In Colorado, the police are not allowed to search you or your property unless (a) you consent to the search, (b) they obtain a valid search warrant or (c) the situation falls under one of the exceptions to the search warrant requirement.
If you are charged with a crime based on evidence found from an illegal search, your attorney can file a motion to suppress the evidence. If the judge grants the motion, any unlawfully-obtained evidence will be tossed out. This can lead to the charges against you
- being reduced, or
- even thrown out altogether.1
To help you better understand Colorado laws against illegal searches, our Colorado criminal defense lawyers discuss, below, what searches are prohibited by the constitution and what you can do if you are the victim of an illegal search.
- 1. When can the police legally stop and search me?
- 2. When is a search warrant valid?
- 3. What are exceptions to the warrant requirement?
- 4. Can the police disarm me during a search if I have a Colorado concealed weapon permit (CCW)?
- 5. What can I do if I am the victim of an unlawful search and seizure?
Also see our article on wiretapping and eavesdropping in Colorado.
1. When can the police legally stop and search me?
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.
This protection against unreasonable search and seizures means the police and other law enforcement personnel may not search you or your property unless:
- They have obtained a valid search warrant from a judge, OR
- The search falls within one of the limited exceptions to the warrant requirement recognized by federal and Colorado courts.
2. When is a search warrant valid?
To be valid under the U.S. and state constitutions, a search warrant in Colorado must:
- Be based on probable cause;
- Be supported by a written oath or affirmation;
- 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.
3. What are exceptions to the warrant requirement?
Generally speaking, the police do not need a search warrant when:
- You voluntarily consent to the search;
- 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;
- 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;
- The police are engaging in a “stop and frisk” (also known as a “Terry stop”2) – that is, a pat down of the outer clothing of a criminal suspect to look for weapons while the suspect is being temporarily detained;
- The search takes place at an international border (an “inspection search”);
- 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;
- The police see an obviously incriminating item that is in “plain view” while they are conducting an otherwise lawful search; or
- It is an emergency situation and a search is necessary to prevent physical harm or serious property damage, or to locate a fleeing suspect.
4. What can I do if I am the victim of an unlawful search and seizure?
If you are the victim of an unlawful search or seizure by police, then you and your Colorado criminal defense attorney can ask the court to exclude obtained as a result of the illegal search. This is known as the “exclusionary rule.”
The exclusionary rule applies
- not only to illegally obtained evidence, but also
- all evidence the police find based on the original illegally seized evidence — the so-called “fruit of the poisonous tree.”
The exclusion of evidence is usually done in a separate hearing in advance of a criminal trial, through a Colorado motion to suppress evidence.
Learn more about police misconduct in Colorado.
5. Can the police disarm me during a search if I have a Colorado concealed weapon permit (CCW)?
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.
- Fourth Amendment to the U.S. Constitution and Article II, Section 7, of the Colorado Constitution (“The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures; and no warrant to search any place or seize any person or things shall issue without describing the place to be searched, or the person or thing to be seized, as near as may be, nor without probable cause, supported by oath or affirmation reduced to writing.”)
- Named for the U.S. Supreme Court case Terry v. Ohio, 392 U.S. 1 (1968).
- 18-12-214 (1)(b) C.R.S. See also See also People in Interest of C.C.-S, (October 21, 2021) 2021 COA 127. See also People in Interest of J.G., (Court of Appeals, 2022) COA 64 (“Under ordinary circumstances, a search of a student at school is “justified at its inception” when a school official has reasonable suspicion that a search will turn up evidence that the student has violated or is violating either the law or the rules of the school…We conclude that reasonable suspicion is a sufficient, but not necessary, means of justifying a search at its inception. A search may be justified at its inception without reasonable suspicion where the record shows that the student had a substantially diminished expectation of privacy in his or her person or property.”).