Colorado police must have probable cause to believe you committed a crime before they can
- arrest you or
- conduct a search of your person, vehicle, or property.
Searches or arrests without probable cause may be a violation of your state and federal constitutional rights. However, there are exceptions depending on the circumstances.
In this article, our Colorado criminal defense lawyers address the following topics re. probable cause:
- 1. Overview
- 2. Traffic Stops
- 3. Vehicle Searches
- 4. Home Searches
- 5. Warrants Exceptions
- 6. Arrests
- Additional Reading
1. Overview
Probable cause requires circumstances, observations, or evidence that gives a prudent person the belief that you committed a crime or evidence of criminal activity will be found.
The United States Constitution prohibits unreasonable search and seizure without probable cause. Colorado police officers generally need to:
- observe evidence of criminal activity, or
- witness the criminal activity taking place
to have probable cause to search or make an arrest without a warrant.
Otherwise, the police must get an arrest warrant or search warrant from the court first. The judge is supposed to review the evidence and affidavits submitted to determine whether there exists probable cause to issue the warrant.1
2. Traffic Stops
In Colorado, police need to have “reasonable suspicion” to pull you over for a traffic stop. This is a lower threshold than probable cause.
Reasonable suspicion requires the police officer to have articulable facts that you engaged in some unlawful activity. Even a minor traffic violation is enough for police to justify a traffic stop. For example, the police can stop you if you:
- were speeding,
- rolling through a stop sign,
- had a broken tail light, or
- failed to signal a lane change.
When communicating with you, the officer may then become suspicious of other criminal activity – especially if your car smells of alcohol or marijuana. The police will also run your name to see if there are any warrants.2
See our related article, Colorado “stop and identify” law – What are my rights?
3. Vehicle Searches
In most cases, the police need a search warrant to search your vehicle in Colorado. However, there are a number of exceptions that allow the police to search your car without a warrant.
You Gave Consent
The simplest way for the police to search your car without a warrant is if you consent to a search. We always recommend you politely decline when the police ask to search your car.
If you consent to a vehicle search, any evidence they find can be used against you. Even if someone else placed something illegal in your car such as drugs, you may be charged because you were in control of the vehicle.3
The Police See Evidence in Open View
If the police see drugs, a gun, or other evidence of criminal activity in clear view through your vehicle’s windows, they may not need a warrant to search your car.4
Search Incident to a Lawful Arrest
If the police lawfully arrest you, they may be able to do a warrantless search of your person and the area immediately within your control. If you are a driver, the area within your control may include the areas:
- under your seat,
- in the glove box, ashtray, or
- side door compartments.
However, this generally does not include areas like the trunk of the car because it is not within your immediate control.5
Inventory Search After Your Car Is Impounded
If your vehicle is impounded after an arrest or accident, the police may be able to do an inventory search of the vehicle. If the police find evidence of criminal activity during the inventory search, that evidence may be used against you in a trial court.
In order for the police to conduct a valid inventory search, the vehicle must be lawfully impounded, and the search must be conducted under standard inventory policies.6
There is Probable Cause to Believe There Is Evidence of a Crime
If peace officers have probable cause to believe there is evidence of criminal activity in your car, they may also be able to search it under the “vehicle exception.”
There is a lower expectation of privacy for items in our vehicles than for items in our homes. The fact that a vehicle can be moved is used to justify the vehicle exception.7
4. Home Searches
In most cases, the police need a search warrant to search your house in Colorado. This requires the police to go to a judge and show probable cause that there is evidence of criminal activity inside your home.
Showing probable cause for a warrant may include providing:
- sworn statements,
- witness statements,
- statements from police informants,
- surveillance evidence, or
- other relevant information.
A search warrant generally has to specify the location to be searched and the specific type of evidence police are looking for. Search warrants may also have a limited time frame to be served.8
5. Warrants Exceptions
Searches and seizures inside your Colorado home without a warrant are presumptively unreasonable and a possible violation of your constitutional rights. However, there are limited exceptions when the police can search your home without a search warrant.
You Gave Consent
If the police ask to come into your home and “look around,” and you say yes, then they may not need a warrant. If you let the police search your house and they find evidence of criminal activity, they may be able to use that evidence against you.9
The Police Are in Hot Pursuit
The “hot pursuit” exception allows for warrantless searches in some emergency situations. If the police are chasing a suspect who they see run into a house, they may be able to enter the property without a warrant.10
There Are Exigent Circumstances
Suppose the police have a reasonable belief that they need to enter a home to prevent physical harm to another person or destruction of evidence. In that case, they may also be able to enter without a warrant.11
6. Arrests
Colorado police can arrest you without a warrant if they witness you commit a public offense, misdemeanor, or felony in their presence. For example, if police pull you over for erratic driving and you admit to drinking, they may have probable cause to arrest you for DUI.
For crimes that allegedly occur outside of the police’s presence, they usually need an arrest warrant first. To get one, the police or prosecutor have to show a judge that there is a reasonable belief that you committed – or are going to commit – a crime. The police must be able to articulate specific facts:
- that show probable cause and
- are not based on a general suspicion.12
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Probable Cause, Probability, and Hindsight – Journal of Empirical Legal Studies
- Putting Probability Back into Probable Cause – Texas Law Review
- Probabilities in Probable Cause and Beyond: Statistical Versus Concrete Harms – Law and Contemporary Problems
- Probable Cause Pluralism – A discussion of the problems inherent in probable cause by Yale Law Journal
- Probable Cause Revisited – In-depth review by Stanford Law Review
Legal References
- The Constitution of the United States, Fourth Amendment. See also the Colorado Constitution, Article II, Section 7.
- People v. Esparza (Colorado Supreme Court, 2012) 2012 CO 22 (“Because the dog sniffs of the defendant’s vehicle in these cases were neither a search cognizable under article II, section 7 of the Colorado Constitution nor the fruit of an unlawful search or seizure, the district court’s suppression order is reversed”).
- People v. Munoz-Gutierrez (Colo. 2015) 342 P.3d 439.
- See People v. Glick (Colo. 2011) .
- See People v. Coates (Colo. 2011) .
- People v. Thomas (Colo.App. 2021) 488 P.3d 1191.
- People v. Martinez (Court of Appeals of Colorado, Division Five, 2001) 32 P.3d 520. Quintana v. City of Westminster (Colo.App. 2000)
- People v. Mendoza-Balderama (Supreme Court of Colorado, 1999) 981 P.2d 150 (‘Reasonableness “is measured in objective terms by examining the totality of the circumstances.”‘).
- People v. Fuerst (Colo. 2013) 302 P.3d 253
- People v. Kluhsman (Colo. 1999)
- Payton v. New York, (1980) 445 U.S. 573. People v. Mendoza-Balderama (Colo. 1999) . See also C.R.S. 16-3-301 – 16-3-306.
- District of Columbia v. Wesby (2018) 138 S. Ct. 577.