In Colorado, the police need probable cause to believe you have engaged in criminal activity before they can place you under arrest. The police generally have to witness criminal activity or have a warrant for your arrest.
In some cases, the police may lawfully detain you for a limited time without placing you under arrest. After an arrest, the suspect is generally booked and may be released on bail to wait for their court appearance.
In this article, our Denver Colorado criminal defense lawyers will address these frequently-asked-questions (faqs):
- 1. Why was I arrested in Colorado?
- 2. Have I been arrested or detained?
- 3. Why did I have an arrest warrant?
- 4. What happens during the arrest procedure?
- 5. What if the police did not read my Miranda warnings?
- 6. What happens after an arrest?
In Colorado, law enforcement agency officers need probable cause to make an arrest.
1. Why was I arrested in Colorado?
The police need probable cause to make an arrest in Colorado. If the circumstances, evidence, and observations would give a prudent person the belief that a suspect has committed a felony or misdemeanor, then the police can make an arrest.
However, if the police do not witness the criminal activity, they may have to go to a judge to get a warrant to make an arrest. The police and prosecutors may submit evidence and affidavits to support their case and if the judge finds probable cause, they may issue a warrant to arrest the suspect.
In some cases, a traffic stop can lead to an arrest. If peace officers pull over a driver for a traffic violation, they may run their name through a database. If the driver has a warrant for their arrest, the police will take the driver into custody.1
Lack of probable cause
The police may wrongfully arrest an individual without having probable cause. However, even if the police violated your rights by arresting you without probable cause, the time to challenge your arrest is not during the arrest.
Fighting back during an arrest or booking may result in additional criminal charges and possible injury. Instead, you may have to wait until you are released on bail so you can talk to your attorney about the situation and your wrongful arrest. (Read our article on attorney-client privilege in Colorado.)
2. Have I been arrested or detained?
If you are not under arrest, you generally have the right to calmly walk away from a police interaction. However, the police may be able to temporarily detain you without having probable cause to make an arrest.
In Colorado, police generally need to have “reasonable suspicion” to detain you. They can detain you for long enough to reasonably conduct an investigation to determine if there is probable cause to make an arrest.2
De facto arrests
Unfortunately, it may not be clear if you have been lawfully or unlawfully detained or arrested. The facts and circumstances of the police interaction may determine whether your detention turned into an unlawful arrest. Factors that may determine whether your detention has turned into a de facto arrest include:
- The length of the detention
- You were not free to leave
- The amount of force used by the police
- The need for the use of force3
See our related articles on Colorado “stop and identify” laws – What you need to know and Colorado “stop and identify” law – What are my rights?
3. Why did I have an arrest warrant?
If a judge or grand jury has found probable cause to support criminal charges, you may have a warrant issued for your arrest. Moreover, if you missed a court date or some other judicial proceeding, a bench warrant may have been issued for your arrest.
In order to get a warrant issued for your arrest, the police and prosecutors may provide
- sworn statements,
- witness statements,
- statements from police informants,
- surveillance evidence, or
- other relevant information to a judge.
If the judge finds there is probable cause to believe you are involved in criminal activity, they may issue an arrest warrant.4
Bench warrants
A bench warrant may be issued for failing to appear in court. This may include minor violations, including traffic or municipal offenses. It can also be issued for failing to pay a court-ordered fee, failing to pay child support, or failing to appear for jury duty.
Many people may be unaware they have a warrant. If you have moved recently or not updated your mailing address you may not have received notice of a court appearance or that you have a bench warrant. If you have a bench warrant issued for your arrest, your attorney may be able to appear in court for you to quash the warrant so you will not be arrested.5
Miranda warnings are necessary before “custodial interrogation.”
4. What happens during the arrest procedure?
An arrest occurs when the police take you into custody and you are not free to leave. This generally involves placing the suspect in handcuffs and placing them into the police car.
Miranda warnings
The police arrest is generally accompanied by a reading of your “Miranda Rights” or “Miranda Warnings.” Miranda warnings are generally required before the police can interrogate you or question you. These warnings include:
- The right to remain silent
- Anything you say can and will be used against you
- You have the right to an attorney
- You have the right to have your attorney present when being questioned
- If you cannot afford a lawyer, one will be appointed to you
- You can exercise these rights at any time
The police will then ask if you understand your rights. After that point, if the police ask you any questions, your answers can be used against you. After the police read you your rights, the best course of action may be to say you do not want to answer any questions until you speak to your lawyer.6
Pat-downs and searches incident to arrest
After an arrest, the police may pat you down or frisk you to see if you are carrying any weapons. They may also search the area immediately around you to look for weapons or evidence.
The police may then take you to the jail or police station for the booking process.7
5. What if the police did not read my Miranda warnings?
The police in Colorado are to inform you of your Miranda rights when you
- have been arrested and
- are being interrogated.
Many people are under the misconception that if the police do not read them their rights they can automatically win their case. The Miranda warnings only apply to custodial interrogation.
If the police fail to read your Miranda warnings and question you during custodial interrogation, your attorney may be able to file a motion to suppress any statements you made during the unlawful interrogation. Similarly, questioning you after you say you want to talk to your attorney may also be excluded from evidence.8
6. What happens after an arrest?
An arrest is generally followed by the booking process at the police department and then posting a bail bond to get released from jail. Booking consists of
- taking your photograph (“mugshot”),
- taking your fingerprints,
- gathering other basic information, and
- being searched with an inventory taken of your possessions.
Depending on the criminal charges, you may be held for a period of time or released on a bail bond. To be released on bond, it may require putting up money to ensure you will return for your court date or paying a bail bond company a fee to secure your release.9
As soon as possible after an arrest, you should contact your Colorado criminal defense attorney. From our experience, we are often able to find defects in the arrest warrant or arrest procedures that could lead to your charges being dismissed or reduced.
Additional Reading…
In California? See our article on California arrest warrants.
In Nevada? See our article on the Nevada definition of arrest (NRS 171.104).
Legal References
- CRS 16-3-102. CRS 16-1-106. See People v. Deaner (Colo. 2022) 517 P.3d 66.
- See People v. E.V. (Court of Appeals of Colorado, Division Two, 2022) 516 P.3d 542.
- See People v. Davis (Colo. 2019) 449 P.3d 732.
- See People v. Gall (Colo. 2001) .
- See also People v. Perry (Court of Appeals, 2002) .
- Miranda v. Arizona (1966) 384 US 436. CRS 16-3-406. House Bill 23-1155.
- See Mich v. Long (1983) .
- See People v. Begay (Colo. 2014) 325 P.3d 1026.
- See CRS 16-4-102.