Aurora police stopped a man for a traffic infraction, deployed a drug-sniffing dog, found no narcotics but impounded the vehicle anyway, searched the vehicle before the warrant was approved, did not document the search, could not recall where a memory card went prior to booking it into evidence and used a mistaken representation in their application for a search warrant. A federal judge ruled, however, that the officers acted constitutionally.

U.S. District Court Judge William J. Martínez found nothing to suggest that an Aurora police investigator “knew his statements in the affidavit were false at the time he made them, or that he recklessly disregarded the truth,” he wrote in a May 10 order.

However, Martínez was “deeply troubled” that Investigator Jeffery Wheelis did not document his search of the defendant’s vehicle upon its impoundment, days before a magistrate approved a search warrant. The defense argued that the federal criminal case amounted to “forum-shopping” because state authorities in two jurisdictions had already dismissed their own charges.

Federal authorities charged Timothy Spikes and Sylvia Montoya with 11 counts between the two of them for firearm and drug possession with intent to distribute, stemming from a March 2019 police encounter in Aurora. Wheelis and Investigator Andrew Merino spotted Spikes and other individuals walk in and out of a motel room in the 11800 block of East Colfax Avenue. The investigators reportedly contacted Officer Peter Ponich as Spikes drove away, and Ponich subsequently pulled Spikes over for his vehicle’s heavily-tinted windows.

Ponich patted down Spikes, finding no weapons or contraband, and had Spikes wait until another officer could arrive to measure the tint on the 2019 Dodge Charger. In the meantime, Officer Eric Dortch and his K-9, Puck, arrived and the dog sniffed around the vehicle Spikes was driving.

Despite Spikes’s repeated insistence that he did not consent to a search, Puck alerted his handler to the presence of narcotics. Dortch also let Puck inside the vehicle, where he further indicated for drugs in the passenger area. Dortch, however, did not find any narcotics following a hand search. Spikes refused to unlock the glove compartment, and Dortch impounded the Charger while applying for a search warrant.

After another officer arrived and found the car’s windows were indeed tinted too heavily by state standards, Aurora police towed the Charger, and Ponich issued a traffic ticket for the window tinting.

Days later, a magistrate in Arapahoe County signed off on a search warrant for the Charger’s glove compartment, and investigators discovered a gun, cocaine and methamphetamine inside the glove compartment. Denver police arrested Spikes later that month when he was a passenger in a car with Montoya. Officers released Montoya, who was a Denver sheriff’s deputy, but took Spikes into custody, where a strip search found heroin on him.

Both Arapahoe and Denver counties dismissed the cases against Spikes, but federal prosecutors charged him and Montoya in May 2019. The defendants moved to suppress all of the evidence police obtained in the search of the Charger Spikes was driving, the search of Montoya’s car, the search of Spikes in Denver and a further search Montoya’s Lakewood apartment.

“The illegal search of Spikes’s vehicle violates Colorado law and leaves little doubt that in a state prosecution the evidence obtained, as a result of the illegal search, would be suppressed,” wrote attorneys for Spikes and Montoya, claiming Wheelis contacted federal authorities specifically so that the prosecution could continue there. “State officials are circumventing the state law by admitting illegally obtained state evidence in a federal prosecution.”

In reviewing the police statements made in the application for a warrant to search the Charger, which the defendants alleged were intentionally false, the judge acknowledged Wheelis was “mistaken or negligent in describing the number of people who entered or left the motel room.” The investigator’s affidavit in support of the warrant indicated 13 to 15 people entered the motel room where Spikes was. The real number was three or four.

The only problem Martínez found with the police’s behavior was the search of the Charger in the evidence bay prior the warrant’s approval, which Wheelis did not document.

“But for the fact that the 2019 Charger contained the Dash Camera, it is possible that Investigator Wheelis and Merino’s search of the vehicle would never have been uncovered,” he wrote. In their motion to suppress evidence, the defendants alleged the video from inside the Charger captured one officer finding a remote garage door opener and saying, “Hey dude, [let’s] drive by his address and see if it actually works.”

The government insisted the officers had a legitimate reason for searching the Charger upon its impoundment, because “the vehicle was stopped on a busy road and Investigator Wheelis wanted officers to be safe while searching the vehicle. Hence, the vehicle was towed and Investigators Wheelis and Merino conducted a search of the passenger compartment, but not the locked glove box.”

Because they did not find drugs, the government continued, the investigators did not mention the search in the warrant application.

Although the defendants alleged Aurora police deleted videos from the camera’s secure digital, or SD, memory card, Martínez could not determine whether that was true. He observed the Aurora police officers, by the government’s own admission, “cannot recall where the SD card was taken before it was booked into evidence.” Nevertheless, the government said it planned not to use evidence from the SD card, which prosecutors said included videos of Spikes’s drug transactions. 

Despite his stated concerns, Martínez did find the police stop of Spikes for his tinted windows complied with the Fourth Amendment’s prohibition on unreasonable searches and seizures, given that the U.S. Supreme Court decided in 2005 that police use of a drug-sniffing dog is permissible even without reasonable suspicion. He acknowledged that since Colorado voters legalized marijuana possession at the state level, the state Supreme Court has clarified officers need probable cause for a drug violation before deploying a K-9.

But the judge decided simply: Colorado’s rules do not matter.

“Although possessing marijuana may now be legal under Colorado law, it remains illegal under federal law,” Martínez wrote.

He also noted the defendants were unpersuasive in their argument that the Utah program where Puck received training was deficient, and also their contention that Dortch incorrectly interpreted Puck’s behavior.

Neither an attorney for Spikes and Montoya nor spokespeople for Aurora immediately responded to a request for comment.

The case is United States v. Spikes et al.