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Under Colorado Law – Can The Police Just Enter My Home Without A Warrant? One of the most frightening confrontations with the police other than being stopped in your vehicle is when the police knock on your front door and demand entry. This article addresses your rights in that scenario and the state of the law in Colorado at this time.
Under our system of laws, one’s home has the highest degree of protection under our Constitution.
This protection is found in the Fourth Amendment which protects you against governmental intrusion.
The Fourth Amendment to the United States Constitution and Article II, section 7, of the Colorado Constitution guarantee every citizen the right to be free from “unreasonable searches.”
The foundation of that protection – is the “touchstone of the Fourth Amendment” – specific the reasonableness of the search.
In every warrantless entry into a person’s home there is a presumption that the entry was unreasonable. The burden to “overcome that presumption” is on the State. To overcome that presumption of illegality, the State must fit the specifiic search into one several rather narrowly defined exceptions to the warrant requirement.
Therefore the warrantless entry into a person’s home to conduct a search is presumptively unreasonable unless both:
- Probable cause and
- Exigent circumstances exist.
….at the time of the search.
When the police seek to enter a home without a warrant, the government bears the burden of proving that sufficient exigency existed at the time of the search to justify the warrantless entry and search.
The Courts apply a standard analysis to the State’s claim that exigent circumstances excused – in a given case – a police officers’ failure to obtain a warrant
The analysis of an entry of a home without a warrant as noted is presumptively invalid, but there are three MAIN exceptions to the warrant requirement:
(2) probable cause and exigent circumstances, or
(3) an emergency threatening the life and safety of another.
Examples of exigent circumstances are when:
(1) the police are engaged in a bona fide 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, or
(4) there is a threat to the life of the officer or to the lives of other responders present.
If the police have an arrest warrant they are authorized to enter the home of the person named in the warrant but cannot enter a third party’s home to arrest that person.
Voluntary consent of an individual possessing authority is sufficient. “Apparent authority,” where the person objectively appears to have authority, may also be sufficient.
The police may enter a home to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. There must be an objectively reasonable basis for believing that the person inside the house is in need of immediate aid – this cannot be a ruse or trick to gain entry. There must exist at the time a reasonable basis approximating probable cause connecting the emergency to the area to be searched.
A reasonable basis requires more than a theoretical possibility that another’s life or safety is in danger
An officer’s primary purpose must be to render emergency assistance, not to search for evidence. Thus, an emergency search must be strictly limited by the exigency that created the emergency; the emergency cannot support a general exploratory search.
Commony known as the “Officer Safety Exception” – the police are permitted to enter without delay in the course of an investigation if to delay further – “would gravely endanger their lives or the lives of others.”
If the State can establish that there would be an imminent destruction of evidence – this may be justification for an otherwise unlawful – warrantless search.
If the police are pursuing a suspect from a “just-committed crime” which is very serious and involved the infliction or threatened infliction of death or serious bodily injury – they may be allowed to enter a home to search for the suspect in a private residence into which he flees.
Preventing The Escape of Detainee or Arrestee,
Preventing Substantial Property Damage,
And Probation or Parole Searches.
In Colorado it is constitutional for police officers to knock at the entrance to a residence and seek permission to enter for the purpose of their investigation. If the owner – occupant validly consents, the officers may enter unless, and until the owner or occupant revokes that consent – which they have a right to do at ANY time.
The knock and talk procedure is not violative of the Fourth Amendment.
If the police – in an investigation – target you as a person of interest – a suspect or even just a possible witness – they may come to your home. You will not know which of those descriptions fit your alleged involvement. Here’s the deal – letting the police in – may be the difference between an arrest and charges and the inability of the police to put a case together – arrest and charge you.
When the police are at your door – a naïve friend, a family member, or even a roommate may inadvertently and mistakenly invite then into your home. This article is intended to help you understand how to make them, and you, aware of your rights you have to privacy in your own home.
In a nutshell – refuse the police entry without a search warrant and then call any 24 hour Colorado Criminal Defense Lawyer – such as my firm.
DO NOT EVER OPEN YOUR DOOR!
If the police have a search warrant – they can tell you that through the door. (See Below) Do not open the door – make them break it down. If you open the door – they may suddenly “smell” marijuana – hear someone allegedly calling for help – or see something in “plain view” in your living room… then they will come in with or without your consent.
You have the right to decide who comes into your home. You have no obligation to let the police into your home. Do not be intimidated by their demands or their banging. If they do not have a warrant – no search!
Known as the “Castle Doctrine” – the United States Supreme Court has always given the home the maximum protection under the Constitution, even when the police have “PC” (probable cause)
The Supreme Court has held that the home is entitled to maximum search protection. Even if to believe something illegal may be occurring in your home – they STILL need a search warrant to gain entry. That search warrant must be signed – as written into the 4th Amendment – by a judge before they can legally enter and search your home.
If you CONSENT to a search – you are giving up those Fourth Amendment protections.
What You Might Want To Do:
Always call out through your door before before opening it. If you have a peephole – or a window in the door – next to the door or near the door – use it. Ask – the person “Who Are You?” and “What do you want?”
Doing Nothing At All
When the police come to your door – you can also DO NOTHING – just pretend your not home – if they do not have a warrant – they WILL leave.
If You Need To Determine the Reason Why The Police Are There – Use Your “Outside Voice”
Ask the police – LOUDLY – through the door: “How can I help you?”
If you are uncertain why they are there – tell the officer – “Officer, I am sorry I will not let you inside my home without a search warrant.”
Then call your lawyer before speaking to police again.
A common trick the police use is the so called “Knock and Talk” or “Tap and Rap”, on your front door.
Either version of the “good cop – bad cop” routine may be used by the police in a Knock and Talk. They may start out as polite. If that does not work – expect them to use every manner of retaliation – primary among these is leaving and then coming back with a search warrant.
Ignore the threats.
If they could have obtained a warrant – they would have.
This is a very different situation – if the police say they have a warrant – have them slip it under the door – (if they agree to that). They could also show it to you in a nearby window – through a peephole or some other way.. Don’t push this issue – or their patience. If they tell you they have a search warrant – believe them – it would be exceedingly rare for the police to lie about this – and if they have lied – the search would be illegal in any case and any evidence would therefore be suppressed.
If you decide to open the door – under either circumstance above – step outside and then close the door behind you immediately. In this situation – you can look at the warrant or – if there is no warrant – find out WHY they are there.. YOU ask the questions – you do NOT answer questions.
Then – after you are satisfied under either situation above- stop talking except to demand a lawyer – this is called “lawyering up.”
Again call your lawyer as soon as it is humanly possible.
If you are allowed – (and don’t push this point with the police – you have no right watch a search) during the search – take notes – “video” the search and try to identify the participants for later disclosure to your lawyer.
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The reader is admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.
If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.
Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at email@example.com – A Denver Colorado 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. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 30 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Under Colorado Law – Can The Police Just Enter My Home Without A Warrant?