Colorado is one of the first states in the nation to enact a requirement be placed on police officers in citizen – police contacts. 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 no such requirement to advise the citizen of their right to refuse to be searched or to have their automobile searched. This new law – enacted in 2010 – creates such a requirement. Here is a summary of the law followed by the actual law itself.
Restated, this new 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. This new law 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, but 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.
The Bill was called H.B. 10-1201 Consensual searches – person, automobile, or effects – advisement – consent before search – remedy for violation – applicability.
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.
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 the actual law itself:
16-3-310. Oral Advisement and Written Consent Prior to Search of a Vehicle or a Person During a Police Contact
- Prior to conducting a consensual search of a person who is not under arrest, the person’s effects, or a vehicle, a peace officer shall comply with paragraph (b) of this subsection (1).
- A peace officer may conduct a consensual search only after articulating the following factors to, and subsequently receiving consent from, the person subject to the search or the person with the apparent or actual authority to provide permission to search the vehicle or effects. The factors are:
- The person is being asked to voluntarily consent to a search; and
- The person has the right to refuse the request to search.
- After providing the advisement required in paragraph (b) of this subsection (1), a peace officer may conduct the requested search only if the person subject to the search voluntarily provides verbal or written consent. Other evidence of knowing and voluntary consent may be acceptable, if the person is unable to provide written or verbal consent.
- A peace officer providing the advisement required pursuant to subsection (1) of this section need not provide a specific recitation of the advisement; substantial compliance with the substance of the factors is sufficient to comply with the requirement.
- If a defendant moves to suppress any evidence obtained in the course of the search, the court shall consider the failure to comply with the requirements of this section as a factor in determining the voluntariness of the consent.
- This section shall not apply to a search conducted pursuant to section 16-3-103, C.R.S., a valid search incident to or subsequent to a lawful arrest, or to a search for which there is a legal basis other than voluntary consent. This shall include, but not be limited to, a search in a correctional facility or on correctional facility property, a detention facility, county detention facility, custody facility, juvenile correctional facility or any mental health institute or mental health facility operated by or under a contract with the department of human services, a community corrections facility, or a jail or a search of a person subject to probation or parole by a community supervision or parole officer when the person has consented to search as a term and condition of any probation or parole.
H. Michael’s Take
It is about time. The people have a right to know their privacy rights – and the police should not be allowed to take advantage of their ignorance and to take advantage of the obvious circumstance of intimidation inherent in all police citizen encounters in Colorado.