7.1 - Preliminary Hearings7.2 - Pretrial Conferences7.3 - Pretrial Motions Processs7.4 - Use of Statements7.5 - Use of Seized Evidence7.6 - Eyewitness Identification Procedures7.7 - Interlocutory Appeals7.8 - Sentencing7.9 - Boulder Integrated Treatment Court


The U.S. and the Colorado Constitutions protect citizens against certain other types of government intrusion in their lives. The Fourth Amendment protects citizens against unreasonable searches and seizures by police. Article II, Section 7, of the Colorado Constitution contains a guarantee against unreasonable searches and seizures similar to the guarantee in the Fourth Amendment. The basic inquiry, then, is whether a particular search was "reasonable." The courts apply the exclusionary rule in this context in much the same way that it is applied in connection with improperly obtained statements.

Evidence that is seized in violation of the constitutional requirements will be excluded from use at trial. The purpose of the exclusionary rule is prophylactic; it is aimed at deterring future police violations of constitutional rights. The exclusionary rule is premised on the idea that it is more important, in certain circumstances, to protect the constitutional rights of citizens, than it is to use the evidence against a particular defendant. Generally, not only must the unconstitutionally obtained evidence be suppressed, but so must all evidence obtained as a result or related to the primary illegal evidence. Evidence so obtained is often referred to as the fruit of the poisonous tree.

Under both constitutions, there is a preference that police obtain a search warrant before conducting a search. The warrant requirement ensures that the police action will be reviewed by a neutral and detached magistrate who knows the law before any search is undertaken. A search that is conducted pursuant to a search warrant is presumed to be reasonable.

A search warrant is obtained by the police in the following fashion. Police officers who wish to search a particular location prepare an affidavit setting forth the facts they believe establish probable cause to believe that a crime was committed and that evidence of that crime is located in a particular place. The district attorney may occasionally review this affidavit. The affidavit is submitted to a judge, who reviews it and makes an independent determination of whether probable cause exists to support the search. If the determination is that the affidavit establishes probable cause, the judge will sign and issue a search warrant. The warrant should specifically describe the place to be searched and should be executed by the police without unreasonable delay.

A defendant who is seeking to suppress the results of a search conducted pursuant to a search warrant has the burden of persuading the trial court that the search warrant should not have been issued in the first place. The defendant must persuade the trial judge that the issuing judge was mistaken in believing that the affidavit established probable cause, or that the police lied or recklessly disregarded the truth in the affidavit, or that the warrant was overly broad or improperly executed. The trial court should consider the totality of the circumstances in making the necessary determinations.

Most searches are not conducted with a warrant. The basic inquiry into a warrantless search is the same: was the search was "reasonable." A warrantless search is presumed to be unreasonable, so the prosecution has the burden of persuading the trial judge that the search falls into one of the many exceptions to the warrant requirement.

It is beyond the scope of this manual to discuss all of the exceptions. Law schools have entire courses devoted to the topic. However, a brief overview of the more commonly used exceptions is in order.

The abandonment exception applies when a person abandons property; the person cannot claim that a search was unlawful if the person has abandoned the property that was seized in the search. The consent exception applies when a person knowingly and voluntarily consents to a police search of the property. The good faith exception applies when the police mistakenly conduct a search, but do so in a good faith and reasonable belief that they are acting properly. Since the exclusionary rule is designed to deter future misconduct, it is not applied when the police honestly and reasonably believed they were doing nothing wrong. A search that is conduct incident to an arrest does not require a warrant because law enforcement officials who are properly taking someone into custody have the right to protect themselves from the danger that the person might have a weapon, and to protect the jail from the introduction of contraband. This exception allows the police to search the arrestee and the limited area within the premises, or vehicle in which he is arrested. A closely related exception is the inventory search exception which allows the admission of evidence seized from a defendant while the defendant is being processed into a jail, and the admission of items seized from a car that is being properly impounded buy the police.

The inevitable discovery exception applies when the trial court finds that evidence that was illegally seized would have inevitably have been discovered in proper fashion. For example, if the police find a gun while illegally searching a person, but it turns out there was a warrant for the arrest of that person, and the person would have been arrested and searched incident to that arrest anyway, the gun may well be admitted by the trial court even though it was initially seized in an illegal fashion. The plain view exception applies to evidence that is seized without a warrant by a police officer who, while properly in a particular location, seizes evidence of a crime in plain view. For example, an officer who is properly in a house executing a search warrant for a stolen weapon, can seize cocaine and drug paraphernalia that is in lain view on a table in the living room. Finally, certain types of roadblocks are exempted from the warrant requirement. A roadblock that is properly set up to catch drunk drivers, and that is properly administered, can require drivers to stop and show identification, even if there is no evidence of any traffic violation. Evidence that is seized pursuant to a proper roadblock may well be admissible even though there was no warrant.

It is important to remember that not every action that uncovers physical evidence against a defendant is a "search." A search implies a looking for or seeking out that which is otherwise concealed from view. A search is essentially an intrusion into that reasonably expected to be private. The courts determine reasonableness by first determining whether the suspect had a reasonable expectation of privacy in the area or item that was searched, and whether society recognizes that expectation of privacy. A police officer who looks into a car after stopping the driver for speeding is generally not considered to have 'searched' the car. Nor is it usually considered a search if an officer looks through a window from a public sidewalk.

It is also important to remember that not every search violates a reasonable expectation of privacy. If a person does not have a reasonable expectation of privacy that is recognized by society, then no constitutional violation occurs if a search is conducted. For example, airports have long conducted searches of persons for weapons and other dangerous objects. The intrusiveness of these searches increased dramatically after the terrorist attacks in the fall of 2001. Everyone knows, or should know, that these sorts of searches will be conducted at the airport. Therefore, no one can reasonably expect to keep private the contents of his or her suitcase, and no violation occurs if airport security searches that suitcase.

Whether the citizen's expectation of privacy is "reasonable" depends on all of the surrounding circumstances. In an interesting 1997 case, the Colorado Supreme Court held that a man who was living in a tent on unimproved and apparently unused land had a reasonable expectation of privacy in the tent and held that the police acted improperly in searching the tent and his backpack, which was inside the tent, without a warrant.

The exclusionary rule does not apply to all criminal proceedings nor all stages of a criminal prosecution. The rule does not, for example, apply to evidence presented to the grand jury or at bail proceedings, preliminary hearings, probation or parole revocations or extradition proceedings. The exclusionary rule does not apply in civil cases.

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