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A Denver Colorado Criminal Lawyer Asks – When Can The Police Enter My Home To Arrest Me? – The most intelligent and criminal defense law based response to the police arriving at your home to question and perhaps to arrest you is NOT to answer the door. But if you do answer the door – attempt to make clear that they will not enter your home without either an arrest or a search warrant….period.
Then call your 24-7 lawyer.
This article discusses the different ways Colorado law enforcement may try to – or actually may legally enter your home.
In Colorado the legal standard for the entry of law enforcement into your home is as follows:
If the police have an arrest warrant for a suspect founded on probable cause – that warrant carries with it the limited authority to enter the home in which the suspect lives WHEN there is reason to believe the suspect is within the home.
Colorado follows the majority of States that abide by the “Payton Rule:” The rule is this: the police may enter a residence to execute an arrest warrant only when they have reasonable belief that the subject of the arrest warrant both lives at the residence, and is within the residence at the time of entry.
Thus the Payton rule requires an arrest warrant and that two additional prongs be met:
First – The police must have reason to believe that the suspect lives in the residence,
Second – The suspect is within the residence at the time of entry.
The two pronged analysis focuses on the reasonableness of police entry at the time of the attempted entry not later in time. The police must have “a reasonable belief that the suspect lives at the residence at the time of entry (and is present at that time) and cannot rely on facts that become apparent after the entry to justify their incursion into a private residence.”
If the police cannot meet BOTH PRONGS of the Payton standard – then may still enter the home if they have Exigent Circumstances. In other words – the Payton “reasonable belief” standard applies unless entry by the police is otherwise allowed under exigent circumstances.
Understanding an exception to a rule is sometimes difficult. The police may justify an entry into a residence to make an arrest and still not violate the Payton rule if certain conditions are met.
It is a basic constitutional rule of law that a warrantless search or seizure is unreasonable and thereby unconstitutional unless it is justified by an established exception to the Warrant Clause of the Fourth Amendment.
IF the police have an arrest warrant for a suspect – then probable cause is no longer an issue and the foundation for a Payton entry has been met. But IF they do not have reasonable evidence that a suspect is IN his or her home – – then they need an exception to the Payton Rule to gain entry – that is where the doctrine of exigent circumstances comes in.
Under Colorado criminal law – there are three basic situations where “exigent circumstances” justify a warrantless entry and search:
(1) the police are engaged in a “hot pursuit” of a fleeing suspect;
(2) there is a risk of the immediate destruction of evidence; or
(3) there is a colorable claim of emergency threatening the life or safety of another.
How far the police can follow these exceptions when they gain entrance into the home is called the “scope” of the intrusion.” The scope of the intrusion is determined by the kind of exigency justifying the initiation of the warrantless entry.
The police may meet the Payton Rule if they can establish that there was a risk of immediate destruction of evidence. To do this the police must have an articulable basis upon which to justify a reasonable belief that evidence is about to be destroyed.
The question here is whether:
1. There “is a substantial likelihood that contraband or evidence might be removed or destroyed before a search warrant could be obtained.”
2. The perceived danger must be real and immediate, and the mere fact that the evidence is of a type that can be easily destroyed does not, in itself, constitute an exigent circumstance.
Another exception justifying entry into a home is based on the safety of the officers and other occupants present at the time of the execution of an arrest warrant.
One example here is where the police have reliable – not pretext – information that the suspect was last seen armed and with a possible weapon and refused to surrender when ordered to do so. Under these circumstances the police would be justified in making entry into a home to make an arrest on less than Payton type evidence.
A fourth kind of category that is somewhat new to Colorado – it is known as “the emergency aid” exception.
To establish that there is a “colorable claim” of an emergency threatening the life or safety of another, there must be a showing of immediate crisis inside the home and the probability that police assistance will be helpful in alleviating that crisis.
The facts here usually entail the police responding to an ongoing emergency inside a residence.
Unfortunately the concept of Exigent Circumstances under Colorado Criminal Law – is a fluid concept. In addition to the categories of exigent circumstances described above, the Courts of Appeal in Colorado have recognized a set of factors that are analyzed to determine whether exigent circumstances are present in any given case.
The Dorman factors for determining whether exigent circumstances exist – are:
(1) whether a grave offense is involved, particularly a crime of violence;
(2) whether the suspect is reasonably believed to be armed;
(3) whether there exists a clear showing of probable cause to believe that the suspect committed the crime;
(4) whether there is a strong reason to believe the suspect is in the premises being entered;
(5) the likelihood that the suspect will escape if not swiftly apprehended;
(6) whether the entry is made peaceably…and
(7) whether the entry is made at night.
IF the initial police entry into a home can be justified by exigent circumstances or compliance with the Payton Rule – THEN any evidence of a crime or crimes seen in plain view once inside the home – such as guns, drugs or drug paraphernalia can be legally seized pursuant to the plain view doctrine.
To understand these and other warrant issues in Colorado – please follow this LINK
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Drug Crimes Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.
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