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.
Search warrants should not be confused with other types of Colorado warrants:
|To search a specific location for specific evidence of a crime.
|Judge or Magistrate
|Probable cause to believe evidence is present
|To arrest someone who failed to appear in court or comply with court orders.
|Failure to appear in court or follow court orders
|To arrest a person suspected of committing a crime.
|Judge or Magistrate
|Probable cause to believe someone committed a crime
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 police search my property without a warrant?
- 4. What are no-knock warrants?
- 5. What happens if police search without a warrant?
- 6. What about pat-down searches?
- 7. Can I leave during the search?
- Additional reading
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 search for 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 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
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
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
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
The police may not need a warrant to seize evidence of criminal activity 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 police search 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 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
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.
- 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, which reads as follows:
(a) Authority to Issue Warrant. A search warrant authorized by this Rule may be issued by any judge of a court of record. (b) Grounds for Issuance. A search warrant may be issued under this Rule to search for and seize any property: (1) Which is stolen or embezzled; or (2) Which is designed or intended for use as a means of committing a criminal offense; or (3) Which is or has been used as a means of committing a criminal offense; or (4) The possession of which is illegal; or (5) Which would be material evidence in a subsequent criminal prosecution in this state or in another state; or (6) The seizure of which is expressly required, authorized, or permitted by any statute of this state; or (7) Which is kept, stored, maintained, transported, sold, dispensed, or possessed in violation of a statute of this state, under circumstances involving a serious threat to public safety or order, or to public health. (c) Application for Search Warrant. (1) A search warrant shall issue only on affidavit sworn or affirmed to before the judge, except as provided in (c)(3). Such affidavit shall relate facts sufficient to: (I) Identify or describe, as nearly as may be, the premises, person, place, or thing to be searched; (II) Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected; (III) Establish the grounds for issuance of the warrant, or probable cause to believe that such grounds exist; and (IV) Establish probable cause to believe that the property to be searched for, seized, or inspected is located at, in, or upon the premises, person, place, or thing to be searched. (2) The affidavit required by this section may include sworn testimony reduced to writing and signed under oath by the witness giving the testimony before issuance of the warrant. A copy of the affidavit and a copy of the transcript of testimony taken in support of the request for a search warrant shall be attached to the search warrant filed with the court. (2.5) A no-knock search warrant, which means, for purposes of this section, a search warrant authorized by the court to be executed by law enforcement officers through a forcible entry without first announcing their identity, purpose, and authority, shall be issued only if the affidavit for such warrant: (I) Complies with the provisions of subsections (1) and (2) of this section (c) and section , C.R.S.; (II) Specifically requests the issuance of a no-knock search warrant; (III) Relates sufficient circumstances to support the issuance of a no-knock search warrant; (IV) Has been reviewed and approved for legal sufficiency and signed by a district attorney with the date and his or her attorney registration number on the affidavit, pursuant to section , C.R.S.; and (V) If the grounds for the issuance of a no-knock warrant are established by a confidential informant, the affidavit for such warrant shall contain a statement by the affiant concerning when such grounds became known or were verified by the affiant, but such statement shall not identify the confidential informant. (3) Application and Issuance of a Warrant by Facsimile or Electronic Transmission. A warrant, signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission (fax) or by electronic transfer with electronic signatures to the judge, who may act upon the transmitted documents as if they were originals. A warrant affidavit may be sworn to or affirmed by administration of the oath over the telephone by the judge. The affidavit with electronic signature received by the judge or magistrate and the warrant approved by the judge or magistrate, signed with electronic signature, shall be deemed originals. The judge or magistrate shall facilitate the filing of the original affidavit and original warrant with the clerk of the court and shall take reasonable steps to prevent the tampering with the affidavit and warrant. The issuing judge or magistrate shall also forward a copy of the warrant and affidavit, with electronic signatures, to the affiant. This subsection (c)(3) does not authorize the court to issue warrants without having in its possession either a faxed copy of the signed affidavit and warrant or an electronic copy of the affidavit and warrant with electronic signatures. (d) Issuance, Contents, Execution, and Return of Warrant. (1) If the judge is satisfied that grounds for the application exist, or that there is probable cause to believe that such grounds exist, he shall issue a search warrant, which shall: (I) Identify or describe, as nearly as may be, the premises, person, place, or thing to be searched; (II) Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected; (III) State the grounds or probable cause for its issuance; and (IV) State the names of the persons whose affidavits of testimony have been taken in support thereof. (2) The search warrant may also contain such other and further orders as the judge may deem necessary to comply with the provisions of a statute, charter, or ordinance, or to provide for the custody or delivery to the proper officer of any property seized under the warrant, or otherwise to accomplish the purposes of the warrant. (3) Unless the court otherwise directs, every search warrant authorizes the officer executing the same: (I) To execute and serve the warrant at any time; and (II) To use and employ such force as may reasonably be necessary in the performance of the duties commanded by the warrant. (4) Joinder. The search of one or more persons, premises, places, or things, may be commanded in a single warrant or in separate warrants, if compliance is made with Rule of these Rules. (5) Execution and Return. (I) Except as otherwise provided in this Rule, a search warrant shall be directed to any officer authorized by law to execute it in the county wherein the property is located. (II) Any judge issuing a search warrant, for the search of a person or for the search of any motor vehicle, aircraft, or other object which is mobile or capable of being transported may make an order authorizing a peace officer to be named in such warrant to execute the same, and the person named in such order may execute such warrant anywhere in the state. All sheriffs, coroners, police officers, and officers of the Colorado State Patrol, when required, in their respective counties, shall aid and assist in the execution of such warrant. The order authorized by this subsection (5) may also authorize execution of the warrant by any officer authorized by law to execute it in the county wherein the property is located. (III) When any officer, having a warrant for the search of a person or for the search of any motor vehicle, aircraft, or other object which is mobile or capable of being transported, shall be in pursuit thereof and such person, motor vehicle, aircraft, or other object shall cross or enter into another county, such officer is authorized to execute the warrant in such other county. (IV) It shall be the duty of all peace officers into whose hands any search warrant shall come, to execute the same, in their respective counties or municipalities, and make due return thereof. (V) The officers executing a search warrant shall first announce their identity, purpose, and authority, and if they are not admitted, may make a forcible entry into the place to be searched; however, the officers may make forcible entry without such prior announcement if the warrant expressly authorizes them to do so or if the particular facts and circumstances known to them at the time the warrant is to be executed adequately justify dispensing with this requirement. (VI) A search warrant shall be executed within 14 days after its date. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information, the inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied. The judge upon request shall deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant. (VII) A warrant under Rule 41(b) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(d)(5)(VI) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review. (e) Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the county where the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that: (1) The property was illegally seized without warrant; or (2) The warrant is insufficient on its face; or (3) The property seized is not that described in the warrant; or (4) There was not probable cause for believing the existence of the grounds on which the warrant was issued; or (5) The warrant was illegally executed.
The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. The motion to suppress evidence may also be made in the court where the trial is to be had. The motion shall be made and heard before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court, in its discretion, may entertain the motion at the trial.
(f) Return of Papers to Clerk. The judge who has issued a warrant shall attach to the warrant a copy of the return, inventory, and all other documents in connection therewith, including any affidavit in application for the warrant, and shall file them with the clerk of the district court for the county of origin. If a case has been filed in the district court after issuance of the warrant, the clerk of the district court shall notify the clerk of the county court which issued it that the warrant has been filed in the district court. When the warrant has been issued by the county judge and there is no subsequent filing in the district court, after the issuance of the warrant, the documents shall remain in the county court. Any documents transmitted by fax or electronic transmission to the judge to obtain the warrant and the documents transmitted by the judge to the applicant shall be filed with the clerk of the court. (g) Suppression of Confession or Admission. A defendant aggrieved by an alleged involuntary confession or admission made by him, may make a motion under this Rule to suppress said confession or admission. The motion shall be made and heard before trial unless opportunity therefor did not exist or defendant was not aware of the grounds for the motion, but the court, in its discretion, may entertain the motion at the trial. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. (h) Scope and Definition. This Rule does not modify any statute, inconsistent with it, regulating search, seizure, and the issuance and execution of search warrants in circumstances for which special provision is made.
- 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) .