Motions To Suppress In Colorado: A Guide

Motions To Suppress In Colorado: A Guide

By H. Michael Steinberg, A Colorado Criminal Defense Lawyer – Practicing Colorado Criminal Law from both sides for over 40 years.

Introduction:

Few tools in a criminal defense attorney’s arsenal carry as much leverage as a well-supported motion to suppress.

Under the Fourth Amendment and Article II, Section 7 of the Colorado Constitution, no evidence obtained by an unconstitutional search, seizure, or interrogation may be used against a defendant at trial.

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

This article outlines the framework used by Colorado courts in resolving these motions, from procedure and burdens of proof, to the substantive doctrines that govern warrantless searches, consent, Miranda, and the exceptions that can save otherwise tainted evidence.

The Procedural Framework For Colorado Motions To Suppress

Colorado Rule of Criminal Procedure (hereafter Crim. P. 41(e)) governs motions to suppress in Colorado. The Colorado Supreme Court has made very clear that trial courts have “great discretion in managing the suppression hearing.”

A court need not “hear all alternate arguments and evidence relevant to a motion before denying a motion pursuant to Crim. P. 41″ and may

….”determine the most expeditious way to proceed . . . so long as a party is not unfairly prejudiced” by the procedure it orders.

That discretion extends to remand: when an appellate court reverses a suppression ruling, the trial court has discretion to consider new arguments and evidence from either party on any issues not foreclosed by the appellate decision.

Who Bears the Burden and When?

Colorado divides the burden of proof on a suppression motion into stages. Whether the challenged search was by warrant or not, the defendant, as the moving party, has the burden of going forward with a showing that:

(1) the property was 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.

But only after the defendant makes that initial showing does the burden shift to the prosecution “to rebut the allegations of the motion that would otherwise require suppression.” 

If it is alleged that a defendant consented to a search – there is a totally different rule.

The prosecution must prove by a preponderance of the evidence that consent to the search was given voluntarily in order to defeat a motion to suppress, because consent is an affirmative justification for a warrantless search.

The Gateway Threshold Called Standing To Proceed

Before any of the “merits” issues can come into play, a defendant must clear a threshold hurdle called standing.The Fourth Amendment and article II, section 7 of the Colorado State Constitutional protections “are personal to the person asserting them,” so “before a criminal defendant can challenge the constitutional validity of a governmental search, the defendant must demonstrate standing”

A search occurs when THIS defendant has a “legitimate expectation of privacy in the areas searched or the items seized,” a question examined in light of the totality of the circumstances, including whether the defendant had a possessory or proprietary interest, although that factor is “not necessarily determinative.”

An Example – Guest vs Transient

A guest in another’s home may have a reasonable expectation of privacy sufficient to confer standing, but a “purely transient guest probably does not”. And while the illegality of the search is, of course, important, it does not, by itself, give rise to standing; the defendant must make an independent showing of the requisite connection to the place or thing searched.

A Trial Judge’s Decision Is Probably Going To Be Final –  The Appellate Court Standard of Review

Colorado’s two-track appellate review of suppression rulings.

The Colorado Courts of Appeal  “defer to the trial court’s findings of fact but review the trial court’s application of law de novo” . Thus, for example, under this framework, the existence of probable cause is treated as a mixed question of law and fact.

Warrantless Searches: The General Rule of Unreasonableness and Exceptions Part I

Colorado follows the usual constitutional baseline: a warrantless search is invalid unless supported by probable cause and justified under one of the narrowly defined exceptions to the warrant requirement.

A handful of these exceptions are leading the way in Colorado suppression litigation.

Emergency – “Exigent” Conditions

The Colorado Supreme Court has recognized exigency in three situations:

(1) the bona fide “hot pursuit” of a fleeing suspect;

(2) the risk of immediate destruction of evidence; or

(3) a colorable claim of an emergency which threatens the life or safety of another.

In ANY of these situations, evidence is admissible only if the prosecution proves both probable cause and the specific exigency.

Moreover, “the scope of the intrusion must be strictly circumscribed by the exigency justifying” the entry. Officers must have “an articulable basis upon which to justify a reasonable belief that evidence is about to be destroyed.”

The danger must be real and immediate, the fact that evidence is easily destroyed is not enough, standing alone, for the destruction-of-evidence branch.

Warrantless Searches: The General Rule of Unreasonableness and Exceptions Part II

The Automobile Exception

This exception ‘allows an officer to search an automobile if he has probable cause to believe the automobile contains evidence of a crime’.

Significantly, the automobile exception, unlike the exigent-circumstances doctrine, does not require the presence of an independent exigency: “if a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more.”

Probable cause itself is determined by a totality-of-the-circumstances test based on “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

Under this totality analysis, facts that may seem innocuous in isolation—nervousness, inconsistent stories, multiple phones—can combine to establish probable cause.

Searches With Consent

Consent is one of the most litigated exceptions, and Colorado applies an objective, fact-intensive test. Voluntariness is determined by “the totality of the circumstances,” and a defendant’s knowledge of the right to refuse consent is merely “a factor in the determination”—not a prerequisite.

Relevant factors include “the age, education and intelligence of the defendant; the length of time of the detention; the place of the search; the state of mind of the person giving the consent; and anything else which might have influenced the free and unconstrained choice of the defendant.”

Consent is involuntary only where it is the product “of duress or coercion, express or implied, or any other form of undue influence”, the touchstone being whether police conduct “critically impaired the defendant’s judgment”. Even the statutory advisement requirement for vehicle consent searches under section 16-3-310 does not automatically preclude the admissibility of the evidence; rather, the officer’s failure to advise the defendant of the right to refuse is only “a factor” in the voluntariness calculus .

Suppressing Statements: Miranda and Voluntariness

Motions to suppress statements involve two distinct, but related, questions:

(1) whether Miranda warnings were required, and, if so, whether they were properly administered, and

(2) whether the statement was voluntary under principles of due process.

Custodial Cases

Miranda warnings are only necessary when a suspect is subjected to custodial interrogation.

In Colorado, the test for custody is:

…whether a reasonable person in the suspect’s position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest.

Factors courts consider (not an exhaustive list):

1. the time,
2. place, and
3. purpose of the encounter;
4. who was present;
5. the words and tone of officer; 
6. the length and mood of interrogation;
7. any restriction on movement;
8. how defendant reacted to officer commands.

Importantly, an officer’s “unarticulated” purpose or “unarticulated plan” is irrelevant unless it had some bearing on the way a reasonable person would have seen the situation, the test being objective.

Voluntariness of Statements and Miranda Waivers

In another recent case, a Miranda waiver “is deemed voluntary unless there was coercive governmental conduct—either physical or psychological—that was a significant factor in inducing the defendant to make the confession or statement.”

In fact, “a necessary predicate to the finding that a confession is not voluntary” is coercive governmental action.

Claims of self-induced intoxication generally do not defeat a waiver. A waiver is only defeated if the court finds by a preponderance of the evidence that the defendant “was so intoxicated as to be incapable of understanding the nature of his or her rights and the ramifications of waiving them.” The court’s determination is based on a variety of factors, including the defendant’s orientation, responsiveness, and ability to appreciate the seriousness of the situation.

The Good Faith Exception to the Exclusionary Rule

Once a Fourth Amendment violation is established, “[e]vidence obtained as a result of an unconstitutional arrest must be excluded at trial unless an exception to the exclusionary rule applies,” with recognized exceptions including inevitable discovery, the independent source exception, and the attenuation rule.

The good-faith exception, codified at section 16-3-308, C.R.S., provides that

“evidence obtained in violation of the Fourth Amendment should not be suppressed in circumstances where the evidence was obtained by officers acting in objectively reasonable reliance on a warrant issued by a detached and neutral magistrate, even if that warrant was later determined to be invalid”.

The rationale is deterrence-based: “there is little chance suppression will deter police misconduct in cases where the police didn’t know their conduct was illegal in the first place,” so “the social costs of suppression would outweigh any possible deterrent effect.”

The test is whether “a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization,” given all the circumstances surrounding the issuance of the warrant.

The exception has real bite even in new investigative contexts. The Colorado Supreme Court applied it to uphold a “reverse-keyword” digital search warrant precisely

Applying The Law To Some Specific Kinds Of Colorado Criminal Cases

DUI Cases

DUI is where suppression motions are most decisive, since these cases often hinge entirely on one or two pieces of evidence. Common grounds include:

• The initial stop lacked reasonable suspicion. If police pulled a driver over without a valid traffic or equipment violation, everything discovered afterward — field sobriety results, breath test, officer observations — can be suppressed as “fruit of the poisonous tree.” In People v. Carlson, the Colorado Supreme Court upheld suppression where a stop constituted an illegal seizure that tainted all subsequent evidence.

• Improperly administered or unreliable chemical tests. In Colorado v. Hyde, the defendant successfully suppressed blood test results obtained through what the trial court found was an illegal search; in People v. Reynolds, suppression of blood-alcohol results was upheld because the district court applied the correct legal standard.law.

• Faulty breathalyzer calibration or Miranda violations during the arrest process are also frequently cited grounds for suppression or dismissal.

Because DUI prosecutions often rest heavily on the chemical test, suppressing that test can sometimes leave the state with no viable case.

Drug Possession and Traffic-Stop Searches

Drug cases in Colorado overwhelmingly arise from vehicle stops, making Fourth Amendment analysis central:

• Reasonable suspicion for the stop itself. In People v. Cerda, the Colorado Supreme Court affirmed suppression of evidence from a traffic stop because the officer lacked the reasonable suspicion required by statute. Similarly, a 2023 Colorado Supreme Court ruling found police lacked reasonable suspicion for a stop based on an alleged unsafe lane change, undercutting a subsequent drug search.law.

• Scope and consent of vehicle searches. In People v. Thomas, drug paraphernalia and statements were challenged after a warrantless search during a routine stop.

• Whether a “seizure” actually occurred. The Colorado Supreme Court for example has reversed a suppression order because no seizure had taken place before the defendant dropped the drugs — illustrating that timing and sequence of events matter enormously.

• Search warrant validity. Defective affidavits can void an otherwise-executed warrant.

Defense attorneys frequently advise that a successful suppression motion is one of the main paths to getting drug possession charges dropped in Colorado.

Confessions and Statements (Miranda Issues)

A large share of Colorado suppression litigation targets statements made during custodial interrogation:

• If police fail to give Miranda warnings before a custodial interrogation, the resulting statements are typically suppressed — though this does not automatically dismiss the case; other evidence can still support prosecution.

• Courts also examine whether a Miranda waiver was truly “knowing and intelligent” — In one case the Colorado Supreme Court reversed a suppression order because the record didn’t support finding the waiver invalid, while in another case, a suppression order was reversed where drug impairment was alleged to have undermined a knowing waiver.law.

• Separately from Miranda, statements must be voluntary under due process — involuntary confessions (e.g., from coercion or diminished mental state) are suppressible regardless of Miranda compliance.

Other Case Types

• Search warrant challenges (sex crimes, burglary, homicide cases involving digital or physical evidence): courts scrutinize whether the warrant’s affidavit established probable cause with sufficient particularity — a live issue in a 2023 Colorado Supreme Court case involving Seymour, where the affidavit was challenged for lacking probable cause and particularity.

• Digital evidence (cell phones, cloud accounts): the “private search doctrine” from People v. Morse addresses when evidence a private party discovers and hands to police remains admissible without a warrant.

Standing to challenge a search: even non-owners (e.g., unauthorized rental car drivers) may have standing if they show a legitimate expectation of privacy, as Colorado’s Supreme Court held regarding gift-wrapped packages found during a stop.

Domestic Violence Cases

What Happens If the Motion Wins or Loses

If suppression is granted, the prosecution must rely on remaining evidence or may drop charges; they can also pursue an interlocutory appeal under C.A.R. 4.1 (this is why so many of the cases above are appellate rulings — Colorado allows the state to immediately appeal a suppression order rather than waiting for trial).

If denied, the defense may still pursue other angles, an interlocutory appeal, or ultimately certiorari review by the Colorado Supreme Court.

This is general legal information, not legal advice for a specific case — if you’re facing charges, the strength of a suppression motion depends heavily on the specific facts of the stop, search, or interrogation, which a Colorado criminal defense attorney would need to review.

Colorado Criminal Law – Motions To Suppress In Colorado: A Guide

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.

ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.