In Colorado, a search warrant is an order issued by the court to allow police, sheriff’s officers, or other law enforcement to conduct a search of a designated area. In most cases, the police cannot search your home, car, or other private property without a valid search warrant.
The Constitution of the United States protects individuals from unreasonable search and seizure. If the police violate your rights with an illegal search, they may be prohibited from using the ill-gotten evidence against you.
However, there are exceptions to the search warrant requirement.
In this article, our Colorado criminal defense lawyers will address:
- 1. What is a search warrant?
- 2. How do the police get a search warrant?
- 3. Can the police search my property without a search warrant?
- 4. What are no-knock warrants?
- 5. What happens if the police searched my property without a warrant?
- 6. What about pat-down searches?
- 7. Can I leave during the search?
See our related article on arrest warrants in Colorado and bench warrants in Colorado.
1. What is a search warrant?
A search warrant is an order issued by a judge or magistrate that allows police, sheriff’s officers, or other law enforcement to conduct a search of a particular location.
This may include your
- business offices, or
- other locations where you have a reasonable expectation of privacy.
The search warrant allows law enforcement to search for evidence of criminal activity and confiscate the evidence they find.
Under the U.S. Constitution, searches and seizures inside the home without a warrant are presumptively unreasonable.1
2. How do the police get a search warrant?
Law enforcement officers have to get a valid search warrant before they can execute a search of your property without your consent. This means going to a judge for an order to authorize the search.
The police have to convince the judge that they have “probable cause” to believe that there is evidence of criminal activity at the location to be searched.
The officers requesting the warrant are called the affiants, and they spell out the probable cause in an affidavit. The police may present the judge supporting evidence, such as:
- sworn statements,
- witness statements, and/or
- statements from police informants.
Search warrants generally have to specify
- the location they are searching, and
- the specific type of evidence they are looking for.
Law enforcement searches are limited to the areas specified in the warrant. Searching other, unrelated areas may constitute an unlawful search (unless there is an exceptional circumstance, discussed below).
Once police finish searching, they should leave a copy of it along with a list of seized items with a responsible occupant. If no one is there, then the documents should be left in a conspicuous location.
Search warrants should be executed promptly and no later than 14 days after being issued.2
3. Can the police search my property without a search warrant?
The police can only search your property if the search falls within one of the exceptions to unreasonable search and seizure. Some of these exceptions are discussed below.
The simplest way for the police to search your property without a warrant is with consent. If the police ask whether they can search the property and the owner or resident allows them inside, they may not need a warrant.
By letting the police search your property, they may be able to use any evidence of criminal activity against you.
For courts to recognize your consent as valid, it must be given freely and voluntarily. In Colorado, police are required to inform you that you can refuse consent.3
3.2. Search incident to a lawful arrest
When police arrest you based on probable cause that you are involved in criminal activity, they may search the immediate area as part of a search incident to a lawful arrest. However, these searches are limited to the area within your immediate control.
If the police have an arrest warrant for a person in your home, they may be able to come in and arrest the person. Though if you do not consent to a search of the house, they may only be able to search the area immediately around the person who is being arrested.4
3.3. Exigent circumstances
The exceptions of exigent circumstances or hot pursuit only allow for warrantless searches in certain emergency situations. If the police are in pursuit of a fleeing suspect, they may be able to enter public property without a warrant.5
3.4. Hot pursuit
Similarly, if the police had a reasonable belief to believe that entry of property was necessary to prevent physical harm to another person or destruction of evidence, their warrantless entry may meet one of the exceptions to the rule.6
3.5. Plain view
The police may not need a warrant to seize evidence of criminal activity that is in plain view. For example, if the police pull you over for a traffic violation and see drug contraband in your back seat, they may
- arrest you for possession of drugs or drug contraband, and
- search the vehicle for other evidence of drug crimes.7
4. What are no-knock warrants?
A no-knock search warrant allows police to enter a property without identifying themselves first. This is different from “knock and announce” warrants, where police must:
- knock first and announce themselves;
- demand to be let in; and
- wait a reasonable time to be let in before forcibly entering.
For judges to issue a no-knock warrant, the police must show probable cause that the people on the property:
- may throw out or destroy evidence;
- could be armed and dangerous;
- might try to escape.
Judges consider various factors when determining to grant a no-knock warrant, such as:
- the people’s criminal history
- gun sales records
- relevant statements by witnesses or informants
- intelligence files8
5. What happens if the police searched my property without a warrant?
If you are arrested based on evidence found as the result of an illegal search, your attorney may be able to prevent that evidence from being used against you in court. This is generally done through a motion to suppress evidence.
Under the Exclusionary Rule, evidence that was gathered through an unreasonable search may be excluded from use at trial. Even if the evidence shows you were involved in an unlawful or criminal activity, suppression of the evidence means it cannot be shown to the jury at trial.
If the evidence is all the prosecutor has, suppressing the evidence may mean they have no case against you, and your charges may be dropped.9
Fruit of the Poisonous Tree Doctrine
If an unlawful search turns up evidence of illegal activity – and the police use that evidence to obtain a search warrant – evidence of the latter search may also be excluded. The United States Supreme Court reasoned that the first illegal search tainted the evidence obtained in the later search, even if police later used a warrant.10
6. What about pat-down searches?
If police reasonably suspect you are armed and dangerous – or if you consent – they can perform a pat-down search on you for weapons without getting a warrant.
In order to determine whether you may be armed and dangerous, police consider:
- what crime they reasonably suspect you of;
- whether you are known to be carrying weapons;
- your behavior;
- what time of day it is;
- how many other officers are present;
- who else is present;
- any other relevant factors
Pat-down searches should be restricted to weapons detection and not include searching for evidence of a crime (unless you consent to a broader search).11
7. Can I leave during the search?
You should be allowed to leave the property when police are searching it. But police may insist you stay if:
- you are named in the warrant as possibly having evidence on your person, or
- the police “detain you” because they have reasonable suspicion that you committed a crime, or
- the police reasonably believe your leaving would result in the destruction of evidence or that you will alert other suspects to flee12
Call us for help…
If you have any questions about search warrants or unlawful searches by police officers, please contact us at Colorado Legal Defense Group.
Go to our Colorado warrants information page.
Also see our article on Nevada search warrants.
- Payton v. New York, 445 U.S. 573 (1980). See also People v. McKay, (October 25, 2021) 2021 CO 72. CRS 16-3-301 — CRS 16-3-311.
- CRS 16-3-301 — CRS 16-3-311. Colo. R. Crim. P. 41.
- See CRS 16-3-310.
- See People v. Marshall (2012) .
- See People v. Aarness (2006) .
- See People v. McKinstry (1993) .
- See People v. Glick (2011) .
- See People v. Russom (Colorado Court of Appeals, Division II, 2004) .
- See People v. Tomaske (2019) 440 P.3d 444.
- See People v. McFall (1983) . Wong Sun v. United States (1963) 83 S.Ct 407.
- See People v. Gow (Colorado Court of Appeals, Division V, 2016) 442 P.3d 916.
- See People v. Tallent (2008) .