Unlawful Search in Colorado

What is an unlawful search in Colorado?

Unlawful search is a search conducted without a search warrant that is not justified under any of the narrowly tailored exceptions to the warrant requirement. The Fourth Amendment of the United States Constitution and Article II, section 7 of the Colorado Constitution protects individuals from unreasonable searches. Warrantless searches are unconstitutional unless they are justified under one of the narrowly defined exceptions to the warrant requirement. If a police officer searches a citizen without a warrant that search is presumptively unreasonable.

Unlawful search cases arise in a variety of contexts including when a police officer stops a person without reasonable suspicion and searches their body as part of an unjustified pat down or terry frisk, warrantless home searches, warrantless car searches, pretense searches where police lie to justify an otherwise illegal search, and unconstitutional strip searches.

Some unlawful search cases are motivated by racial animus. These unlawful search cases often arise in so called driving while black or driving while brown cases. In this fact pattern a police officer sees a minority driving a car and comes up with a pretense to initiate a traffic stop and search that persons car despite the absence of suspicious activity.

As citizens have a constitutional right to be free from unreasonable searches, if the individual who made the unreasonable search is a government official, which police officers are, then the citizen has the right to bring a civil rights suit under 42 U.S.C. § 1983 and C.R.S. § 13-21-131.

The purpose of an unlawful search civil rights suit is to compensate a person for actual and compensatory damages stemming from the unlawful search, including loss of reputation, loss of income, general emotional damages, attorneys fees, costs, and other damages stemming from having been searched in the absence of a search warrant or justification under the exceptions to the warrant requirement.

Before determining if you have a viable unlawful search case it is important to understand how courts will determine if a search within the meaning of the Constitution occurred and weather that search was justified under one of the carefully delineated exceptions to the warrant requirement that justify police officers conducting a warrantless search.

What is the meaning of a “search” under the Fourth Amendment and Art. II, section 7?

In Fourth Amendment and search jurisprudence courts have established two tests for what constitutes a “search” within the meaning of the Constitution. These tests are called the “trespass test” and the “reasonable expectation of privacy” test.

The “trespass test” is a property-rights-based approach. Under the oldest common law judicial and statutory precedents, police perform a “search” when there is a physical occupation, intrusion, interference, or taking of a person and/or his/her private property. This is explicitly recognized in the text of the Fourth Amendment which states that the people have a right “to be secure in their persons, houses, papers, and effects …” So, people have a right to be free from unreasonable searches with respect to their physical persons including their pockets, backpacks, and purses they’re carrying, homes, papers, and effects.

With the advent of modern technology the concept has been expanded to other physical properties like automobiles.

The “reasonable expectation of privacy test” is broader and does not depend on a police officer’s physical interference with tangible property. Whether an expectation of privacy is “legitimate” is determined by a two-part inquiry: whether one actually expects that the area or activity subjected to governmental intrusion would remain free of such intrusion, and whether “that expectation is one that society is prepared to recognize as reasonable.

What are the exceptions to the warrant requirement in unlawful search cases that police will raise to justify the search?

Although the Fourth Amendment and Article II, section 7 protects citizens from “unreasonable searches ” by law enforcement, a number of exceptions to the warrant requirement exist that permit police officers to conduct warrantless searches in certain carefully delineated situations. Over the years, the Supreme Court has carved out exceptions to the warrant requirement to prevent valuable evidence from being destroyed and to ensure officer safety. These carveouts give police officers affirmative defenses to unlawful search civil rights claims.

The exceptions to the warrant requirement that police may use to justify an otherwise warrantless search include

Consent searches

In Colorado consent searches exist where the citizen’s consent is voluntary. Consent is voluntarily given to police officers to conduct a search if the consent is the product of an essentially free and unconstrained choice by its maker. It cannot be the result of circumstances which overbear the consenting party’s will and critically impair his or her capacity for self-determination. Consent is involuntary, however, if it is the result of duress or coercion, express or implied, or any other form of undue influence exercised by the police against the defendant. Undue influence includes promises, threats, and intrusive or threatening police conduct. Consent may be express, or it may be implied through words, actions, or both.

Exigent circumstances exceptions

Exigent circumstances constitute one possible exception to the requirement to obtain a search warrant. As the name suggests, exigent circumstances constitute an exception to the warrant requirement because, where these circumstances occur, the public’s interest in a timely police response to emergent and fast-developing situations outweighs an individual’s privacy interests. There are three particular situations in which a warrantless search is reasonable in light of the exigent circumstances surrounding the search: when (1) the police are engaged in “hot pursuit” of a fleeing suspect; (2) there is a risk of immediate destruction of evidence; or (3) there is a colorable claim of emergency threatening the life or safety of another.

Emergency aid exception

The emergency aid exception to the Fourth Amendment warrant requirement applies when there is a colorable claim of an emergency threatening the life or safety of another, and it is an exception to both the warrant and probable cause requirements. However, this exception does not give police officers carte blanche to make a warrantless entry whenever there is a theoretical possibility that another’s life or safety is in danger. Rather, there must be both an immediate crisis and the probability that assistance will be helpful. The police must also have a reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Moreover, the police officer’s primary purpose in conducting the search must be to render emergency assistance, not to search for evidence. Accordingly, the emergency search is strictly limited by the exigency arising from the emergency and does not support a general exploratory search.

Search incident to arrest exception

Under the search incident to arrest doctrine police officers are allowed to search arrestee’s person the area within the arrestee’s immediate control without a warrant. For the search incident to arrest exception to apply in an unlawful search case, the arrest must have been lawful – there must have either been an arrest warrant or the arrest must have been supported by probable cause.

Search incident to arrest automobile search

A police officer may search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. However, the search incident to lawful arrest exception to the warrant requirement of the Fourth Amendment is not applicable when a person has been arrested for a traffic violation and remains handcuffed in the back of a patrol car while the search is conducted.

Plain view exception

The plain view exception provides that police officers are not required to close their eyes to any evidence that they plainly see while conducting otherwise legitimate searches. There are three requirements to the plain view doctrine: (1) the intrusion must have been legitimate; (2) the officers must have had a reasonable belief that the evidence seized was incriminating; and (3) the officers must have had a lawful right of access to the evidence. The first prong is met when probable cause and exigent circumstances justify the officers’ presence. The second prong exists when police have probable cause to believe the evidence is incriminating, and the incriminating nature is immediately apparent to the officers.

Protective sweep exception

The protective sweep exception permits an officer to conduct a protective search for weapons, known as a “protective sweep.” An officer is entitled to conduct a protective sweep of the areas of a vehicle’s passenger compartment where a weapon may be placed or concealed, so long as the officer possesses “reasonable suspicion” that an occupant of the vehicle may be dangerous and may gain immediate control of a weapon.

Proving an unlawful search case in Colorado

In a claim for unlawful search, the plaintiff must prove by the preponderance of the evidence each element of unlawful search, that

The Defendant is a “Peace Officer” (acting under color of law);
the Defendant, acting in his capacity as a Peace Officer, searched Plaintiff.
At the time of the search Defendant did not have a warrant for such search.

If the jury finds that any one or more of these three statements has not been proved, then the verdict must be for the defendant. On the other hand, if the jury finds that all of these three statements have been proved, then the jury must consider the affirmative defense of an exception to the constitutional warrant requirement permitting an officer to conduct a warrantless search pursuant to [INSERT EXCEPTION TO WARRANT REQUIREMENT].

If the jury finds that this affirmative defense has been proved by a preponderance of the evidence, then the verdict must be for the defendant. However, if the jury find that this affirmative defense has not been proved, then the verdict must be for the plaintiff.

What is the statute of limitations for an unlawful search civil rights claim in Colorado?

The statute of limitations for civil rights suits in Colorado brought under 42 U.S.C. § 1983 or C.R.S. § 13-21-131 is two years from the time a cause of action accrues. Unlawful search civil rights claims arising out of police actions toward a citizen are presumed to have accrued when the actions actually occurred.

Contact Denver’s trusted unlawful search attorney to find out if you have a viable unlawful search case

Unlawful search cases are often complex as they require an in depth understanding of the Constitution and Fourth Amendment and search related jurisprudence. When a person is unlawfully searched they can experience a wide array of harms including embarrassment, loss of reputation, lost property, and if also arrested, lost income, lost housing, job termination, lost medical care, and wrongful incarceration. Unlawful search cases require thorough investigation and steadfast advocacy to prevail in court. A skilled unlawful arrest attorney can help you hold the police officers who searched you without a warrant or exception to the warrant requirement justifying the search accountable for violating your constitutional rights.

To know whether or not you have a viable unlawful search case, the first step is to contact Rights & Liberties Law Firm to start your free police misconduct civil rights case evaluation. If your rights have been violated and your liberties trampled by a cop who unlawfully searched you, the attorneys at Rights & Liberties Law Firm are here to fight for you and get you the justice and compensation you deserve.

Three-Step Path to Civil Rights Representation

Step one. If you’ve been the victim of police brutality or a government officer has violated your or a loved one’s rights, complete our Free Civil Rights Case Evaluation. Confidentially upload videos, photos, and other documents of evidentiary value directly to our civil rights case evaluation portal and start the process of holding those who abuse their powers accountable for violating your rights. Civil rights cases rise and fall on the facts of the case. Our Free Civil Rights Case Evaluation is designed to gather the information necessary to determine if you have a case where we can vindicate your rights and get you the justice and compensation you deserve. Be sure to answer each question in our Free Civil Rights Case Evaluation in a detailed and clear manner.

Step two. Our team will evaluate your case. If we need additional information from you to complete your case evaluation we will contact you. Once we’ve completed your case evaluation, we will promptly contact you to let you know if we can help you with your case. If so we’ll schedule a consultation to learn more about your story.

Step three. During our consultation we’ll determine if there’s a viable path to vindicate your rights. If there is, and you’re ready to hold those accountable who violated your rights, we’ll provide you with a contingency fee agreement to review and sign. Then the fight is on. You pay nothing until we’re victorious.