Even though a Colorado State Patrol employee in Mesa County was convinced a driver and her passengers were trafficking drugs, he did not have probable cause to search the vehicle, the state Supreme Court ruled on Monday.

The court explained Trooper Christian Bollen had searched the Chevrolet Tahoe over the objection of its occupants based on a series of hunches about drug smuggling, even though a narcotics-detection dog had indicated no contraband was present.

“Trooper Bollen’s hunches were certainly justified by the circumstances. But a hunch cannot be equated with probable cause,” wrote Justice Carlos A. Samour Jr. in the June 27 opinion.

The decision upheld the order of a Mesa County judge, who determined the consequence for the illegal search must be suppression of the evidence Bollen ultimately found in the Tahoe: 2.5 pounds of cocaine and several fentanyl pills.

Bollen was stationed along Interstate 70 west of Fruita on the morning of Nov. 20, 2020, when he spotted the Tahoe with an out-of-state rental plate. He had worked for the state patrol for more than a decade and his experience included investigating over 100 drug interdiction cases and receiving 300 hours of related training.

The trooper pulled over the Tahoe around 7:40 a.m. for traveling in the left lane without passing. There were four people in the vehicle, including Lamonte Xavier Smith, whose case was the subject of the Supreme Court’s decision. Bollen asked the driver for her license and the rental agreement for the Tahoe.

He invited her to his vehicle while he entered some information into his computer. Once inside, Bollen started quizzing the driver about her trip, learning that she and her passengers had flown to California and were now driving back to Maryland. They had departed Los Angeles the prior evening. The Tahoe’s rental agreement noted it was due back in Los Angeles on Nov. 20, the same day as the traffic stop.

“We are kind of doing sightseeing,” the driver said in response to Bollen’s question about why they chose to drive. The trooper, however, grew suspicious. At one point, the driver said she passed by “the Grand Canyon.”

“Did you drive by a canyon, or did it say the Grand Canyon?” Bollen pressed, after doubting a nighttime visit to the Grand Canyon would have been feasible given the timeline.

“It said canyon. There was something canyon. I thought it was the Grand Canyon,” the driver replied. She also revealed she had to be back to work in Maryland the following day, which Bollen believed was incompatible with her stated goal of sightseeing.

The trooper informed her he was assigned to the smuggling, trafficking and interdiction task force. Bollen said he believed with certainty the driver was smuggling something, after which the driver allegedly turned pale. Bollen asked for her consent to search the Tahoe and the driver refused. He told her he would request a drug-sniffing dog.

Bollen then left the driver in his vehicle and approached the three passengers in the Tahoe. They similarly told him they had been in Los Angeles the prior day, but said they chose to drive to Maryland because one of the passengers was afraid of flying.

Bollen asked if there was anything illegal in the Tahoe, including drugs, large amounts of cash or firearms. Bollen claimed Smith, who was sitting in the front passenger’s seat, looked at the glove box during the questioning. Smith also denied Bollen’s repeated requests to search the vehicle.

Soon, another trooper arrived with detection dog Jedi. After walking around the vehicle, Jedi gave no indication of contraband.

Nevertheless, Bollen decided he had probable cause of a crime and searched the Tahoe anyway, over the protests of the occupants. At 8:17 a.m., Bollen asked for the key to the locked glove compartment. When one of the passengers thought about calling his attorney, Bollen said he would pry the glove box open if he did not receive the key. Inside, the trooper found the drugs.

Prosecutors charged Smith with three counts related to the drug possession. He moved to suppress the evidence based on the Fourth Amendment’s prohibition on unreasonable searches and seizures.

In a March 2022 order, District Court Judge Valerie J. Robison sided with Smith. In Bollen’s testimony, the trooper claimed he had probable cause for a search based on the occupants’ inconsistent or deceptive stories, as well as several indicators of drug trafficking Bollen had learned during his time on the job. For example, flying from Maryland to Los Angeles — a “known source of narcotics” — and driving back quickly in a rental vehicle was a hallmark of smuggling, he said.

Robison disagreed that those circumstances, without more, pointed to criminal activity.

“There was no testimony to indicate that any of the occupants were under the influence, no smell was detected by the law enforcement officers, and the K-9 did not alert,” she wrote. “In this case, there was nothing objective to suggest the vehicle contained illegal substances. Rather, Trooper Bollen had a hunch that illegal substances were hidden in the vehicle.”

The Mesa County District Attorney’s Office appealed directly to the Supreme Court, arguing Robison had failed to give the “appropriate degrees of suspicion” to all of the factors Bollen had identified.

“Remember, the entire premise was that these four flew to California, to go sightseeing. But who gives themselves 36 hours to ‘sightsee’ the entire United States?” wrote George Alan Holley II of the district attorney’s office. “The short trip, when juxtaposed with the purpose of ‘sightseeing,’ is very important, and was given no degree of suspicion.”

The Supreme Court upheld Robison’s findings. Samour acknowledged in the court’s opinion that certain behaviors can amount to probable cause for a crime, even if they have innocent explanations. But despite Bollen’s experience-based hunches, there was a key piece of information that dispelled the notion of probable cause.

“Jedi did not alert to the presence of illegal narcotics during the sniff around the car. Trooper Bollen omitted this circumstance from his probable cause consideration, and the prosecution commits the same error,” Samour wrote.

Although Bollen’s hunches were ultimately correct, legally they did not point to a probability that drugs would be found in the Tahoe, the court concluded.

The case is People v. Smith.