H. Michael Steinberg has 38+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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The Changing Face of Probable Cause for Search Warrants in Colorado

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

Probable Cause

Probable cause is the standard of proof necessary to support a search an arrest warrant and is the quantum of proof that is necessary to support a warrantless arrest.

The United States and Colorado Constitutions prohibit the 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 writing, and so probable cause must be established within the four corners of the warrant or its supporting affidavit.

Analysis of probable cause is not governed by hypertechnical legal rules; rather, a Colorado 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. It involves common-sense conclusions about human behavior.

The Colorado Supreme Court has 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.

In the 2010 case of People v. Scott, the Defendant had challenged a second search warrant to search his home as having been issued without probable cause.

The lower court concluded the police affidavit offered in support the second warrant was insufficient to establish probable cause and granted his motion to suppress the evidence seized using that warrant.

After review, the Colorado Supreme Court reversed the lower court and concluded that the two affidavits (one from the first search and the second affidavit) could be read together and “ that the constellation of facts set forth by the two affidavits was 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. This was not the case here and the Court’s reading greatly expanded the old rule.

To read the entire decision see:

http://www.cobar.org/opinions/opinion.cfm?opinionid=7573&courtid=2