Arrest, Search, and Seizure

Fourth Amendment

• "The right of the people to be secure... against unreasonable searches and seizures..."

• Prohibits unreasonable searches and seizures

• Requires probable cause and specific warrants

Search & Seizure Definitions

• Search: Government agents look for evidence intruding on privacy

• Seizure: Agents take possession of property or people

• Privacy is the central concept of a free society

Three Types of Police-Citizen Encounters

1. Consensual Encounter

2. Investigatory Stop

3. Arrest

• Arrest and investigatory stops are seizures under the 4th Amendment

Consensual Encounter

• Police approach an individual without violating the 4th Amendment

• Individual is free to leave or terminate the encounter

• Cooperation is voluntary

Test for a “Consensual” Encounter

• "Free to leave" or "free to terminate at any time"

• Test is based on the circumstances of the encounter

• Social pressure alone doesn’t make it non-consensual

Factors to Consider in a Consensual Encounter

• Number of officers

• Display of weapon

• Physical contact

• Language or tone of voice suggesting compliance is mandatory

Characteristics of a Consensual Encounter

• Informal and conversational

• Tone is casual and friendly

• Officer requests or asks, doesn’t demand

• No physical restraint or impediment to citizen’s progress

How to Ensure a Consensual Encounter Remains Consensual

• Don’t tell the suspect to “stop,” “freeze,” or “halt”

• It’s okay to walk alongside but don’t block their path

• Be courteous and inform they are free to leave

Checking ID

• Officers cannot demand ID unless a violation occurs

• Retaining a license may be a seizure

• Can ask for ID, but be quick and polite

What You Can Do with a License? (Without It Being a Seizure)

• Photograph it

• Write down information

• Place in front of body camera

• Verbally record details

Knock and Talk and Investigatory Stops

• Investigatory stop: Immediate response to investigate possible criminal conduct

• Short of arrest, but still a seizure under 4th Amendment protections

Investigatory Stops/Detentions/Seizures

• Officer physically restrains or shows authority to stop an individual

• A reasonable person would not feel free to leave

The Birth of the Investigatory Stop: Terry v. Ohio (1968)

• Det. McFadden observed suspicious behavior and frisked suspects

• Case established the concept of investigatory stops and frisks

Characteristics of an Investigatory Stop

• Brief and temporary detention

• Detention can involve words, authority, or physical contact

• Reasonable person wouldn’t feel free to leave

Fleeing Suspect: Point of Seizure

• Chase alone doesn’t constitute a seizure

• Seizure happens when suspect yields to authority or is physically detained

• Seized items may be abandoned during flight

Requirements for an Investigatory Stop

• Officer must have reasonable suspicion (“criminal activity is afoot”)

• Purpose of stop must be reasonable

• Intrusion must relate to the investigation

Reasonable Articulable Suspicion that Criminal Activity is Afoot (RASCAF)

• Reasonable Articulable Suspicion: facts known to officer, more than a hunch, but less than probable cause

• Must explain specific facts observed at the time he/she makes the stop

Flight and Demeanor

• Unprovoked flight and nervous behavior may contribute to suspicion

• Must be supported by officer experience, knowledge of location, and suspected crime

INFERENCES

A “REASONABLE ARTICULABLE SUSPICION” IS ONE THAT THE OFFICER CAN EXPLAIN AND WHICH IS LOGICALLY BASED ON FACTS AND REASONABLE INFERENCES FROM THOSE FACTS

Articulate and Explain Suspicion

• Articulate facts and logical inferences from those facts

• Provide enough details so a judge can reach the same conclusion

Factors Contributing to Reasonable Suspicion

• Crime reports

• Officer’s experience

• High crime areas

• Smells, conduct, demeanor (flight, concealment, casing a place)

Purpose of Investigatory Stop

To confirm or dispel suspicions of criminal activity through reasonable questioning

Reasonableness: 4-Factor Test

1. Whether the time required for the officers to diligently complete the investigation given the complexity of the situation and their legitimate personal safety concerns.

2. Whether the officer diligently pursued the investigation during the detention.

3. Whether the suspect was moved from one place to another

4. Whether the police acted unreasonably in failing to pursue a less intrusive means of detention

Length of Detention

• Investigatory stops must be brief and cursory

• No set time limit, depends on investigation and circumstances

• Police must resolve suspicions quickly

Statutory Authority for Investigatory Stops

• §16-3-103: Officer may stop a person if they reasonably suspect a crime

• Must give name, address, ID, and explanation of actions

• Not an arrest

(Possible POST Question)

Use of Force During a Stop

• Officer may use force for safety

• Officers may take physical control of or seize a suspect

• May use force in detaining a suspect IF NECESSARY

• The appropriate inquiry is “whether the use of force was “a reasonable precaution for the protection and safety of the investigating officers"

Frisk for Weapons

• Not automatic, not “stop and frisk”

• Must have RAS (Reasonable Articulable Suspicion) that suspect is armed and dangerous

• Purpose is for “officer safety'“

• Not to search for evidence or drugs

Plain Feel Doctrine

• During a frisk, if an officer feels an object that is immediately identifiable as contraband, it can be seized

Statutory Authority for Frisking

• §16-3-103(2): Officer may frisk for weapons if they reasonably suspect it is necessary for personal safety

Dog Sniff During Investigatory Stop

A dog sniff is allowed during a stop as long as it doesn’t prolong the stop unnecessarily

Exception to Investigatory Stop: Checkpoints

• Checkpoints are an exception to the 4th Amendment

• Must have established procedures in advance

Investigatory Stop vs. Arrest

• Detained: Suspect is stopped for investigation

• Under Arrest: Suspect is formally arrested

• If detention and questioning exceed brief and cursory, it becomes an arrest, requiring probable cause

Indications of Arrest

• Signs of Arrest:

  • Guns drawn

  • Moving the detainee

  • Handcuffing

  • Placing detainee in patrol car

• These actions can also occur during an investigatory stop, but they may indicate a shift to an arrest if not justified by the situation.

Arrest "Defined"

• Arrest: The act of taking a person into custody against their will

• Purpose: For criminal prosecution or interrogation

Types of Arrest

• Two Types of Arrest:

  1. With a warrant

  2. Without a warrant

• Arrests without a warrant are presumed unconstitutional; prosecution must prove otherwise

• All arrests must be justified by probable cause

Probable Cause to Arrest

• Probable Cause: Reasonably trustworthy information that a person has committed an offense

• Key Points:

  • Fair probability of criminal activity

  • Not "more probable than not"

  • Not "beyond a reasonable doubt"

Two Requirements for Arrest

Probable Cause must establish:

1. An offense was committed

2. The person to be arrested committed the offense

Establishing Probable Cause

• Probable cause can be established through:

  1. Officer’s own knowledge of facts and reasonable inferences

  2. Information from a reliable third person (e.g., named citizen, reliable informant)

  3. Timely information + corroboration

Warrantless Arrests

• Arrests with a warrant are preferred, but over 90% of all arrests are made without a warrant.

Statutory Authority to Arrest: §16-3-10

A peace officer may arrest a person when:

1. (a) There is an arrest warrant

2. (b) A crime is committed or happening in the officer's presence

3. (c) Probable cause exists that an offense was committed and that the person to be arrested committed it

Probable Cause Can Be Developed From:

• Personal observations of the officer

• Information from citizens (named or anonymous)

• Fellow officers providing information

Named Informants

• Presumed to be reliable

• Additional corroboration not required

• Exception: Co-participants may require further corroboration

Anonymous Informants

• Corroboration required

• Continuum: Less known about the informant = more corroboration needed

• Totality of the circumstances:

  • Previous reliability of informant

  • Detailed information provided

  • Police corroborating details (e.g., time, place, vehicles)

The "Fellow Officer Rule"

• The arresting officer does not need to have all information for the stop, arrest, or search

• Information can be imputed from the police as a whole if:

  1. The officer acts as part of a coordinated investigation

  2. The police, as a whole, have sufficient information at the time of the search or arrest

Statutory Authority - Arrest Warrants: §16-3-108

• A court issues an arrest warrant based on:

  • Affidavit sworn before a judge or notary public

  • Facts have to establish probable cause that an offense was committed and that the person committed it

• The warrant commands a peace officer to arrest the individual and bring them before the nearest judge without unnecessary delay

Arrest in a Suspect’s Home

• The 4th Amendment prohibits warrantless and nonconsensual entry into a suspect’s home for routine felony arrests

• Exceptions:

  • If the police have an arrest warrant, they may enter the home if:

    1. They have reasonable grounds to believe the suspect lives there

    2. They have reasonable grounds to believe the suspect is currently present in the home

  • This applies to both motels and residences.

Arrest in a Third Party’s Home

To arrest a suspect in a third party's home, both an arrest warrant for the suspect and a search warrant for the third party’s home are required.

(May be POST question)

Warrant Issuance Requirements

• The issuance of a warrant is a judicial function and must be performed by a judge or magistrate

• The issuing party must be neutral and detached.

Statutory Authority - Manner of Arrests: §16-3-101

• Arrests can be made at any time, day or night

• Reasonable force may be used:

  1. To make an arrest

  2. To effect an entry into a building or property for an authorized arrest

Use of Force

• An officer may use reasonable and appropriate force to make an arrest

• Reasonable force depends on the circumstances

• Using more force than necessary is a constitutional violation.

Statutory Authority - Use of Physical Force During Arrest: §18-1-707(1)

• Nonviolent means should be used first when possible

• Physical force may only be used if nonviolent means are ineffective in:

  1. Effecting an arrest

  2. Preventing an escape

  3. Preventing imminent threat of serious bodily injury or death to the officer or others

Statutory Authority - Use of Physical Force During Arrest: §18-1-707(2) (Continued)

• When physical force is used, a peace officer must:

  • Not use deadly force for minor or nonviolent offenses

  • Use a degree of force that minimizes injury to others

  • Render medical aid to injured persons as soon as possible

  • Notify next of kin of serious injury or death as soon as possible

Statutory Authority - Use of Chokeholds: §18-1-707(2.5) (Continued)

• Chokeholds are prohibited

• Definition of chokehold:

  • Applying pressure to the neck, throat, or windpipe that hinders breathing

  • Applying pressure to the neck to stop blood flow via the carotid arteries

• Key takeaway: Do not touch the neck.

Statutory Authority - Use of Deadly Physical Force: § 18-1-707(3)

Deadly physical force is justified for arrest when:

• All other means are unreasonable given the circumstances

• The arrest is for a felony involving deadly force or threat of it

• The suspect poses an immediate threat to the officer or others

• The force does not create a substantial risk to others

Statutory Authority - Use of Deadly Physical Force: § 18-1-707(4) & (4.5)

• Officer must identify themselves and give a clear verbal warning before using deadly force, unless it risks officer or public safety

• Deadly force is justified if:

  • The officer objectively and reasonably believes lesser force is inadequate

  • The officer reasonably believes there is imminent danger of death or serious injury

(POST Test Question)

Searches - Definition and Types

• Search: Governmental intrusion into a person's reasonable expectation of privacy

• Types of Searches:

  • With a Warrant

  • Without a Warrant

Threshold Questions for a Search

• Is there government action?

• Is there a reasonable expectation of privacy in the area or thing to be searched?

General Rules – Search and Seizure
What is the highest level of constitutional protection for searches and seizures?

• The person’s home warrants the highest level of constitutional protection.

• Searches and seizures inside a home without a warrant are presumptively unreasonable (Groh v. Ramirez, 540 U.S. 551, 2004).

• Legitimate expectation of privacy is determined after examining all facts and circumstances in a particular case.

• Examples of places with varying expectations of privacy:

  • Home (highest protection)

  • Automobile

  • Open field (no expectation of privacy)

Curtilage – Definition and Protection
What is the legal concept of curtilage, and how is it protected under the law?

• Curtilage refers to the area immediately surrounding a dwelling, offering the same protection under the law as the house itself.

• United States v. Dunn (1987): Curtilage is protected under the law of burglary, extending the same protection as the dwelling.

• California v. Ciraolo (1986): The curtilage is the area associated with the sanctity of a person's home and the privacies of life.

• Generally includes the dwelling and nearby outbuildings.

How to Determine if an Area is Within Curtilage
What are the factors used to determine if an area falls within the curtilage of a home?

• Proximity of the area to the home

• Whether the area is included in an enclosure surrounding the home

• Nature of the use to which the area is put (must be known prior to the search)

• Steps taken by the resident to protect the area from observation

Abandonment of Property
What happens to the Fourth Amendment protections if property is abandoned?

• Abandoned property is not protected by the Fourth Amendment because there is no reasonable expectation of privacy.

• Even if a party has not formally relinquished control, their actions can demonstrate abandonment, terminating their standing to object to a search.

Search Warrants
What is a search warrant?

A search warrant is a written order issued by a magistrate, directing a peace officer to search for property connected with a crime and bring it before the court.

Basic Requirements for a Search Warrant

1. Statement of probable cause

2. Supporting oath or affirmation

3. Particular description of the place to be searched and the thing to be seized

4. Signature of magistrate/judge

Affidavit and Probable Cause for Search Warrants
What must the affidavit establish for a search warrant to be valid?

1. The thing sought is likely to be found in the place to be searched.

2. The thing sought is likely to be there at the time of the search.

• Magistrate/judge will only review information within the "four corners" of the affidavit.

Statutory Authority for Search Warrants: § 16-3-301
What property can a search warrant be issued to search for and seize?

• A search warrant can be issued for:

• Stolen or embezzled property (e.g., stolen ID cards)

• Property intended for criminal use (e.g., forgery device, burglary tools)

• Property used in committing a crime (e.g., gun)

• Illegal possessions (e.g., drugs)

• Material evidence for criminal prosecution (e.g., hoodie suspect was wearing)

• Property required by statute (e.g., pawnbroker records)

• Items posing a serious threat to public safety (e.g., meth lab chemicals)

• Items aiding in the capture of a person with a warrant (e.g., tracker)

Statutory Authority for Search Warrants: § 16-3-301 (3) & (4)
What additional search warrants are allowed, and what is prohibited?

• A search warrant can be issued to search for any person with an outstanding lawful arrest warrant (referred to as a (“Body Warrant”).

• A court cannot issue a search warrant for property related to an investigation into legally protected healthcare activities (e.g., gender affirming care or reproductive health…something illegal here but not somewhere else).

Search Warrant Affidavit Requirements: § 16-3-301 (2)
What must be included in the affidavit for a search warrant?

• The affidavit may include sworn testimony, reduced to writing and signed under oath by the witness giving the testimony.

• A copy of the affidavit and the transcript of testimony must be attached to the search warrant when filed with the court.

Search Warrant Execution and Return: § 16-3-305
What are the requirements for executing and returning a search warrant?

• Peace officers must execute the search warrant in their respective counties or municipalities and make due return of it.

• A search warrant must be executed within 14 days of its issuance.

• For electronic devices, they must be seized within 14 days, but the search can occur after that period.

Search Warrant Execution and Return: § 16-3-305
What are the rules for searching a dwelling?

• Dwelling searches must occur between 7 am and 7 pm, unless a judge expressly authorizes a different time for good cause.

• Officers must be identifiable as law enforcement (in uniform or with a badge) and must announce their presence.

• They must activate body-worn cameras (BWC).

• Knock-and-announce: Officers must ensure their presence is heard and allow a reasonable amount of time for someone to answer the door.

• If someone is approaching to voluntarily let them in, officers must delay entry.

• Exception: No-Knock warrants are permitted.

(POST Test Question)

CRIM. P. 41(D)(3) – Execution of Warrant
What does CRIM. P. 41(D)(3) authorize regarding the execution of a search warrant?

Unless the court directs otherwise, every search warrant authorizes officers to:

• Execute and serve the warrant at any time.

• Use reasonable force as necessary to carry out the duties commanded by the warrant.

Warrantless Searches
What is the general rule regarding searches without a warrant, and what are the 7 exceptions?

• The burden is on the police to establish that an exception to the warrant requirement applies.

• The 7 exceptions to warrantless searches are:

  1. Pat-down

  2. Search incident to arrest

  3. Consent

  4. Exigent circumstances

  5. Automobile

  6. Inventory

  7. Plain view

Search Incident to Arrest
What justifies a search without a warrant during a lawful arrest?

A lawful arrest justifies a contemporaneous search without a warrant:

1. Of the person arrested

2. Of the immediate surrounding area

Scope of Search Incident to Arrest
What is the scope of a search incident to arrest?

• The search is broad and need not be limited to a mere pat-down.

• It may extend to:

  • Pockets

  • Other containers (open or closed)

  • Items found on the person or within their immediate reach

Contemporaneous Requirement
What is the contemporaneous requirement for a search incident to arrest?

• The search must be conducted at about the same time and place as the arrest.

• The search incident to arrest must be contemporaneous with the arrest.

Consent
What makes a consent search involuntary?

• A consensual search is involuntary when it is the result of duress or coercion, express or implied.

• Undue influence includes promises, threats, or intrusive police conduct.

Voluntariness Factors
What factors determine if consent to a search is voluntary?

• Characteristics of the defendant (age, education, knowledge)

• Circumstances of the search (location, duration)

• Environment and the defendant's perceptions during consent.

• Consent can be express (words) or implied (conduct).

• Consent is limited by the words used by the person giving consent.

• Miranda warnings are not required before requesting consent.

• Use a written consent form if possible.

Advisement of Rights for Consent
What must the police advise a suspect about consent to search under §16-3-310?

• Police must inform a suspect (not under arrest) that they are being asked to voluntarily consent to a search.

• The suspect has the right to refuse consent for a search of their person, effects, or vehicle.

• Failure to advise does not invalidate consent but is a factor in determining voluntariness.

Consent Must Be Clear
What is the significance of silence or failure to object in the context of consent to search?

• Mere silence or failure to object does not necessarily mean consent.

• Consent to enter does not automatically imply consent to search.

• Consent must be clear and unambiguous.

Apparent Authority
What is required for a third party to give valid consent to search property?

• A third party must have "common authority" or a sufficient relationship to the property to give valid consent.

• Ownership alone (e.g., landlord) does not grant consent authority.

• Co-occupants cannot give consent if another occupant expressly objects, especially if the objecting party is physically present.

Who May Give Consent?
Can a landlord, hotel clerk, family member, or roommate give consent to search?

• Consent authority is based on reasonable belief that the consenting person has control or authority over the premises.

• Examples of possible consent-givers:

  • Landlord (no, unless they have authority)

  • Hotel clerk (no, unless they have access and control over the room)

  • Family member or spouse (no, unless they have shared authority)

  • Overnight guest or roommate (no, unless they have joint access and control)

Scope of Search with Consent
Can the scope of a consensual search be limited?

• Yes, the scope of a consensual search can be confined to specific items or restricted to certain areas or locations.

• The limits of the search are based on the terms provided by the person giving consent.

Limits of Consent
Can police use consent to search for specified items as a license for general exploration?

• No, police cannot use consent to search for specific items as a license for general exploration.

• However, if they observe other items in plain view that are immediately recognizable as evidence or contraband during the search, they may seize those items under the plain view doctrine.

Exigent Circumstances
What are exigent circumstances in the context of warrantless searches?

Exigent circumstances refer to situations where an emergency makes obtaining a search warrant impractical. These circumstances are a catch-all category that cover various situations, but all share the need for immediate action.

Exigent Circumstances - Definition
What is the definition of exigent circumstances?

• Exigent circumstances are situations that demand immediate or unusual action. They occur when law enforcement agents cannot effectuate an arrest, search, or seizure based on probable cause unless they act swiftly, without prior judicial approval.

Categories of Exigent Circumstances
What are the categories of exigent circumstances?

• Emergency aid

• Danger of physical harm to the officer or another person

• Immediate destruction of evidence

• Hot pursuit

Danger of Physical Harm to Officer/Another (Protective Sweep)
What does the Fourth Amendment permit regarding a protective sweep during an in-home arrest?

The Fourth Amendment permits a protective sweep during an in-home arrest if the officer has a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those at the scene.
Maryland v. Buie, 494 U.S. 325

Destruction of Evidence
What is the rule for entering or searching in situations where evidence might be destroyed?

It is permissible to enter or search if there is an articulable suspicion that justifies a reasonable belief that evidence is about to be removed or destroyed.
Typical example: drug case with buy money.

Emergency / Public Safety?
What justification did officers have to enter in the People v. Winnpigler case?

Officers were concerned for their safety and the emergency situation posed by the possible explosion from improperly stored chemicals related to drug manufacturing. The presence of swords and the smell of chemicals raised safety concerns.

Emergency / Public Safety?
How did the court justify the police actions in People v. Kluhsman and People v. Clements?

In People v. Kluhsman, police had probable cause based on the suspect’s appearance and statements about people being harmed in his home, justifying the search due to potential danger.
In People v. Clements, the officers acted properly by opening the trunk of a car due to the strong odor of ether and the known instability of ether, which posed a risk of explosion.

Emergency / Public Safety?
How did the court justify the police actions in Brigham City, Utah v. Stuart?

In Brigham City, Utah v. Stuart, the officers entered the home without a warrant after responding to complaints of a loud party. They heard fighting and yelling and observed a juvenile hitting an adult, causing the adult to spit blood. This imminent threat of harm justified the officers' entry under exigent circumstances for public safety.

Hot (Fresh) Pursuit
When does Colorado law allow police to pursue a fleeing suspect into a home?

Colorado law allows police to pursue a fleeing suspect into a home without a search or arrest warrant under the "hot pursuit" exception. This applies in emergency situations when a suspect commits a felony offense in a public place and flees. However, the exception generally does not apply for misdemeanor offenses.

Blood Draws
Is a blood draw considered a search under the Fourth Amendment?

Yes, a blood draw for chemical testing is a search under the Fourth Amendment. Natural dissipation of alcohol alone is not enough to establish exigency. However, other exigent circumstances, such as impending medical procedures affecting the accuracy of a later sample, may justify a warrantless blood draw.

Plain View Doctrine
What is the Plain View Doctrine?

The Plain View Doctrine allows the seizure of contraband and evidence of a crime without a warrant when a police officer is lawfully present on the premises.

Plain View Requirements
What are the requirements for the Plain View Doctrine to apply?

• For the Plain View Doctrine to apply, the police may seize evidence without a warrant if:

1. The initial intrusion onto the premises was legitimate.

2. The police had a reasonable belief that the evidence was incriminating.

3. The police had a lawful right of access to the object.

Mechanical Devices and Plain View Doctrine
Do mechanical devices affect the applicability of the Plain View Doctrine?

• No, the use of mechanical devices such as flashlights and binoculars does not affect the applicability of the Plain View Doctrine.

Use of Special Devices and Search Doctrine
Is the use of devices not commonly used by the public considered a search?

• Yes, using devices not available to the general public can be considered a search.

• This is true if the device reveals private, lawful activity inside a home.

• Examples of such devices include:

  • GPS (e.g., Starchase)

  • Pole cameras

  • Thermal imaging

  • AirTags

  • Night vision

• Case reference: People v. McKnight, 446 P.3d 397, 408 (Colo 2019)

General Rules: Expectation of Privacy
What is the expectation of privacy, and why does it matter?

• Expectation of Privacy refers to the level of privacy a person is entitled to under the Fourth Amendment.

• Home: Highest level of privacy protection. Searches inside a home without a warrant are generally unreasonable.

• Automobile: Moderate privacy protection; vehicles can be searched with probable cause.

• Open Field: No expectation of privacy; the police can search open fields without a warrant.

• This framework helps define the extent to which government searches and seizures are permissible.

Automobile Searches
When can police search a car without a warrant?

• Warrantless Search: Police can search a vehicle without a warrant if they have probable cause to believe it contains evidence of a crime, illegal items, or contraband.

• Examples of Probable Cause:

  • Smell of drugs

  • Visible weapons

  • Open alcohol containers

• Key Point: The mobility of a vehicle and the potential for evidence to be moved or destroyed justifies this exception to the warrant requirement.

Open Fields Doctrine
What does the Open Fields Doctrine state?

• Undeveloped or unoccupied areas outside of the curtilage have no expectation of privacy.

• These areas are considered open to the public and are not protected by the Fourth Amendment.

Open Fields - Example
What is the ruling in United States v. Dunn (1987)?

• A barn located 60 yards from the home and 50 yards outside the fence is not within curtilage.

• Despite being used for drug manufacturing, the barn was not protected by an expectation of privacy.

• The low fence was designed for livestock, not privacy.

• Held: No expectation of privacy.