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What Constitutes Unreasonable Search and Seizure in Colorado?

On behalf of Dolan + Zimmerman LLP August 29, 2022

In Colorado and all states in the country, there are laws regarding when law enforcement is permitted to search you, your home, your car, and anything else belonging to you. Under the United States and Colorado Constitution, you are entitled to be free from unreasonable searches and seizures. Law enforcement cannot search you or your property unless they have obtained a search warrant or the search and seizure falls within one of the warrant exceptions recognized by the court. 

 

What is a Search Warrant?

A search warrant gives law enforcement the right to search a property or a person. A search warrant is issued if law enforcement has probable cause to believe that criminal activity is occurring or has occurred at a specific location. The warrant must describe the place to be searched or the person/items to be seized as accurately as possible. Additionally, a Colorado or federal judge must legally execute the warrant. Suppose law enforcement searches you or a property, or seizes you or any items, without a search warrant. In that case, it must fall into a valid exception or it is a violation of your constitutional rights. 

Warrant Exceptions

There are several exceptions to the warrant requirement. Some of the most common exceptions utilized by law enforcement include the following:

Consent

One of the simplest exceptions to the warrant requirement is consent. If you voluntarily consent to a search of your person, car, or property, the police do not need to obtain a search warrant. Consent must be knowing and voluntary; it is possible to challenge consent in court if you believe you were coerced into consenting.

Incident to Arrest

Anytime you’re arrested, the police have the right to search your person. They are typically looking for weapons or other illegal/incriminating items before taking you into custody. If the arrest is challenged in court and is determined to be unlawful, any items recovered as a result of the search may be prohibited from being used in court.

Terry Stop

A terry stop, most often referred to as a “stop and frisk,” is one of the most common exceptions to the warrant requirement. If law enforcement has reasonable suspicion to believe that a person is committing or about to commit a crime, they are allowed to stop the individual. If they also have reasonable suspicion that the individual is armed, the officers can do a pat down of their outer clothing to frisk for weapons. If they feel a weapon during their frisk, they are permitted to seize it.  There is a lot of controversy surrounding stop-and-frisk incidents, as racial profiling is rampant; stop-and-frisk disproportionately affects young people of color. 

Exigent Circumstances

If law enforcement is pursuing a suspect and the suspect enters private property, police are sometimes allowed to continue their pursuit and follow the suspect into the property without first obtaining a warrant. Pausing the pursuit to obtain a warrant could lead to physical harm to others in the property, the escape of the suspect, or the destruction of relevant evidence. Immediate action is needed, so a warrant would not be required here. 

If you or your property was searched and/or seized and no warrant was obtained and there was no exception to the warrant requirement, your constitutional rights may have been violated and you should speak with a lawyer right away. Your Boulder criminal defense lawyer can file a motion to dismiss to request that the court exclude any evidence that was recovered as a result of an unlawful search and/or seizure. Contact us today to schedule a consultation.