Both the federal Constitution and the Colorado Constitution protect citizens against law enforcement unlawfully searching and seizing property. While substantially similar, the Colorado Constitution is slightly more specific than the federal Constitution. The Constitution of the State of Colorado specifically provides:
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing. Colo. Const. Art. II, Section 7.
Unlike the federal Constitution, Colorado law requires law enforcement to explain in writing the basis for seeking a search warrant.
When law enforcement seeks a search warrant, they must complete a warrant application and an affidavit stating probable cause exists to suspect that the search will expose illegal activity and present it to a judge for review and approval. If a judge approves the warrant, the police may lawfully search the property described in the warrant. Absent a warrant, law enforcement may not search property unless the situation meets a lawful exception. These types of searches are called “warrantless searches” and are presumed to be invalid.
The first step in analyzing whether a person was subjected to an unlawful search lies in the first sentence of Article 7:
The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures.
This phrase is the touchstone of a warrantless search analysis. The question addressed in the analysis is “whether a person has a constitutionally protected reasonable expectation of privacy” in the area or item searched or seized. That determination requires the court to ascertain whether an individual has exhibited a subjective expectation of privacy in the place or object in question and whether that subjective expectation is one society recognizes as reasonable. The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in each case.” Hoffman v. People, 780 P.2d 471 (Colo. 1989). The Colorado Supreme Court has determined there are circumstances where a person does not have a subjective expectation of privacy. These circumstances result in exceptions to the warrant requirement.
Exceptions to the Warrant Requirement
Exceptions to the warrant requirement are found when a person does not have an expectation of privacy that is reasonable. Here are some of the most common circumstances when law enforcement may conduct a warrantless search:
- The most basic exception is when a person voluntarily consents to their property being searched by law enforcement. If a person is stopped for speeding and consents to a police officer asking to search the vehicle, any incriminating evidence found inside the vehicle can be used against the person.
- A warrantless search is lawful when police search someone after a lawful arrest. The purpose of this search is to protect police officers’ safety and to allow the search for evidence of a crime that may be discarded. However, a search in this situation is limited in scope. Law enforcement may search a person either at the same time or immediately following a lawful arrest. The search must be confined to the area in the arrestee’s immediate control, or “wingspan,” meaning the area immediately around the arrestee. People v. Hufnagel, 745 P.2d 242 (Colo. 1987).
- Police may also search an individual prior to an arrest. If law enforcement has reasonable suspicion to suspect a crime has been committed or is about to be committed, they may search an individual only if there is a reasonable basis to believe the person detained might be armed. If a reasonable suspicion exists, the search is limited to determining whether the person is armed with a weapon. This type of search serves to protect officer safety. Referred to as a Terry Stop, three elements must exist to justify a lawful search:
- The officer must have a reasonable purpose to detain the person searched,
- The search “frisk” must be the result of a reasonable suspicion the person is armed, and
- The scope of the search must be limited to the purpose of determining whether the person is armed. People v. Martinez, 801 P.2d 542.
- A fourth lawful warrantless search is that of an automobile. Generally, the automobile exception allows police to search a vehicle if they have probable cause to believe it contains evidence of a crime. Officers may also search a container in the vehicle if they believe it holds the object of their search. People v. Reyes, 956 P.2d 1254 (Colo. 1998).
- Police may also seize property that is in “plain view.” This exception to the warrant requirement is valid only when law enforcement have a lawful basis to be in the proximity of the items seized, the evidence is uncovered inadvertently, and the items are incriminating. People v. O’Hearn, 931 P.2d 1168 (Colo. 1997). Imagine an officer stops a vehicle for speeding. While discussing the traffic violation with the driver, the officer notices illegal drugs sitting on the backseat. In this case, the officer may legally seize the illegal drugs.
- Another exception to the warrant requirement is where exigent circumstances exist. Under this exception, a police officer may search a person if the officer objectively and reasonably believes there is a threat to the lives or safety of themselves or others and the scope of the search is reasonable to that determination. People v. Brunsting, 2013 CO 55 (Colo. 2013).
These are the most common exceptions to a warrantless search. If a warrantless search or seizure occurs outside of these exceptions or does not meet the criteria making these warrantless searches lawful, a lawyer may file a motion to suppress the illegally obtained evidence that came to light because of the illegal search. Such illegally obtained evidence is referred to as “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471 (1963). Having incriminating evidence against a defendant suppressed can result in the charges being substantially reduced or even the case being dismissed.
Examining the validity of a search or seizure involves a detailed examination of each fact and circumstance of the arrest. The attorneys at The Bussey Law Firm, P.C. are experienced in fighting the validity of warrantless searches. If you’ve been charged with a crime, you need experienced and knowledgeable attorneys like those at The Bussey Law Firm, P.C. to analyze the lawfulness of the arrest and gathering of evidence. Call us at (719) 401-0585 to discuss your case.