“Search & Seizure” Laws in Colorado – How It Works

In Colorado, the police are not allowed to search you or your property unless:

• you consent to the search, or
• they obtain a valid search warrant, or
• the situation falls under one of the exceptions to the search warrant requirement.

If you are charged with a crime based on evidence obtained through an unlawful search, we can file a motion to suppress that evidence. If the judge grants the motion, any unlawfully obtained evidence may be “thrown out of court.” This can lead to the charges against you:

• being reduced or
• thrown out altogether.¹

In this article, our Denver criminal defense lawyers will address the following key issues regarding searches and seizures in Colorado.

• 1. The 4th Amendment
• 2. Search Warrant Requirements
• 3. Search Warrant Exceptions
• 4. Fighting an Unlawful Search
• 5. If You Have a Weapon
• 6. Canine Searches
• Frequently Asked Questions
• Additional Reading

1. The 4th Amendment

The Fourth Amendment protects you against unreasonable searches by the government.

It does not ban all searches. Instead, it establishes a standard that police and government officials must follow before intruding on your privacy. Its primary function is to balance the government’s need to gather evidence against your right to privacy.

If you have no reasonable expectation of privacy (like garbage left on a curb), the police looking at it is not considered a “search” under the Constitution.

Note that the Fourth Amendment applies to searches by both:

• federal law enforcement agencies (such as the FBI and U.S. Immigration and Customs Enforcement, or “ICE”) and
• state and local police in Colorado and throughout the U.S.¹

2. Search Warrant Requirements

To be valid under the U.S. and state constitutions, a search warrant in Colorado must:

• Be based on probable cause; and
• Be supported by a written oath or affirmation; and
• Describe the place to be searched, or the person or thing to be seized, as accurately as possible; and
• Be legally executed by a Colorado or federal judge.

As mentioned above, a warrant is not required for a police search if you consent to the search or if there is a search warrant exception that applies to your situation.

Similarly, if police wish to search outside the bounds of an existing search warrant, they need your consent or a lawful warrant exception.²

3. Search Warrant Exceptions

Generally speaking, Colorado police do not need a search warrant in any of the following cases.

• You voluntarily consent to the search.³
• The police are conducting a Colorado “protective sweep” of the area incident to a lawful arrest in order to search for dangers, such as a person hiding nearby.⁴
• The search is incident to a lawful arrest and the police are looking for weapons that could be used against them or for criminal evidence that might otherwise be destroyed.⁵
• The police are engaging in a “stop and frisk” (also known as a “Terry stop”) – that is, a pat down of the outer clothing of a criminal suspect to look for weapons while the suspect is being temporarily detained.⁶
• The search takes place at an international border (an “inspection search”).⁷
• The search is of a vehicle and the police have “probable cause” to believe it contains evidence of a crime — the so-called “automobile exception” to the warrant requirement.⁸
• The police see an obviously incriminating item that is in “plain view” while they are conducting an otherwise lawful search.⁹
• It is an emergency situation and a search is necessary to prevent physical harm or serious property damage, or to locate a fleeing suspect.¹⁰

To lawfully search a trunk, officers must usually have probable cause that it contains evidence of a crime.

 4. Fighting an Unlawful Search

If you are the victim of an unlawful search and seizure by Colorado police, we can file a “motion to suppress,” asking the court to exclude all the evidence obtained from the unlawful search.

This is known as the “exclusionary rule.” Fortunately, this rule applies not only to illegally obtained evidence but also to any evidence the police find based on the original illegally seized evidence — the so-called “fruit of the poisonous tree.”

Example: Police unlawfully wiretap your phone without a warrant. During the call, you mention a hidden storage locker where you keep stolen jewelry. Based only on that illegal call, police go to the locker and find the jewelry. The poisonous tree is the illegal wiretap (the initial constitutional violation). The fruit is the stolen jewelry found in the locker.

Even though the jewelry is real evidence of a crime, the court can exclude it because the police found the “fruit” (jewelry) only by planting the “poisonous tree” (illegal wiretap). The jewelry as evidence is tainted and inadmissible.

The exclusion of evidence is usually handled in a separate hearing well in advance of a criminal trial. If we get enough evidence suppressed, the D.A. may be forced to drop your entire case for lack of proof.¹¹

Learn more about police misconduct in Colorado. 

5. If You Have a Weapon

Even if you have a Colorado permit to carry a concealed weapon, police may temporarily disarm you during a lawful stop if they have an articulable suspicion of criminal activity.

Unless the officer places you under arrest, however, your weapon must be returned to you at the end of the stop.¹²

6. Canine Searches

Under both federal and Colorado law, police are allowed to use trained drug-detection dogs during traffic stops.

A canine “sniff” of the exterior of a vehicle is not considered a search under the Fourth Amendment so long as the sniff does not prolong the stop beyond the time reasonably required to address the traffic violation. However, officers may not extend a stop—even briefly—just to wait for a drug dog unless they already have reasonable suspicion of criminal activity.

Colorado imposes an additional restriction under the state constitution. When a drug-detection dog is trained to alert to marijuana, the sniff does constitute a search because marijuana can be lawful to possess in Colorado. Therefore, officers must have probable cause before deploying such a dog.¹³

A dog sniff at a person’s home is treated even more strictly. Bringing a drug-detection dog to the front porch or other “curtilage” of a residence without a warrant violates the Fourth Amendment.¹⁴

There are many ways to challenge the lawfulness of police searches.

Frequently Asked Questions

Can police search my car without a warrant during a traffic stop?

Police can search your car without a warrant if you consent to the search or if they have probable cause to believe your vehicle contains evidence of a crime. However, a simple traffic violation alone doesn’t give police the right to search your car. You have the right to refuse consent to a search.

What happens if police find evidence through an illegal search?

If police conduct an illegal search, your lawyer can file a “motion to suppress” to exclude that evidence from court. Under the “exclusionary rule,” illegally obtained evidence and any additional evidence found because of the illegal search (called “fruit of the poisonous tree”) can be thrown out, which may result in reduced charges or case dismissal.

Do I have to let police search me if they ask?

No, you don’t have to consent to a search. Police need either your voluntary consent, a valid search warrant, or a legal exception (like searching you after a lawful arrest) to search you or your property. You can politely say “I do not consent to a search” without being rude or resisting.

Can police use drug dogs during any traffic stop?

Police can use drug detection dogs during traffic stops, but they cannot extend the stop just to wait for a dog unless they already have reasonable suspicion of criminal activity. In Colorado, if the dog is trained to detect marijuana, police need probable cause before using the dog since marijuana possession can be legal in Colorado.

Additional Reading

For more in-depth information on search warrants, refer to these scholarly articles:

• The Execution of Search Warrants – Colorado Law Scholarly Commons.
• Search Warrants, Motions to Suppress and Lost Cases: The Effects of the Exclusionary Rule in Seven Jurisdictions – Journal of Criminal Law & Criminology.
• Press One for Warrant: Reinventing the Fourth Amendment’s Search Warrant Requirement through Electronic Procedures – Vanderbilt Law Review.
• The Search Warrant, the Magistrate, and Judicial Review – New York University Law Review.
• The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches – Vanderbilt Law Review.

Also see our article on wiretapping and eavesdropping in Colorado.

Legal references: