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February 16, 2015

Colorado Criminal Law - Motion To Suppress Evidence - New 2015 Case Changes Burden of Proof

Colorado Criminal Law - Motion To Suppress Evidence - New 2015 Case Changes Burden of Proof.jpgBy H. Michael Steinberg - Colorado Criminal Defense Lawyer Online Blog

Colorado Criminal Law - Motion To Suppress Evidence - New 2015 Case Changes Burden of Proof - For over 30 years the burden of going forward in a Colorado criminal Motion to Suppress Evidence hearing was on the prosecution. With the announcement of a new case People vs Cunningham - that burden - in many Colorado criminal courtrooms - now sits with the Defendant and his or her lawyer.

The Case of People v. Cunningham 314 P.3d 1289 (Colo. 2013), 13SA179,

Decided in later 2013 - People v. Cunningham - changed everything in Colorado's Motion to Suppress. Here is an excerpt from the case:

As the moving party seeking suppression of the evidence, the defendant has the burden of alleging and showing that a search or seizure violated the defendant's right to privacy under the Fourth Amendment. We hold that the trial court erred in assigning the initial burden of going forward to the prosecution and reverse the suppression order.

A Shift In The Burden Of Proof

After Cunningham, Colorado judges have begun to require defense lawyers to "carry" the initial burden on their motions to suppress evidence.

Motions to suppress maybe based on the execution of a search warrant, an attack on the affidavit in support of a search warrant (a veracity hearing) LINK or a warrantless search and seizure of evidence.

In the future - Colorado criminal defense lawyers will find themselves going first in support of their motions by calling the police witnesses and attacking their investigation as in violation of the defendant's constitutional rights.

Meeting the initial burden of going forward - at least where the search and seizure involved a warrantless search - should be minimally difficult and after an initial showing of a the failure to seek a warrant - the burden should then be argued to shift to the prosecutor to establish that warrantless conduct on the part of the officers falls within one of the narrowly defined exceptions to the warrant requirement.

Most Colorado judge's should permit the shift to consist of an offer of proof - or a stipulation with the prosecutor that the search and or seizure was - in fact - without a warrant. There is precedent in Colorado for the proposition that a trial court can properly permit the defendant to proceed with an offer of proof to meet the initial burden by establishing the lack of a lawfully obtained arrest or search warrant.

A Motion To Suppress Under The Fourth Amendment and Colorado Crim. P. 41 (e)

A motion to suppress under Colorado Rule of Criminal Procedure 41(e) - states the claim that the defendant's Fourth
Amendment rights have been violated. The motion must state with reasonable specificity the factual and legal basis for the violation of the Fourth Amendment's right to privacy). T

Cunningham stands for the proposition that whether a Fourth Amendment violation is made out - warrantless or with a warrant, under Crim. P. 41 - the party filing the motion bears the burden of "going forward" by showing that:

(1) the property was illegally seized without a warrant; (2) the warrant is insufficient on its face; (3) the property seized is not that described in the warrant; (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. Crim. P. 41(e)(1)-(5);

After the Cunningham case - if the defendant satisfies the burden of going forward - the prosecutor must then show that the defendant's Fourth Amendment rights were not violated. The prosecution does not have an initial burden of going forward at a suppression hearing.

Noteworthy: Under Colorado Law The Trial Court Still Controls The "Order of Presentation"

While the initial burden of proof may be on the defendant in a motion to suppress, the Judge can still control the "order of presentation" of the evidence. The judge may change the order of proof in deciding the most expeditious method to proceed. The evidence introduced in Colorado Motions to Suppress varies greatly. It is based on documents, stipulations of the parties, agreed upon or contested issues and other matters unique to the individual case. On an individualized basis the evidence itself may change the order of the admission of the evidence and thereby impact and perhaps lighten the burden of proof placed on the defense by the Cunningham case.

August 18, 2013

United States Supreme Court Asked To Decide How Far Police Can Go In Searching Cell Phone At Time Of Arrest

Colorado Cell Phone Searches.jpg
Cell phones - 91% of us have them. Cell phones are a modern marvel defying most of us to com close to fully understand how they function. They are truly highly complex "mini computers" containing vast amounts of personal information that should remain private and well away from the eyes of law enforcement.

Recently the United States Supreme Court has been asked - in the case of Riley vs California - to set the standard for searches "incident to arrest" involving the seizure - but much more importantly - the search of the contents of cell phones.

A petition to the Supreme Court asks the court to clarify whether - and under what conditions - law enforcement may access the massive amounts of personal information on all of our cell phones without a search warrant.

In Riley - the police in the State of California made an legal arrest and "incident to that arrest" seized a cell phone. Officers searched the contents of the cell phone twice. Officers searched the phone at the scene of the arrest, and then again several hours later, at police headquarters.

Why Is This An Issue?

I submit that the better reasoned authority holds that a search of a cell phone violates the Fourth Amendment unless it is performed with a warrant or under an exception to the warrant requirement such as an exigency otherwise justifying the search.

The accepted reasoning for permitting a warrantless search - to this point - has been what has come to be known as the Fourth Amendment's search-incident-to-arrest doctrine. This doctrine permits the police to search a cell phone whenever the phone is "immediately associated with [the arrestee's] person" at the time of the arrest.

The Chimel Test

Until now the legal framework for analysis of the "search-incident-to-arrest exception" to the Fourth Amendment warrant requirement was based on the vase of Chimel v. California, 395 U.S. 752 (1969). In Chimel the United States Supreme Court held that in order to "seize weapons and to prevent the destruction of evidence," the Fourth Amendment permits police officers to search "the arrestee's person" and "the area into which an arrestee might reach" while being arrested.

Since Chimel - many other cases have broadened this holding including the case of United States v. Robinson, 414 U.S. 218 (1973). In Robinson a search of a crumpled cigarette package found on the defendant's person during his arrest - which could not have contained a weapon of course - was lawful and such searches do not depend on "the probability in a particular arrest situation that weapons or evidence would in fact be found" and that "[i]t is the fact of the lawful arrest which establishes the authority to search."

Enter Cell Phones

The Supreme Court's search-incident-to- arrest jurisprudence" was based on a thinking that is now decades old and well before the digital era. Today - the genius of cell phones provide access to a vast amounts of highly personal data, and these devices are far from the physical containers addressed on the post Chimel cases. Today individuals carry exponentially larger quantities of personal information on their person than they ever could before the creation of cell phones.

At the time of the traditional search incident to arrest -eith the push of a button - private and confidential information such as medical records, banking activity, and work-related emails become assessable.

Millions of Arrests And Searches Incident To

In 2010 alone, there were nearly 11.5 million total adult arrests. Most of these arrests were based on the most minor of legal infractions such as a violation of a traffic code offense. Nearly all of these arrests - the arresstee carried a cell phone. An answer to this question - can the police search a cell phone at the time of a routine critical.

In Colorado - the answer is ambiguous at best. Our Colorado courts have split the reasoning in a way that satisfies no one. Here is a LINK to a recently written article I drafted on this subject.

The Search of Cell Phones In Colorado At The Time Of Arrest

H. Michael's Take

The Fourth Amendment Prohibits Searching The Digital Contents Of A Cell Phone Incident To Arrest.

The Fourth Amendment establishes that, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."

While our forefathers could never have dreamed of the technical advances we have seen in the last two centuries - we are charged with trying to understand how they would have viewed such advances. When a cell phone is securely in police control the Chimel exception should not apply.

The reasoning makes no sense. The privacy issues that arise from the search of a cell phone make makes such a search - absent a warrant unreasonable. The search-incident-to-arrest exception requires a search to be "'reasonably limited' by the 'need to seize weapons' and 'to prevent the destruction of evidence.'"

In the recent decision of Arizona v. Gant the United States Supreme Court said this:

"If there is no possibility" that the arrestee could gain access to a weapon or destroy evidence, "both justifications for the search-incident-to-arrest exception are absent and the rule does not apply." Arizona v. Gant, (2009).

At the moment police officers separate an arrestee from his phone, there is no longer any risk that he might destroy digital evidence on the phone. The officer - at that moment - has three options to preserve the contents of the phone and apply for a search warrant:

1. He can turn off the phone.
2. He can put it in airplane mode.
3. Or he can place it in an inexpensive bag that prevents any signals from entering or escaping.

The measure of the constitutionality of a governmental search has always been 'reasonableness.'"

The 2001 United States Supreme Court case of United States v Knights ends the issue - at least for me - it said that the reasonableness of a search is determined 'by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.'"

June 19, 2013

United States Supreme Court Allows Introduction Of Pre-Arrest - Pre- Custodial Silence - Miranda Does Not Apply

Colorado Miranda Rights.png
On June 17, 2013 the United States Supreme Court - in Salinas v. Texas - took a step back from the protections accorded by the Fifth Amendment's Right To Remain Silent.

The Facts of Salinas:

Salinas - before being placed into custody - answered questions posed by a police officer in a homicide investigation. At the time he answered the questions he was not under arrest. Among the questions was a comment by the officer about the potential ballistics match as regards casings found at the scene.

answered the officer's questions to that point but "balked" silently at the ballistics comment. While he did answer almost all of the officers' questions, he refused to answer or even respond to the police officers question - regarding whether the shotgun casings found at the scene would match his gun. Instead - his reaction - one of nervousness - was used to persuade the jury he was guilty.

He was convicted and is serving a 22 year sentence.

The Argument On Appeal

Salinas appealed and argued that his silent reaction was not speech but rather protected silence under the 5th Amendment. Which guarantees that '[n]o person . . . shall be compelled in any criminal case to be a witness against himself.'"

The Supreme Court Says NO Protection For "Pre-Custodial " Silence

The Court held that the use of Mr. Salinas's silence at the scene as an inference of his guilt at trial did not violate his 5th Amendment rights.

The new rule overturns a case that was almost 50 years old - Griffin v. California. That case was overturned. The old rule was that neither the prosecution nor the trial court may comment upon the silence of an accused a as an inference of guilt.

Today - after Salinas - remaining silent when the police ask damaging questions - is not the same as claiming a right to remain silent. Prosecutors may use a suspects silence against the suspect at the trial. The rule now requires an affirmative claim to the Fifth Amendment's right to remain silent. Simply remaining silent - during an otherwise voluntary exchange with the police is now - not enough.

"A witness's constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,"

In that one statement the Supreme Court rejected Salinas' argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Colorado Criminal Defense Lawyer - H. Michael Steinberg's Take On The Case:

The dissent in the case makes the most sense to me. Justices Breyer, Bader Ginsburg, Elena Kagan, and Sonia Sotomayor joined together to argue that the rule should be that courts should examine all of the specific circumstances of an individual's encounter with police to decide whether, in fact, that person's silence was an attempt to claim the Fifth Amendment right.

Miranda Rights Not Implicated

The famous Miranda case involved a man held against his will at the police station. This case involved a man who had voluntarily gone to a police station where he was questioned by the police. The distinction is important. In Salinas - the Court held that since Salinas while in the police station was not under arrest or otherwise in custody, Miranda was not implicated.

Not a good day for the preservation of our constitutional rights....

April 26, 2013

Colorado Miranda Rights Law - AfterThe Boston Bombing - What Is The Law In Colorado On Miranda?

Colorado Mirand Rights Law.jpg

By Colorado Criminal Defense Lawyer - Attorney - Colorado Miranda Rights Law - H. Michael Steinberg

Colorado Miranda Rights Law is sometimes not only internally complex but is ever evolving for law enforcement since the original Miranda decision so many years ago.

Understanding the application of the Miranda decision - the imposition of the advisement and issues surrounding the waiver of your Miranda rights requires a close look at the law and what constitutes a valid waiver of those rights.

In 2009 - the Colorado Supreme Court issues its ruling in People v. Clayton. The rule was stated in that decision - clearly - if a waiver of Miranda is knowing, intelligent, and voluntary, then it is then valid.

The Facts Of Clayton

The relevant facts are that Clayton was advised on the way to the station of his Miranda rights after he had been arrested. He waived those rights - blurted out a statement not in response to a questions and was asked to wait until they all arrived at the police station before making his statement.

At the station, Clayton met Detective Losasso, who again advised him again of his rights, reading them from the standard Miranda warnings form used by most police officers.

After Clayton reiterated that he understood his rights, Losasso presented a written copy of the Miranda rights for Clayton to sign as a waiver. Clayton moved to sign the waiver but then hesitated, asking, "what do you mean talk to us?" and further stated, "I mean, I have no problem, it's just, you said this could be used against me in court." The Detective responded that this was his opportunity to "tell his side of the story."

Clayton then asked to call his mother to ask her if he should sign yes or no. The Detective said there was no telephone and that the decision of whether to waive his rights and give a statement was "up to you but, you know, if you don't want to sign it, that's your right."

Clayton then chose to sign the waiver and told his side of the story - essentially incriminating himself in the felony charge. While he claimed self defense - his version was not believed by the jury and he was convicted.

Colorado Miranda Rights Law - What Is An Adequate Advisement of Your Miranda Rights?


When Is A Waiver Of Your Miranda Rights Involuntary and the Product of Police or Other Government Coercion?

Colorado Miranda Rights Law - The Restatement of the Law

Analysis of the validity of a Miranda waiver must begin with "a two-part step analysis."

First, the judge must determine whether the defendant was adequately warned of his privilege against self- incrimination and his right to counsel;


Second, the judge must determine whether the defendant knowingly, validly, and voluntarily waived these rights.

Important Point - The police who are doing the questioning have no obligation to inform a suspect of the possible subjects of an interrogation or the facts and circumstances which may be pertinent to his or her decision to talk to police.

The Waiver - A waiver of your Miranda rights is involuntary only if the police induce the waiver through actual coercive conduct

A waiver of Miranda rights resulting in a confession or inculpatory statement is considered to be involuntary only if coercive governmental conduct, whether physical or psychological, played a significant role in inducing the defendant to make the confession or statement.

What Does Involuntary Mean?

A suspects decision is not involuntary because it is unwise, or may prove unwise in hindsight.

Miranda was never intended to help a suspect make a good decision - it only protects defendants against government coercion leading them to surrender rights that are protected by the Fifth Amendment; it goes no further than that."

What About The Phone Call?

While Colorado law CRS Section 16-3-402 creates a statutory right to call one's family at the earliest possible time after an arrest, that rule is NOT constitutional. A violation of that rule does not create the right to have evidence suppressed as would certain constitutional violations - such as a Miranda violation.

A waiver need only be knowing, intelligent, and voluntary, - if it is - it is valid. Even if Clayton was denied his right to a phone call - that is not the kind of police conduct that would render his waiver involuntary. The "social pressure to cooperate with police" is not the kind of coercion that violates the Miranda rule.

Finally - the extreme nature of the suppression of evidence is not within the judge's power to punish the one phone call rule.

Colorado Miranda Rights Law

September 2, 2012

Colorado DUI - DUID "Sobriety" Checkpoints On The Increase

The statewide "campaigns" known as sobriety DUI checkpoints to catch alleged drunk drivers is on again this Labor Day 2012. The idea is to "crack down on drinking and driving" but the question is always asked if these stops - not based on bad driving or any other illegal activity - are constitutional.. are they legal?

Unfortunately -yes they are. I have written extensively on Colorado DUI Sobriety Checkpoints and these roadblocks - if conducted properly - will not be struck down.... which begs the question.. If you have been arrested and charged - was YOUR Colorado Sobriety Checkpoint conducted pursuant to the guidelines set out by Colorado law? Always ask a Colorado criminal defense lawyer who practices in this area.

Since Memorial day this year the police have made 2,000 DUI arrests in Colorado utilizing the "sobriety checkpoint." That is an average of 72 DUI arrests per day in the state.

While the police says their goal is not to make arrests, but rather to send a larger message to the public, that drinking and driving "don't mix," the disruption caused by these checkpoints is clear.

Those Who Challenges sobriety checkpoints have argued:

  1. Sobriety checkpoints result in illegal searches and seizures, violating both the state and federal constitution
  2. Law enforcement frequently target minorities, setting up checkpoints in communities with large concentrations of ethnic and racial populations
  3. These tactics are much less effective in arresting drunk drivers than conducting more generalized roving patrols

The State of Colorado Sobriety Checkpoint Law

While Colorado law does not expressly grant police officers the power to conduct sobriety checkpoints, the law does grant them the authority to enforce criminal and traffic laws.

Some courts have in effect held that the intrusion that these checkpoints have on a person's Fourth Amendment protections against unreasonable searches and seizures is justified by the seriousness of drunk driving and the possible deterrent effect of sobriety checkpoints.

To assess the reasonableness of the search and seizure courts examine and balance the governmental interest justifying the search against the invasion the search entails.

The key to "reasonableness of this violation of the Fourth Amendment determining whether a particular roadside sobriety checkpoint is constitutionally valid. Here they are.

To be reasonable it must be determined whether:

  • Supervisory law enforcement officers make and establish the decision to institute a sobriety checkpoint, the site selection, and the operational procedures to be followed at the checkpoint
  • Field officers have limited discretion in stopping motorists, and rely on a neutral formula for stopping motorists
  • Law enforcement officers take proper and adequate safety precautions and use official vehicles and personnel during the checkpoint
  • Policy making officials make reasonable checkpoint location decisions, based on among other things, a high number of alcohol related accidents and arrests
  • Officers use reasonable judgment in the time and duration of the checkpoint
  • Officers minimize the length and intrusiveness of the detention
  • Officials provided advance publicity and notification of the sobriety checkpoint

February 2, 2012

GPS Tracking Shut Down By Supremes

In a unanimous but confusing decision issued by the United States Supreme Court last week - the justices held that a 28 day use of a GPS tracking device paced on a suspects vehicle without the benefit of a search warrant - is unconsitutional.

The confusing part? Scalia did not hold that a warrant was always necessary. Walter Dellinger, who represented the Defendant Antoine Jones at the Supreme Court, said the decision means that any use of GPS technology by law enforcement without a warrant "would be a risky undertaking."

Justice Antonin Scalia wrote majority opinion stating that it was the attachment of the device that violated the Fourth Amendment's protection against unreasonable searches and seizures.

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,' " Scalia wrote.

This issue now is the future -- the Court limited it's holding to the fact of the case and refused to write a clear rule that law enforcement could use for guidance under different circumstances.

The justices - raising clear questions of other technologies equally intrusive wrote in separate opinions, of the sweeping changes technology has brought to society that do not involve government intrusions.

"In the course of carrying out mundane tasks," Sotomayor wrote, Americans disclose the phone numbers they dial, the URLs they visit, "the books, groceries and medications they purchase."

Alito wrote of toll booths that record a motorist's travels, cars that come ready to broadcast their locations and 322 million wireless devices in use nationally.

H. Michael's Take

What is most certainly going to happen at this point is that the States -- picking up on the Court's reasoning will most likely find that the long term use of survelliance devices - of any kind - are suspect - and that the actions of law enforcement in tracking citizens using these kinds of technologies will be presumed unconstitutional.

January 11, 2012

Florida Supreme Court Closes the Door on Dog Sniff Search

In an important case decided recently by the Florida Supreme Court -- the Court held that a dog sniff at the front door of a private residence was an illegal search... thus shutting the door to an expansion of the use of the "dog sniff" tool to invade the privacy of the home of the average citizen.

In Jardines v Florida, the police conducted a warrantless "sniff test" by a drug detection dog at Jardines‟ home and discovered live marijuana plants inside. The trial court granted Jardines‟ motion to suppress the evidence, and the State appealed.

An important point of law from the decision - says it all -

At the very core‟ of the Fourth Amendment „stands the right of a man to retreat
into his own home and there be free from unreasonable governmental intrusion.‟ "

Here is the heart of the decision:

On the scene, the procedure involved multiple police vehicles, multiple law enforcement personnel, including narcotics detectives and other officers, and an experienced dog handler and trained drug detection dog engaged in a vigorous search effort on the front porch of the residence. Tactical law enforcement personnel from various government agencies, both state and federal, were on the scene for surveillance and backup purposes. The entire on-the-scene government activity--i.e., the preparation for the "sniff test," the test itself, and the aftermath, which culminated in the full-blown search of Jardines‟ home--lasted for hours.

The "sniff test" apparently took place in plain view of the general public. There was no anonymity for the resident

The court reasoned that this sniff went too far -- that the dog sniff at the scene of a traffic stop is one thing -- but to conduct a search under these conditions - was a violation of the fourth amendment.

Again - and most importantly - we can see the court's reasoning:

Further, if government agents can conduct a dog "sniff test" at a private residence without any prior evidentiary showing of wrongdoing, there is nothing to prevent the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen. Such an open-ended policy invites overbearing and harassing conduct. Accordingly, we conclude that a "sniff test," such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a "search" within the meaning of the Fourth Amendment. As such, it must be preceded by an evidentiary showing of wrongdoing.

December 14, 2011

2010 Changes to Colorado Criminal Law - Police Must Now Advise You of Your Right To Refuse a Search NOT Based on Probable Cause

A little known law that was quietly signed by the Governor of Colorado in 2010 requires some attention. Here is how it applies. In the past, if a police officer who has NO evidence that you have committed a crime, asks for your permission to conduct a search of your person or your car, he or she did NOT have to advise you that you have the right to refuse said search.

The new law requires the police officer to advise you that you have the right to refuse the search and he - she must obtain your oral or written consent to the search. Furthermore, this new law is critically important as it counters what I would term "the natural intimidation factor" when a police officer requests - based on no evidence - to search you or your car.

Here is a summary of the new law:

HB 1201: Concerning Duties Related to Peace Officer Contacts

Status: Passed the House (37-28) and Senate (35-0) and signed into law on April 29, 2010. It was made effective April 29, 2010

Description: This new law requires that prior to conducting a consensual search of a person, personal effects, or vehicle a peace officer must get either oral or written consent for the search after advising the person that they may refuse.

This new law does not apply to a valid search incident to a lawful arrest or to a search for which there is a legal basis which includes, but is not limited to, searches in correctional facilities, jails, community corrections facilities, mental health facilities or searches of a person on probation or parole by a probation or parole officer when such searches are a condition of supervision.

August 19, 2011

New Law In Colorado Compels Police to Advise You of Right to Refuse Search of You or Your Vehicle

Just a quick FYI and a reminder. A new law passed in Colorado requires the police - in the absence of a legal right to search your vehicle - prior to conducting a consensual search of your effects or your vehicle of a person - to inform the person that they are being asked to voluntarily consent to a search and that they have the right to refuse.

The targeted "searchee" must provide oral or written consent.

Again this requirement does not apply to searches conducted under other valid exceptions to the wsearch arrant requirement.

June 30, 2011

The Changing Face (2010) of Probable Cause for Search Warrants in Colorado

The Colorado Supreme Court recently (in April 2010) revisited what the law requires to create probable cause - that standard of proof necessary to support a search warrant.

By Denver, Colorado Criminal Defense Lawyer - H. Michael Steinberg

Probable Cause

The United States and Colorado Constitutions prohibit issuance of a search warrant without a showing of probable cause supported by oath or affidavit. See U.S. Const. amend IV; Colo. Const. art. II, Section 7.

"'Probable cause exists when an affidavit for a search warrant alleges facts sufficient to cause a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched.'"

Probable cause is determined by the "totality of the circumstances." Under the Colorado Constitution, the facts supporting probable cause must be reduced to a writing, and so probable cause must be established within the four corners of the warrant or its supporting affidavit.

However, the analysis is not governed by hypertechnical legal rules; rather, a judge must make a "practical, commonsense decision" as to whether there is a fair probability that a search will reveal contraband or evidence of a crime.

Probable cause' itself need not satisfy any rigid, hypertechnical requirements but is a 'practical, nontechnical conception,' involving common-sense conclusions about human behavior."

In People v Scott, the Colorado Supreme Court expanded the "source" of probable cause to allow a judge to "add together" the evidence taken from two separate search warrants to support probable cause for a single search warrant. Scott had challenged the second search warrant as having issued without probable cause. The trial court concluded the affidavit supporting the second warrant was insufficient to establish probable cause and granted his motion to suppress all items collected thereunder except for the modified treadmill found in the garage.

After review, the court concluded that two affidavits could be read together and that the constellation of facts set forth by the two affidavits was a sufficient to provide the judge with a substantial basis from which to conclude that probable cause existed.

H. Michael's Take:

I disagree with the court's conclusions. In the past, where two affidavits have been read together to support a single search warrant, the affidavits incorporated each other by reference to each other.

In this case - the court broadened this rule of law on what it takes to establish probable cause in Colorado.

"Here, though, the affidavit supporting the second warrant does not explicitly incorporate by reference the affidavit supporting the first warrant. Rather, the second affidavit only states that the officers made their observations while executing the first search warrant at Scott's residence. Nonetheless, the observations sworn in the first affidavit clearly informed the ongoing investigation as well as the second warrant request. To force the two affidavits to be considered separately simply because Officer Feeney failed to explicitly incorporate the first affidavit into the second would be to impose hypertechnical requirements on an affidavit's form and constrain the commonsense approach that guides a magistrate's probable-cause determinations."

To read the entire decision see:

June 15, 2011

Colorado District Attorney Has Exposure for Overstepping Her Power and Authority

A Weld County Colorado prosecutor will face a civil lawsuit for money damages as a result of abusing her power in the prosecution of a college student for publishing a column know as the "Howling Pig".

Deputy District Attorney Susan Knox violated Thomas Mink's constitutional rights in 2003 when the DA approved a search warrant Minks Greeley, Colorado home where Mink lived with his mother.

"Ms. Knox violated Mr. Finks' Fourth Amendment right to be free from unreasonable searches and seizures," said well known and respected Judge Lewis Babcock in his 11 page opinion.

Mink, an English major at the University of Northern Colorado, published the newsletter and website in one of the finest traditions of the First Amendment. Mink's crime? poking fun at a college finance professor.

In his dismissal opinion, Judge Babcock said that Prosecutor's do NOT have unbridled power to intrude on dismissing Knox's claim that her status as a government official meant she was not liable,

Babcock ruled that 'because Mink's activities were satire and protected by the First Amendment, Knox could not have reasonably believed the articles in Mink's publication stated actual facts about Peake (the professor and target of the satire), and she could not have believed that a crime was committed.'

The court limited the DA's power to a good faith exercise of that authority.

H. Michael's Take

This ruling will send shock waves throughout Colorado and the nation. I was a DA for 13 years - and time and again, I witnessed prosecutors lose touch with the kind of power they wield.

Every suspect was a "dirtbag," ever defendant was a liar, every person charged with a crime needed to be punished for their actions no matter what the mitigation or the reasons for their actions.

It became clear to me that the "cloud" of authority DA's carry around them often distorts their thinking and their perception.

This ruling should send a message to them that complete blanket immunity is no longer the case for their actions - they will be held accountable for their decisions.

It is a good thing for the powerful to know there is a limit to their power. HMS

December 27, 2010

Police - Citizen Encounters: New Law in Colorado for 2010 Creates Right to be Advised of Search and Seizure Constitutional Protections Under the Fourth Amendment

Colorado Change in Criminal Law 2010: Citizen Police Contact - New Protections!

Colorado is one of the first states in the nation to enact a requirement be placed on police officers in citizen - police contacts. Unlike the Miranda decision that was decided under the Fifth Amendment to the US and Colorado constitution, and which requires the police advise a person of their so called Miranda Rights prior to questioning following an arrest,

.. The Fourth Amendment has no such requirement to advise the citizen of their right to refuse to be searched or to have their automobile searched. This new law - enacted in 2010 - creates such a requirement. Here is a summary of the law followed by the actual law itself.

Restated, this new law requires that prior to conducting a consensual search of a person, personal effects, or vehicle a peace officer must get either oral or written consent for the search after advising the person that they may refuse. This new law does not apply to a valid search incident to a lawful arrest or to a search for which there is a legal basis which includes, but is not limited to, searches in correctional facilities, jails, community corrections facilities, mental health facilities or searches of a person on probation or parole by a probation or parole officer when such searches are a condition of supervision

The Bill was called H.B. 10-1201 Consensual searches - person, automobile, or effects - advisement - consent before search - remedy for violation - applicability.

Before conducting a consensual search of a person, the person's effects, or a car, a peace officer is required to articulate the factors related to the search to the person and obtain the person's consent to the search.

If a defendant is searched in violation of the act and moves to suppress the evidence obtained in the search, the court shall consider the failure to comply with the statute as a factor in determining the voluntariness of the consent.

The provisions of the act apply only to searches for which there is otherwise no legal basis

Here is the actual law itself:

16-3-310. Oral advisement and written consent prior to search of a vehicle or a person during a police contact.

(1) (a) Prior to conducting a consensual search of a person who is not under arrest, the person's effects, or a vehicle, a peace officer shall comply with paragraph (b) of this subsection (1).

(b) A peace officer may conduct a consensual search only after articulating the following factors to, and subsequently receiving consent from, the person subject to the search or the person with the apparent or actual authority to provide permission to search the vehicle or effects. The factors are:

(I) The person is being asked to voluntarily consent to a search; and

(II) The person has the right to refuse the request to search.

(c) After providing the advisement required in paragraph (b) of this subsection (1), a peace officer may conduct the requested search only if the person subject to the search voluntarily provides verbal or written consent. Other evidence of knowing and voluntary consent may be acceptable, if the person is unable to provide written or verbal consent.

(2) A peace officer providing the advisement required pursuant to subsection (1) of this section need not provide a specific recitation of the advisement; substantial compliance with the substance of the factors is sufficient to comply with the requirement.

(3) If a defendant moves to suppress any evidence obtained in the course of the search, the court shall consider the failure to comply with the requirements of this section as a factor in determining the voluntariness of the consent.

(4) This section shall not apply to a search conducted pursuant to section 16-3-103, C.R.S., a valid search incident to or subsequent to a lawful arrest, or to a search for which there is a legal basis other than voluntary consent. This shall include, but not be limited to, a search in a correctional facility or on correctional facility property, a detention facility, county detention facility, custody facility, juvenile correctional facility or any mental health institute or mental health facility operated by or under a contract with the department of human services, a community corrections facility, or a jail or a search of a person subject to probation or parole by a community supervision or parole officer when the person has consented to search as a term and condition of any probation or parole.

H. Michael's Take

It is about time.. The people have a right to know their privacy rights - and the police should not be allowed to take advantage of their ignorance and to take advantage of the obvious circumstance of intimidation inherent in all police citizen encounters in Colorado.

October 23, 2010

Police Show Complete Ignorance of 4th Amendment Search and Seizure Protections - Result? Death... and Indictments

A grand jury in Mesa County has indicted two Colorado state troopers in the fatal shooting of a man in his home earlier this summer.

Troopers Ivan Lawyer and Kirk Firko were indicted Thursday on counts of criminal trespass and criminal mischief. Lawyer was additionally indicted on counts of criminally negligent homicide, second-degree assault, illegal discharge of a firearm and prohibited use of a weapon.

The shooting happened after troopers were called to an accident at 7:40 p.m. July 20, near the intersection of Glade Park Road and South Broadway in Grand Junction.

According to the indictment, callers had reported that a pickup pulling a trailer and a Jet Ski had crashed into a yard and three intoxicated individuals were trying to leave.

When troopers arrived, the truck, trailer and Jet Ski were parked a short distance away.

"Both officers believed time was of the essence to secure a chemical test for purposes of securing evidence for driving while under the influence," according to the indictment.

Lawyer and Firko knocked on the door of the suspects house but no one answered. Lawyer looked through the window, with a flashlight, and was able to see a man in the home who matched the description of the driver of the truck.

According to the indictment, the man in the home, Jason Kemp, told the troopers that they could not enter without a warrant.

As Firko attempted to detain two men who had escaped through a back door, Lawyer tried to break open the front door. The indictment states that Lawyer was afraid Kemp had already had time to grab a weapon.

With his gun drawn, Lawyer kicked open the door. As Lawyer looked in the door he saw "the darkness of Kemp" standing along the door, and saw Kemp "lift and extend his arm upward as if he was pointing a gun," but could not actually see Kemp's hands.

Lawyer said he saw a flash and believed he himself had been shot, but then realized he had shot Kemp.The single gunshot wound to the chest killed Kemp, despite Lawyer's efforts to perform CPR. Kemp was not armed.

H. Michael's Take:

This case - more than any other I have read about recently - points up the poor training of some of the police officers in Colorado. The constitutional violations in this case are outrageous and I am certain a civil law suit will follow soon. The needless death in an investigation of what amounts to drunk driving and some minor property damage symbolizes the need for officers to understand when breaking in doors is justified and when an arrest and search warrant is required.

Read more about the rights of the police to enter your home on my websites...