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By Colorado Criminal Defense Lawyer – Attorney H. Michael Steinberg
Were Your Rights Violated By The Police? – Colorado Search and Seizure Issues can be complex. One of the most effective criminal defense strategies is to obtain suppression of damaging evidence against you that was unconstitutionally obtained. This article is intended to assist you and our lawyer in determining whether your case has significant search and seizure issues.
The experienced Colorado criminal defense lawyer knows that a valid and effective strategy in approaching any criminal case is to seek the suppression of evidence based upon grounds referred to as “an illegal search and seizure.” Many cases, especially single issue prosecutions such as possession cases – (drugs or weapons possession charges) are usually almost totally dependent on the seizure of specific evidence. The suppression – or elimination of that evidence is almost fatal to the prosecution’s case.
Filing a motion challenging an alleged illegal search or seizure of evidence also provides the defense an opportunity to “test” the strength and accuracy of the evidence the prosecution intends to offer at trial.
If a search is performed without a warrant – the district attorney has the burden of introducing evidence at the “motions hearing” to prove that the search was constitutional.
The prosecution must prove the police had probable cause to believe you committed a crime or to believe that evidence of a crime was in your possession or within your proximity and control.
The DA must establish through the presentation of much of his or her case – in direct response to your criminal attorney’s motion to suppress – the legality of the search and seizure. This provides an excellent opportunity to closely test the strength of the state’s case.
The questions a lawyer will ask you at the first consultation may be among the following:
Were you stopped by the police? Were you arrested at that time?
At the time of the stop or the arrest – was anything removed from the you or the car.
If the police took something from your person, the car, or your home, what was it – wallets, bags and briefcases, drugs, guns, books, records, or computers and computer related storage devices such as external hard drives, thumb drives, or cell phones?
If the police seized any of these or other items – did they open or search them without a warrant – if so – where did they open them, how did they open them – and under what circumstances were they opened?
If the search involved an examination your body – was any evidence taken from your body such as hair, blood, DNA swabs, fingerprints or urine?
Was there a seizure – impound of the car you were driving – or the car in which you were present as a passenger?
Was there an entry and search of your home, where you work, or another location where you had an expectation of privacy?
Did law enforcement illegally wiretap – intercept or listen in on your private telephone conversations, your email or other computer communications – such as text messages?
In our modern society – high tech monitoring is common and has greatly exceeded the “bug” of the forties and fifties – did law enforcement use this technology to follow you – to monitor your activities or “see” into a location where you had a constitutionally protected “expectation of privacy?”
Whether the use of so called “sense-enhancing devices” constitutes a search – will depend on several factors, the most important of which is whether the device enables the police to gather information about the interior of a residence.
Whether the technology is in general public use.
Whether the technology yields information that otherwise could not be obtained without a physical intrusion into the home.
The extent and breadth of the information gathered.
|In order to claim the protections of the Fourth Amendment, a defendant must demonstrate that he personally has an expectation of privacy in the place searched, and that his expectation is reasonable; i.e. one that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128|
“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protections. . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz, 389 U.S. at 351, 88 S.Ct. at 511. (BANNER)
Two conditions must be present:
Does this person have an expectation of privacy that is protected under law?
Is that expectation now the subject of the challenged search?
The intrusion that is “the search” must be based on some legally recognized justification – either probable cause or reasonable suspicion.
The police do NOT have to justify approaching you on the street to ask questions – it is up to the citizen to refuse to speak to the police
The Fourth Amendment is not “implicated” in what is called a “consensual encounter” between police and individuals. Even if the police have no basis for suspecting a particular individual, they may pose questions to a person, ask them for identification, and ask them for consent to search,… ” provided a reasonable person would feel free to decline the request or otherwise terminate the encounter.”
Thus – the police can approach an individual on the street and ask that person questions, as long as there is no official actions to stop them or to compel them to respond.
The police can look into an open window under some circumstances – such as a car or store window – they can – for example – shine a flashlight into a car from the outside.
The Fourth Amendment applies when:
1) the intrusion is the product of government action;
2) the intrusion breaches society’s reasonable expectation of privacy;
3) the intrusion breaches the legitimate expectations of privacy of the individual in question.
Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880 (1968) “A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause for an arrest.”
The Terry Stop standard was premised on policy grounds – that is the governmental interest in preventing crime, as balanced against the somewhat minor intrusion associated with a stop (as opposed to an arrest) and a frisk (as opposed to a full search). This level of constitutional “intrusion” justified such conduct based on a lesser showing of suspicion than full “probable cause.”
Thus, as long as the police have a reasonable articulable suspicion that criminal activity has occurred, the police may temporarily detain a person. In addition – if the police have a reasonable articulable suspicion to believe the subject is armed and dangerous, the police may conduct a frisk for weapons. The action must be justified at the inception of the detention and also must be reasonably related in scope to the circumstances which justified the interference in the first place.
A seizure of a person occurs when “under all the circumstances a reasonable person would have believed that he was not free to leave or to decline the officer’s request and terminate the encounter.”
“A person is “seized” by the police and therefore entitled to challenge the government’s action under the Fourth Amendment when the officer, “by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied.”
If your car is stopped by the police – for the duration of a car stop, law enforcement has effectively seized everyone in the vehicle.
The U.S. Supreme Court has provides 4 examples of instances that indicate a seizure has taken place even where the “seized person” may no attempt to leave:
The threatening presence of several officers.
The display of a weapon by an officer.
Some physical touching of the person of the citizen.
The use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
There is a “seizure of property” when there is some meaningful interference with an individual’s possessory interests – that is – ownership interests in that property.
Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022 (1971) If the police are already lawfully in an areas, such as a house or a car, items which are immediately apparent evidence of a crime or contraband may be seized without any further justification.
Were the police in a place they had a right to be when they seized the contraband from your person or presence? was this a Lawful intrusion?
For a search to comply with the Fourth Amendment, police must obtain a warrant unless the situation falls within a well-delineated exception to the warrant requirement: 1) search incident to arrest; 2) the automobile exception; 3) exigent circumstances; 4) stop and frisk; 5) administrative, regulatory and inventory searches; 6) consent searches; and 7) the plain view doctrine.
Contact A Denver, Colorado Defense Lawyer.
If you have been charged with false imprisonment, you need an attorney who will explain the potential consequences, identify defense strategies, and aggressively protect your rights in court if necessary. To talk to H. Michael – a Denver, Colorado false imprisonment defense attorney, call 303-627-7777 Business Hours or 720-220-2277 After Hours or contact us by e-mail or using the form on this page – Call to ask the question: Were Your Rights Violated By The Police?