Under both federal and state law, police in Colorado must have probable cause to believe that you committed a crime before they can arrest you or conduct a warrantless search of your person, vehicle, or property.
Searches or arrests without probable cause or a valid search warrant may be a violation of your constitutional rights. However, there are many exceptions to the constitutional protections against unreasonable search and seizure.
In this article, our Colorado criminal defense lawyers will address:
- 1. What is probable cause?
- 2. What is reasonable suspicion for traffic stops?
- 3. What is probable cause to search your car?
- 4. What is probable cause to search your house?
- 5. When do police need a search warrant?
- 6. What is probable cause to make an arrest?
1. What is probable cause?
Police officers need to have probable cause to
- make an arrest,
- conduct a search of an individual’s person or property, or
- issue a warrant to make an arrest or search.
Probable cause requires circumstances, observations, or evidence that gives a prudent person the belief that an individual has committed a crime or evidence of criminal activity will be found.
The United States Constitution prohibits unreasonable search and seizure without probable cause. 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.
The other way of making an arrest or conducting a search is by getting a warrant from the court. The judge is supposed to review the evidence and affidavits submitted to determine whether there exists probable cause to issue an arrest warrant or search warrant.1
2. What is reasonable suspicion for traffic stops?
In Colorado, police need to have “reasonable suspicion” to make a traffic stop. This is a lower threshold than probable cause.
Reasonable suspicion requires the police officer to have articulable facts that the driver is engaged in some criminal activity.
Even a minor traffic violation is enough for police to justify a traffic stop. For example if a driver was:
- rolled through a stop sign,
- had a broken tail light, or
- failed to signal a lane change,
the police can stop the driver.
When communicating with the driver, the officer may then become suspicious of other criminal activity – especially if the car smells of alcohol or marijuana. And the police will run the person’s name to see if there are any warrants.2
See our related article, Colorado “stop and identify” law – What are my rights?
3. What is probable cause to search your car?
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.
The simplest way for the police to search your car without a warrant is if you consent to a search. Police may imply that you should just consent to a vehicle search to make things easier for you.
However, if you consent to a vehicle search, any evidence they find can be used against you. Even if someone else placed something in your car, you may be charged because you were in control of the vehicle.
3.2. 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.
3.3. Search incident to a lawful arrest
If the police make a lawful arrest, 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 the immediate control of the arrested individual.
3.4. 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 is conducted under standard inventory policies.
3.5. Probable cause to believe there is evidence of a crime
If peace officers have probable cause to believe there is evidence of criminal activity, they may also be able to search the vehicle under the “vehicle exception.”
People are considered to have a lower expectation of privacy for items in their vehicles. The fact that a vehicle can be moved also is used to justify the vehicle exception.3
4. What is probable cause to search your house?
In most cases, the police need a search warrant to search your house. The police generally need to go to a judge and show probable cause that there is evidence of criminal activity inside your home before they can get a search warrant.
Showing probable cause for a warrant may include providing:
- sworn statements,
- witness statements,
- statements from police informants,
- surveillance evidence, or
- other relevant information.
If the judge finds there is a reasonable basis to believe there is evidence of a crime in your home, the judge may issue a search warrant to allow the police to search your home.
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.4
5. When do police need a search warrant?
Searches and seizures inside your home without a warrant are presumptively unreasonable and a possible violation of your constitutional rights.2 However, there are limited exceptions when the police can search your home without a search warrant.
5.1. Consent to search your home
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.
5.2. 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.
5.3. Exigent circumstances
If the police have a reasonable belief that they need to enter a home to prevent physical harm to another person or destruction of evidence, they may also be able to enter without a warrant.5
6. What is probable cause to make an arrest?
Police need probable cause to make an arrest. Police need an arrest warrant unless the suspect committed a criminal offense in the arresting officer’s presence.
To get an arrest warrant, the police or prosecutor have to show a judge that there is a reasonable belief that the suspect has committed or is going to commit a crime. The police must be able to articulate specific facts:
- to show probable cause, and
- cannot be based on general suspicion.
Many arrests involve criminal activity or suspected criminal activity that is committed in the presence of an officer. If the police officer witnesses activity to believe a person has committed a public offense, misdemeanor, or felony in the officer’s presence, they can make an arrest.
For example, a police officer is conducting a traffic stop when they smell alcohol on the driver’s breath. They may have probable cause to believe the driver is violating Colorado’s DUI laws and place the suspect under arrest.6
- 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. Martinez (Court of Appeals of Colorado, Division Five, 2001) 32 P.3d 520.
- 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.”‘).
- Payton v. New York, (1980) 445 U.S. 573. See also C.R.S. 16-3-301 – 16-3-306.
- District of Columbia v. Wesby (2018) 138 S. Ct. 577.