreme Court.

This article and headline have been updated to correct that Officer Cheryl Yaws worked for the Fruita Police Department.