Click to Schedule a Consultation
Colorado trial attorneys

What happens when the police conduct a warrentless search?

On behalf of Dolan + Zimmerman LLP October 4, 2019

In most cases, the police need to have a search warrant issued by a judge before they can enter a private residence, search the residence, or seize items from the residence. If they do not have a warrant, they are not permitted to search a residence or seize items that they find in it without either consent or exigent circumstance.

What happens when the police don’t follow these constitutional rules? How do their actions affect the evidence that prosecutors can bring to court? The general rule, called the exclusionary rule, is that illegally obtained evidence cannot be used against an accused person in court. The application of this rule can be nuanced and complex, as shown in the case of a man facing two felony DUI charges, recently reviewed by the Colorado Supreme Court.

Tainted evidence and “the fruit of the poisonous tree”

The question put to the Supreme Court was whether a trial court had correctly followed the exclusionary rule when it suppressed evidence obtained by police who made a warrantless entry into the man’s residence.

Any evidence the police gain through improper means becomes tainted and cannot be used in court. Additionally, any evidence the police might gather by following up on tainted evidence is also tainted. Such evidence is called “the fruit of the poisonous tree.”

Prosecutors admitted that the police first smelled alcohol on the man’s breath when they followed him into his apartment without legal justification.  The man later stepped outside, as did the officers, and they had him take field sobriety tests, which he failed. The man also consented to a blood test after he and the officers left his apartment.

The defense moved to suppress evidence regarding the field sobriety and blood tests, and trial court granted that motion. It said the trial court could not admit any evidence the police gathered inside the man’s apartment or after he stepped outside.

Were the blood and field sobriety tests actually tainted?

The prosecution appealed the trial court’s decision. It argued that the blood and field sobriety tests weren’t the result of the police’s illegal search and seizure.

The police first got involved after the staff of a nearby hospital called to let them know that a heavily intoxicated man had left to drive home. The police found the man sitting in the driver’s seat of his car. The ignition was off, and the man said he wasn’t driving. He was only getting something from the vehicle. But he also admitted that he was in no state to drive.

These facts suggested the police could have had probable cause to arrest the man and administer the blood and field sobriety tests even before they entered his apartment. As a result, the Colorado Supreme Court held that because the trial court failed to address the question whether the evidence it suppressed was independent of the earlier unlawful entry into the man’s apartment, its order suppressing the evidence was not adequately supported by its factual findings. Therefore, the Colorado Supreme Court sent the case back to the trial court with instructions to determine whether the evidence acquired after leaving the defendant’s home was in fact derivative of the unlawful entry at all and if so whether the subsequent searches in which that evidence was discovered were genuinely independent sources of that evidence.

The trial court must decide if the tests were tainted

This decision highlights some of the nuanced questions surrounding our rights against unconstitutional searches and seizures. When the police break the rules, they taint the evidence they gather. By challenging that evidence, defense lawyers help keep the police and prosecutors honest, and protect the rights of people accused of criminal offenses.