The right to be free from unreasonable searches
Under the Fourth Amendment to the U.S. Constitution and Article II, Section 7, of the Colorado Constitution,1 you have the right to be free from unreasonable “searches and seizures” by law enforcement.
If you are charged with a crime based in whole or in part by evidence obtained as the result of an illegal search, your attorney can file a motion to suppress the evidence. If successful, any evidence seized as the result of the illegal search will be tossed out. This can lead to the charges against you being reduced, or even thrown out altogether.
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. 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.
The Fourth Amendment applies to actions by both federal law enforcement agencies (such as the FBI and U.S. Immigration and Customs Enforcement, or “ICE”) and to searches by 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.
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.
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.
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 to 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.
Even if you have a Colorado permit to carry a concealed weapon, a peace officer may temporarily disarm you during a lawful stop... IF he or she has 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.
Call us for help...
If you believe you have been the victim of an illegal search and seizure in Colorado, we invite you to call us for a free consultation.
Our caring Colorado criminal attorneys have decades of experience dealing with the exclusionary rule and motions to suppress evidence.
When a motion to suppress is successful, the evidence seized as a result of the illegal search will be excluded from your case, along with any additional evidence. Often this will result in your Colorado criminal charges being reduced – or to an outright dismissal of your case.
Communities our criminal attorneys serve include Denver, Colorado Springs, Aurora, Fort Collins, Lakewood, Thornton, Arvada, Westminster, Centennial and Boulder.
You can reach us by filling out the confidential form on this page, or by calling us at our conveniently located Denver home office:
Colorado Legal Defense Group
1400 16th Street ste. 400
16 Market Square
Denver CO 80202
- Colorado Const. Art. II, Section 7 provides: "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.