By H. Michael Steinberg Colorado Criminal Defense Lawyer
The New “Miranda Advisement” For Searches – Consent To Search Advisement For Fourth Amendment Searches and Seizures
Colorado is one of only a few states to enact a requirement police officers advise a citizen of their right to refuse a search.
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 never been interpreted to require the police to advise a citizen of their right to refuse a search or, for example, to have their automobile searched. Colorado law creates such a requirement.
Here is a summary of the law followed by the actual law itself.
The 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.
- 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.
- 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.
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.
Failure To Advise
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 link to the actual law refuse the request to search.16-3-310 COLORADO CAR SEARCH ORAL ADVISEMENT
H. Michael’s Take
It is about time.. Colorado citizens have a right to know their rights to privacy. The police should not be allowed to take advantage of a citizen’s understandable ignorance of constitutional law and the obvious circumstances surrounding the inherent intimidation present in all police citizen encounters in Colorado.