CODE OF CRIMINAL PROCEDURE
Editor's note: Articles 1 to 13 of this title (excluding articles 2.5, 2.7, 8.5, 11.3, 11.5, 11.7, 11.8, and 11.9) were numbered as articles 1 to 13 of chapter 39, C.R.S. 1963. The provisions of those articles were repealed and reenacted in 1972, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to those articles prior to 1972, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of those articles, see the comparative tables located in the back of the index.
ARTICLE 1 GENERAL PROVISIONS
Law reviews: For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with criminal procedure, see 61 Den. L.J. 281 (1984); for article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with criminal procedure, see 62 Den. U.L. Rev. 159 (1985); for a discussion of Tenth Circuit decisions dealing with criminal procedure, see 66 Den. U. L. Rev. 717 (1989); for a discussion of Tenth Circuit decisions dealing with criminal procedure, see 67 Den. U. L. Rev. 701 (1990).
Section
16-1-101. Short title.
- Articles 1 to 13 of this title shall be known and may be cited as the "Colorado Code of Criminal Procedure". Within those articles, the "Colorado Code of Criminal Procedure" is sometimes referred to as "this code".
- The portion of any section, subsection, paragraph, or subparagraph contained in this code which precedes a list of examples, requirements, conditions, or other items may be referred to and cited as the "introductory portion" of such section, subsection, paragraph, or subparagraph.
Source: L. 72: R&RE, p. 190, § 1. C.R.S. 1963: § 39-1-101.
16-1-102. Scope.
The provisions of this code are intended to create, define, and protect rights, duties, and obligations as distinguished from matters wholly procedural. Except as specifically set forth in this code, the provisions of this code are not applicable to proceedings under the "Colorado Children's Code" or to violations of municipal charters or municipal ordinances.
Source: L. 72: R&RE, p. 190, § 1. C.R.S. 1963: § 39-1-102.
Cross references: For the "Colorado Children's Code", see title 19.
ANNOTATION
Law reviews. For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with criminal procedure, see 61 Den. L. J. 281 (1984). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with criminal procedure, see 62 Den. U. L. Rev. 159 (1985).
No sentencing of children. There is no express authority in the Colorado Children's Code for the imposition of a jail sentence on a delinquent child under the age of 18 years, either as part of a final disposition or as a condition of probation. People in Interest of A.F., 37 Colo. App. 185, 546 P.2d 972 (1975), aff'd, 192 Colo. 207 , 557 P.2d 418 (1976).
The provisions of this code do not apply to the Colorado Children's Code unless expressly indicated in this code. This section does not conflict with § 19-2-802. In re People in Interest of A.A., 2013 CO 65, 312 P.3d 1170.
Applied in People v. District Court, 198 Colo. 284 , 599 P.2d 260 (1979); People v. Wade, 757 P.2d 1074 ( Colo. 1988 ).
16-1-103. Purpose.
This code is intended to provide for the just determination of every criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration, the elimination of unjustifiable expense and delay, the effective apprehension and trial of persons accused of crime, the just determination of every criminal proceeding by a fair and impartial trial, an adequate review, and the preservation of the public welfare and the fundamental human rights of individuals.
Source: L. 72: R&RE, p. 191, § 1. C.R.S. 1963: § 39-1-103.
16-1-104. Definitions.
- The following definitions in this section are applicable generally in this code. Other terms which need definition, but which are used only in a limited number of sections of this code are defined in the particular section or article in which the terms appear. Definitions set forth in any section of this code are applicable whenever the same term is used in the same sense in another section of this code, unless the definition is specifically limited or the context indicates that it is inapplicable.
- "Arraignment" means the formal act of calling the defendant into open court, informing him of the offense with which he is charged, and the entry of a plea to the charge.
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"Bail" means a security, which may include a bond with or without monetary conditions, required by a court for the release of a person in custody set to provide reasonable assurance of public safety and court appearance.
(3.5) "Bail bonding agent" or "bonding agent" means an individual who is in the business of writing appearance bonds and who is subject to regulation by the division of insurance in the department of regulatory agencies, including an insurance producer, cash-bonding agent, or professional cash-bail agent.
- "Bind over" means to require a defendant, following a preliminary hearing, to appear and answer in a court having jurisdiction to try the defendant for the crime with which he is charged.
- "Bond" means a bail bond which is an undertaking, with or without sureties or security, entered into by a person in custody by which he binds himself to comply with the conditions of the undertaking and in default of such compliance to pay the amount of bail or other sum fixed, if any, in the bond.
- "Charge" means a formal written statement presented to a court accusing a person of the commission of a crime. The charge may be made by complaint, information, or indictment.
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"Complaint" means a written statement charging the commission of a crime by an alleged offender, filed in the county court.
(7.5) "Correctional facility" means any facility under the supervision of the department of corrections in which persons are or may be lawfully held in custody as a result of conviction of a crime.
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"Court of record" means any court except a municipal court unless otherwise defined by a particular section.
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- (8.5) (a) (I) "Crime of violence" means a crime in which the defendant used, or possessed and threatened the use of, a deadly weapon during the commission or attempted commission of any crime committed against an elderly person or a person with a disability or a crime of murder, first or second degree assault, kidnapping, sexual assault, robbery, first degree arson, first or second degree burglary, escape, or criminal extortion, or during the immediate flight therefrom, or the defendant caused serious bodily injury or death to any person, other than himself or herself or another participant, during the commission or attempted commission of any such felony or during the immediate flight therefrom.
- "Crime of violence" also means any unlawful sexual offense in which the defendant caused bodily injury to the victim or in which the defendant used threat, intimidation, or force against the victim. For purposes of this subparagraph (II), "unlawful sexual offense" shall have the same meaning as set forth in section 18-3-411 (1), C.R.S., and "bodily injury" shall have the same meaning as set forth in section 18-1-901 (3)(c), C.R.S.
- The provisions of subparagraph (II) of this paragraph (a) shall apply only to felony unlawful sexual offenses.
- As used in this subsection (8.5), "elderly person" means a person who is sixty years of age or older. "Person with a disability" means a person who is disabled because of the loss of or permanent loss of use of a hand or foot or because of blindness or the permanent impairment of vision in both eyes to such a degree as to constitute virtual blindness.
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- "Custody" means the restraint of a person's freedom in any significant way.
- "Felony complaint" means a written statement of the essential facts constituting the offense charged, signed by the prosecutor, and filed in the court having jurisdiction over the offense charged.
- "Indictment" means a written statement, presented by a grand jury to the district court, which charges the commission of a crime by an alleged offender.
- "Information" means a written statement signed by a district attorney presented to the district court, which charges the commission of a crime by an alleged offender.
- "Personal recognizance" means a bond secured only by the personal obligation of the person giving the bond.
- "Preliminary hearing" means a hearing on a complaint filed in the county court or an information filed in the district court, to determine if there is probable cause to believe that an offense has been committed and that the person charged committed it.
- "Prosecuting attorney" means any attorney who is authorized to appear for and on behalf of the state of Colorado in a criminal case.
- A "search warrant" is a written order made by a judge of a court of record commanding a peace officer to search the person, premises, place, property, or thing described in the search warrant and to seize property described or identified therein.
- "Summons" means a written order or notice directing that a person appear before a designated court at a stated time and place and answer to a charge against him.
- A "warrant" is a written order issued by a judge of a court of record directed to any peace officer commanding the arrest of the person named or described in the order.
Source: L. 72: R&RE, p. 191, § 1. C.R.S. 1963: § 39-1-105. L. 79: (7.5) added, p. 678, § 2, effective July 1. L. 87: (8.5) added, p. 657, § 15, effective July 1. L. 93: (8.5)(a)(I) and (8.5)(b) amended, p. 1633, § 14, effective July 1. L. 2012: (3.5) added, (HB 12-1266), ch. 280, p. 1525, § 42, effective July 1. L. 2013: (3) and (5) amended, (HB 13-1236), ch. 202, p. 820, § 1, effective May 11; (10) amended, (SB 13-229), ch. 272, p. 1426, § 2, effective July 1.
Cross references: For mandatory sentences for crimes of violence, see § 18-1.3-406.
ANNOTATION
Law reviews. For comment, "Bail Reform in Colorado: A Presumption of Release", see 88 U. Colo. L. Rev. 1067 (2017).
The definition of "custody" found in this section does not apply to the offense of escape under § 18-8-208. People v. Thornton, 929 P.2d 729 (Colo. 1996).
Defendant was already both in custody and under arrest when he attacked guards at his sentencing on another unrelated charge. People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).
It is unnecessary at a preliminary hearing for the prosecution to show beyond a reasonable doubt that the defendant committed the crime, or even the probability of the defendant's conviction. Instead, the trial court is obligated at the preliminary hearing to view the evidence in the light most favorable to the prosecution and the prosecution therefore is accorded latitude at the preliminary hearing to establish probable cause that the defendant committed the crime charged. People v. District Ct., 17th Jud. Dist., 926 P.2d 567 (Colo. 1996).
The prosecution at a preliminary hearing is not required to produce evidence sufficient to support a conviction of the person charged and the trial court is to view the evidence at the preliminary hearing in the light most favorable to the prosecution. People v. District Ct. of 11th Jud. Dist., 964 P.2d 498 (Colo. 1998).
A preliminary hearing may be had with regard to offenses only. Brown v. District Court, 189 Colo. 1481 , 569 P.2d 1390 (1977).
Applied in People v. Abbott, 638 P.2d 781 ( Colo. 1981 ); People v. Lucero, 654 P.2d 835 ( Colo. 1982 ).
16-1-105. Interpretation of words and phrases.
- In interpreting this code, such words and phrases as are defined in this article shall have the meanings indicated by their definitions, unless a particular context clearly requires a different meaning.
- Words or phrases not defined in this code but which are defined in the "Colorado Criminal Code" (title 18, C.R.S.) shall have the meanings given therein except when a particular context clearly requires a different meaning.
- Words and phrases used in this code and not expressly defined shall be construed according to the rules governing the construction of statutes of this state.
Source: L. 72: R&RE, p. 191, § 1. C.R.S. 1963: § 39-1-104.
Cross references: For statutory provisions concerning the construction of statutes, see article 4 of title 2.
16-1-106. Electronic transmission of documents required for arrest and search warrants under code authorized - definitions.
- Whenever a written application for a warrant is required, it shall include both a written application and a sworn or affirmed affidavit. A peace officer may submit an application and affidavit for a warrant and the court may issue the warrant by an electronically or electromagnetically transmitted facsimile or by an electronic transfer that may include an electronic signature. Whenever a sworn or affirmed affidavit is required, the court may orally administer the oath or affirmation to the affiant and the affiant may then electronically transmit back to the court a written affidavit of the oath or affirmation.
- Procedures governing application for and issuance of arrest or search warrants consistent with this section may be established by rule of the Colorado supreme court, which rule should require the court administrator to establish paper quality and durability standards for warrants issued pursuant to this section.
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- Any electronically or electromagnetically transmitted facsimile of a document authorized to be made by this section shall be treated as an original document.
- A warrant, signed affidavit, and accompanying documents may be transmitted by electronic facsimile transmission or by electronic transfer with electronic signatures to the judge, who may act upon the transmitted documents as if they were originals. A warrant affidavit may be sworn to or affirmed by administration of the oath over the telephone by the judge. The affidavit with electronic signature received by the judge or magistrate and the warrant approved by the judge or magistrate, signed with electronic signature, shall be deemed originals. The judge or magistrate shall facilitate the filing of the original affidavit and original warrant with the clerk of the court and shall take reasonable steps to prevent tampering with the affidavit and warrant. The issuing judge or magistrate shall also forward a copy of the warrant and affidavit, with electronic signatures, to the affiant. This subsection (3) does not authorize the court to issue warrants without having in its possession either a faxed copy of the signed affidavit and warrant or an electronic copy of the affidavit and warrant with electronic signatures.
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For purposes of this section:
- "Digital signature" means a document hash-encrypted with a private cryptographic key that can be used to authenticate the identity of the sender of a message or the signer of a document and can ensure that the original content of the message or document that has been sent is unchanged.
- "Digitized signature" means an electronic representation of an actual handwritten signature in which the image of a handwritten signature is created and saved using various methods, such as using a signature pad, scanning a handwritten signature, or digital photography. A digitized signature may be captured at the time the user applies the signature, or a previously saved image may be applied.
- "Electronic signature" means an electronic sound, symbol, or process attached to or logically associated with a document and executed or adopted by a person with the intent to sign the document. An electronic signature may include, but is not limited to, a digitized signature or a digital signature.
Source: L. 92: Entire section added, p. 444, § 1, effective April 16. L. 2007: (1) and (3) amended and (4) added, p. 22, § 1, effective March 1. L. 2011: (3)(b) amended, (HB 11-1018), ch. 18, p. 46, § 2, effective March 11. L. 2012: (3)(b) amended, (HB 12-1095), ch. 49, p. 180, § 1, effective August 8.
16-1-107. Integrated court online network - municipal court records - legislative declaration.
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The general assembly hereby finds and declares that:
- The report on the pilot project on criminal background checks for child care providers, prepared for the state department of human services, was presented to the general assembly in August of 2000;
- Said report contained several recommendations for the improvement of the process of obtaining accurate and complete criminal history records for child care workers and volunteers;
- Some of those recommendations involved the records contained in the integrated Colorado online network (ICON) of the state judicial department and the ability to identify case dispositions;
- Other recommendations involved the work of the courts and the state judicial department in assisting in the completion and implementation of the integrated criminal justice information system program established by article 20.5 of this title.
- The general assembly further finds and declares that, in order to assure that criminal background checks for child care workers are accurate and complete, it is critical that the criminal justice agencies participating in the integrated criminal justice information system program established by article 20.5 of this title and political subdivisions continue to work with each other to complete and implement such program in a timely manner and consider the integration of municipal records, including the county court records of the city and county of Denver, into such program.
Source: L. 2001: Entire section added, p. 612, § 1, effective May 30.
16-1-108. Admission of records in court.
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In a trial or hearing, all official records and documents of the state of Colorado, as defined in section 42-2-121 (2)(c), C.R.S., shall:
- Be admissible in all county and district courts within the state of Colorado without further foundation;
- Be statutory exceptions to rule 802 of the Colorado rules of evidence; and
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Constitute prima facie proof of the information contained in the record or document if the record or document is accompanied by a certificate stating that the executive director of the department of revenue, or the executive director's appointee, has custody of the record or document and accompanied by and attached to a cover page that:
- Specifies the number of pages, exclusive of the cover page, that constitute the record or document being submitted; and
- Bears the signature of the executive director of the department of revenue, or the executive director's appointee, attesting to the authenticity of the record or document; and
- Bears the official seal of the department of revenue or a stamped or printed facsimile of the seal.
- As used in subsection (1) of this section, "official records and documents" includes any mechanically or electronically reproduced copy, photograph, or printout of a record or document or any portion of a record or document filed with, maintained by, or prepared by the department of revenue pursuant to section 42-2-121 (2)(c), C.R.S. The department of revenue may also permit the electronic transmission of information for direct recording in the department of revenue's records and systems. Information transmitted by an electronic means that is approved by the department of revenue constitutes an official record for the purposes of this section, regardless of whether an original source document for the information exists or ever existed. The certificate and cover page and its contents required by subsection (1) of this section may be electronically produced and transmitted. An electronic reproduction of the certificate and cover page, including an electronic signature of the executive director of the department of revenue or of the executive director's appointee and an electronic reproduction of the official seal of the department of revenue, shall be admissible in court as set forth in subsection (1) of this section.
- A record or document shall not be required to include every page of a record or document filed with, maintained by, or prepared by the department of revenue pursuant to this section to be an official record or document, if the official record or document includes all of those portions of the record or document relevant to the trial or hearing for which it is prepared. There shall be a presumption that the official record or document contains all information that is relevant to the trial or hearing.
Source: L. 2004: Entire section added, p. 1379, § 6, effective July 1. L. 2005: IP(1) and (2) amended, p. 765, § 24, effective June 1.
16-1-109. Eyewitness identification procedures - legislative declaration - definitions - policies and procedures - training - admissibility.
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The general assembly finds and declares that:
- Over the past forty years, a large body of peer-reviewed scientific research and practice has demonstrated that simple systematic changes in the administration of eyewitness identification procedures by all law enforcement agencies can greatly improve the accuracy of those identifications and strengthen public safety while protecting the innocent;
- The integrity of Colorado's criminal justice system benefits from adherence to peer-reviewed research-based practices in the investigation of criminal activity; and
- Colorado will benefit from the development and use of written law enforcement policies that are derived from peer-reviewed scientific research and research-based practices, which will ultimately improve the accuracy of eyewitness identification and strengthen the criminal justice system in Colorado.
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As used in this section, unless the context otherwise requires:
- "Blind" means the administrator of a live lineup, photo array, or showup does not know the identity of the suspect.
- "Blinded" means the administrator of a live lineup, photo array, or showup may know who the suspect is but does not know in which position the suspect is placed in the photo array when it is viewed by the eyewitness.
- "Eyewitness" means a person who observed another person at or near the scene of an offense.
- "Filler" means either a person or a photograph of a person who is not suspected of the offense in question and is included in an identification procedure.
- "Live lineup" means an identification procedure in which a group of persons, including the suspected perpetrator of an offense and other persons who are not suspected of the offense, is displayed to an eyewitness for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.
- "Peace officers standards and training board" or "P.O.S.T. board" means the board created in section 24-31-302, C.R.S., for the certification of peace officers in Colorado.
- "Photo array" means an identification procedure in which an array of photographs, including a photograph of the suspected perpetrator of an offense and additional photographs of other persons who are not suspected of the offense, is displayed to an eyewitness either in hard copy form or via electronic means for the purpose of determining whether the eyewitness identifies the suspect as the perpetrator.
- "Showup" means an identification procedure in which an eyewitness is presented with a single suspect in person for the purpose of determining whether the eyewitness identifies the individual as the perpetrator.
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On or before July 1, 2016, any Colorado law enforcement agency charged with enforcing the criminal laws of Colorado and that, as part of any criminal investigation, uses or might use any eyewitness identification procedure shall adopt written policies and procedures concerning law enforcement-conducted eyewitness identifications. The policies and procedures adopted and implemented by a law enforcement agency must be consistent with eyewitness identification procedures of nationally recognized peer-reviewed research or the policies and procedures developed, agreed upon, and recommended by the Colorado attorney general's office and the Colorado district attorneys' council. The policies and procedures must include, but need not be limited to, the following:
- Protocols guiding the use of a showup;
- Protocols guiding the recommended use of a blind administration of both photo arrays and live lineups or the recommended use of a blinded administration of the identification process when circumstances prevent the use of a blind administration;
- The development of a set of easily understood instructions for eyewitnesses that, at a minimum, advise the eyewitness that the alleged perpetrator may or may not be present in the photo array or live lineup and that the investigation will continue whether or not the eyewitness identifies anyone as the alleged perpetrator in the photo array or live lineup;
- Instructions to the law enforcement agency regarding the appropriate choice and use of fillers in compiling a live lineup or photo array, including ensuring that fillers match the original description of the perpetrator; and
- Protocols regarding the documentation of the eyewitness' level of confidence as elicited at the time he or she first identifies an alleged perpetrator or other person and memorialized verbatim in writing.
- On or before July 1, 2016, all Colorado law enforcement agencies that conduct eyewitness identifications shall adopt and implement the written policies and procedures required by paragraph (a) of this subsection (3). If a law enforcement agency does not complete or adopt its own written policies and procedures relating to eyewitness identifications, the law enforcement agency must, on or before July 1, 2016, adopt and implement the model policies and procedures as developed and approved in 2015 by the Colorado attorney general and the Colorado district attorneys' council.
- Local law enforcement policies and procedures relating to eyewitness identification are public documents. All such policies and procedures must be available, without cost, to the public upon request pursuant to the provisions of this section.
- Subject to available resources, law enforcement shall create, conduct, or facilitate professional training programs for law enforcement officers and other relevant personnel on methods and technical aspects of eyewitness identification policies and procedures. While these training programs shall be approved by the P.O.S.T. board, any programs may be created, provided, and conducted by any law enforcement agency, the office of the attorney general, the Colorado district attorneys' council, or any other P.O.S.T-approved training entity.
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On or before July 1, 2016, any Colorado law enforcement agency charged with enforcing the criminal laws of Colorado and that, as part of any criminal investigation, uses or might use any eyewitness identification procedure shall adopt written policies and procedures concerning law enforcement-conducted eyewitness identifications. The policies and procedures adopted and implemented by a law enforcement agency must be consistent with eyewitness identification procedures of nationally recognized peer-reviewed research or the policies and procedures developed, agreed upon, and recommended by the Colorado attorney general's office and the Colorado district attorneys' council. The policies and procedures must include, but need not be limited to, the following:
- Policies and procedures adopted and implemented by a law enforcement agency pursuant to this section shall be reviewed by the agency at least every five years to ensure consistency with nationally recognized peer-reviewed research.
- Compliance or failure to comply with any of the requirements of this section is considered relevant evidence in any case involving eyewitness identification, as long as such evidence is otherwise admissible.
Source: L. 2015: Entire section added, (SB 15-058), ch. 110, p. 321, § 1, effective July 1.
ARTICLE 2 COUNTY COURT PROVISIONS
Editor's note: This article was repealed and reenacted in 1972. For historical information concerning the repeal and reenactment, see the editor's note before the article 1 heading.
Section
PART 1 SIMPLIFIED PROCEDURES IN THE COUNTY COURT
16-2-101. Misdemeanor and petty offense procedures - statement of purpose.
In order to provide a simple and expeditious method for the prosecution of misdemeanors and petty offenses in county courts but one which also guarantees to the defendant his constitutional rights, the general assembly does hereby establish a simplified criminal procedure for misdemeanors and petty offenses to be used under the circumstances set forth in this code in sections 16-2-102 to 16-2-114.
Source: L. 72: R&RE, p. 193, § 1. C.R.S. 1963: § 39-2-101.
16-2-102. Definitions.
As used in sections 16-2-104 to 16-2-114, "summons and complaint" means a document combining the functions of both a summons and a complaint.
Source: L. 72: R&RE, p. 193, § 1. C.R.S. 1963: § 39-2-102.
16-2-103. Application of article.
- Sections 16-2-102 to 16-2-114 apply only to the prosecution of misdemeanors and petty offenses in county courts under simplified procedure and have no application to misdemeanors or petty offenses prosecuted in other courts or to felonies.
- Any matter arising in a proceeding under simplified procedure not specifically covered by sections 16-2-102 to 16-2-114 shall be subject to the other provisions of this code and any other applicable statute or court rule or, in the absence of such statute or court rule, to the application of common law principles. In any case due regard shall be had for speed and simplicity.
Source: L. 72: R&RE, p. 193, § 1. C.R.S. 1963: § 39-2-103.
16-2-104. Issuance of summons and complaint.
A summons and complaint may be issued by any peace officer for an offense constituting a misdemeanor or a petty offense committed in his presence or, if not committed in his presence, which he has probable cause to believe was committed and probable cause to believe was committed by the person charged. Except for penalty assessment notices, which shall be handled according to the procedures set forth in section 16-2-201, a copy of a summons and complaint so issued shall be filed immediately with the county court before which appearance is required, and a second copy shall be given to the district attorney or deputy district attorney for the county.
Source: L. 72: R&RE, p. 193, § 1. C.R.S. 1963: § 39-2-104. L. 73: p. 498, § 1.
Cross references: For the description of peace officer as it applies to the "Colorado Criminal Code", see § 16-2.5-101.
ANNOTATION
Annotator's note. Since § 16-2-104 is similar to repealed § 37-17-5, C.R.S. 1963, a relevant case construing that provision has been included in the annotations to this section.
The contents of a summons and complaint used in the simplified criminal procedure are not found in this section, which enumerates only those circumstances under which the form of summons and complaint may be used, but rather in section 16-2-106 . Francis v. County Court, 175 Colo. 308 , 487 P.2d 375 (1971).
It is sufficient that the summons allege that the complainant "knows or believes" rather than "knows or has reason to believe" accused committed the offense charged. Francis v. County Court, 175 Colo. 308 , 487 P.2d 375 (1971).
Applied in Jeffrey v. District Court, 626 P.2d 631 ( Colo. 1981 ); Corr v. District Court, 661 P.2d 668 ( Colo. 1983 ).
16-2-105. Issuance of summons after complaint. (Repealed)
Source: L. 72: R&RE, p. 193, § 1. C.R.S. 1963: § 39-2-105. L. 98: Entire section repealed, p. 946, § 2, effective May 27.
16-2-106. Content of summons and complaint.
A summons and complaint issued by a peace officer shall contain the name of the defendant, shall identify the offense charged, including a citation of the statute alleged to have been violated, shall contain a brief statement or description of the offense charged, including the date and approximate location thereof, and shall direct the defendant to appear before a specified county court at a stated date, time, and place.
Source: L. 72: R&RE, p. 193, § 1. C.R.S. 1963: § 39-2-106.
ANNOTATION
Annotator's note. Since § 16-2-106 is similar to repealed § 37-17-7, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
The contents of a summons and complaint are those things enumerated in this section, nothing more, nothing less. Francis v. County Court, 175 Colo. 308 , 487 P.2d 375 (1971).
And the only persons designated as having the authority to sign the summons and complaint are peace officers, but there is no requirement that the complainant should be described as a peace officer on the face of the complaint. Francis v. County Court, 175 Colo. 308 , 487 P.2d 375 (1971).
And it is sufficient that the summons alleges that the complainant "knows or believes" rather than stating more formally that he "knows or has reason to believe" that the accused committed the offense charged. Francis v. County Court, 175 Colo. 308 , 487 P.2d 375 (1971).
Moreover, this section does not require a verification of a summons and complaint charging a misdemeanor and issued by a peace officer. Stubert v. County Court, 163 Colo. 535 , 433 P.2d 97 (1967).
And the fact verification is not mentioned is significant. By carefully spelling out in detail the contents of a summons and complaint issued by a peace officer in this section, the fact that there is no mention of any requirement that the summons and complaint contain a verification is quite significant. Francis v. County Court, 175 Colo. 308 , 487 P.2d 375 (1971).
16-2-107. Content of summons after complaint.
A summons issued out of the county court after a complaint is filed need contain only the date, time, and place of appearance of the defendant, but a copy of the complaint shall be attached to and served with the summons.
Source: L. 72: R&RE, p. 194, § 1. C.R.S. 1963: § 39-2-107.
16-2-108. Place of appearance and trial.
The place at which the summons directs the defendant to appear shall be the place at which the court having jurisdiction over the matter customarily sits. It shall be a location at which the county court of the county in which the offense was alleged to have been committed sits regularly unless otherwise provided by this section. If the summons and complaint is issued by a peace officer and served personally upon the defendant by such peace officer, it may direct appearance at a location in which the county court of an adjoining county sits regularly if such a place is agreed to be more convenient by both the peace officer and the defendant. Costs and fines, to the extent provided by law, shall be retained by the county in which the matter is heard.
Source: L. 72: R&RE, p. 194, § 1. C.R.S. 1963: § 39-2-108. L. 91: Entire section amended, p. 429, § 5, effective May 24.
16-2-109. Service of summons.
A summons issued by the county court in a prosecution for a misdemeanor or class 1 petty offense may be served by giving a copy to the defendant personally or by leaving a copy at the defendant's usual place of abode with some person over the age of eighteen years residing therein or by mailing a copy to the defendant's last known address by certified mail, return receipt requested, not less than fourteen days prior to the time the defendant is required to appear. Service by mail shall be complete upon the return of the receipt signed by the defendant. Personal service shall be made by any disinterested party over the age of eighteen years.
Source: L. 72: R&RE, p. 194, § 1. C.R.S. 1963: § 39-2-109. L. 90: Entire section amended, p. 923, § 2, effective March 27. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 842, § 57, effective July 1.
16-2-110. Failure to appear.
If a person upon whom a summons or summons and complaint has been served pursuant to this part 1 fails to appear in person or by counsel at the place and time specified therein, a bench warrant may issue for his arrest.
Source: L. 72: R&RE, p. 194, § 1. C.R.S. 1963: § 39-2-110. L. 87: Entire section amended, p. 603, § 1, effective July 1.
16-2-111. Admission to bail pending appearance.
Any person charged with a misdemeanor or petty offense by complaint filed in the county court shall be admitted to bail or pretrial release as provided in article 4 of this code. When the county judge or judges are not immediately available for purposes of admission to bail or pretrial release of persons arrested and brought to the county court or jail, on charges of committing a misdemeanor or petty offense, such persons may be admitted to bail or be given a pretrial release by an appropriate officer designated by court rule. Unless otherwise provided by statute or supreme court rule, the county court shall provide by rule for the conditions and circumstances under which an admission to bail or pretrial release will be granted pending appearance before the judge, but in no event shall any such rule require conditions or impose liabilities in excess of those required by this code for cases filed in the district court.
Source: L. 72: R&RE, p. 194, § 1. C.R.S. 1963: § 39-2-111.
ANNOTATION
In addition to procedures under §§ 16-2-112 and 16-3-105, a county court acquires jurisdiction over a defendant when a warrantless arrest for a misdemeanor offense is made and the defendant is admitted to bail through execution of an appearance bond pursuant to this section and a misdemeanor complaint later is filed in the county court. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
The defendant's release upon admission to bail and the subsequent filing of the complaint complied with the requirements of § 16-2-112 when said section properly is read in conjunction with this section. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
By posting bail and executing an appearance bond the defendant waived service of the complaint on him until his appearance date and this procedure complied with § 16-2-112 and related rules, which do not require that a person charged with a misdemeanor be given a copy of the complaint until at or before the time he is arraigned. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
The statutes and procedural rules do not require that a person charged with a misdemeanor be given a copy of the complaint prior to being released on bail. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
16-2-112. Arrest followed by a complaint.
If a peace officer makes an arrest without a warrant of a person for a misdemeanor or a petty offense, the arrested person shall be taken without unnecessary delay before the nearest available county or district judge. Thereafter, a complaint shall be filed immediately in the county court having jurisdiction of the offense and a copy thereof given to the defendant at or before the time he is arraigned. The provisions of this section are subject to the right of the arresting authority to release the arrested person pursuant to section 16-3-105.
Source: L. 72: R&RE, p. 195, § 1. C.R.S. 1963: § 39-2-112.
ANNOTATION
The defendant's release upon admission to bail and the subsequent filing of the complaint complied with the requirements of this section when properly read in conjunction with § 16-2-111. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
By posting bail and executing an appearance bond the defendant waived service of the complaint on him until his appearance date and this procedure complied with this section and related rules, which do not require that a person charged with a misdemeanor be given a copy of the complaint until at or before the time he is arraigned. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
The statutes and procedural rules do not require that a person charged with a misdemeanor be given a copy of the complaint prior to being released on bail. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
16-2-113. Appearance of defendant before judge - subsequent procedure.
- Upon appearance of the defendant before the judge in response to a summons or following arrest for a misdemeanor or a petty offense and in all proceedings thereafter unless otherwise provided in this code, the Colorado rules of criminal procedure are applicable. Prosecution may be conducted on the summons and complaint or the separate complaint if one has been filed. Trial may be held forthwith if the court calendar permits, immediate trial appears proper, and the parties do not request a continuance for good cause. Otherwise, the case shall be set for trial as soon as possible.
- Upon appearance before a judge for an offense under section 42-2-138 (1)(d) or 42-4-1301 (1) or (2)(a), C.R.S., the judge may order conditions of the summons, including but not limited to drug and alcohol evaluation and treatment. For a violation of an order entered pursuant to this subsection (2), a court may revoke the summons, issue a warrant for the defendant's arrest, and impose bail pursuant to the provisions of article 4 of this title.
Source: L. 72: R&RE, p. 195, § 1. C.R.S. 1963: § 39-2-113. L. 2008: Entire section amended, p. 785, § 2, effective July 1.
16-2-114. Appeals.
- The defendant may appeal a judgment of the county court in a criminal action under simplified procedure to the district court of the county. To appeal, the defendant shall, within thirty-five days after the date of entry of the judgment or the denial of posttrial motions, whichever is later, file notice of appeal in the county court, post any advance costs that are required for the preparation of the record, and serve a copy of the notice of appeal upon the appellee. The defendant shall also, within such thirty-five days, docket the appeal in the district court and pay the docket fee. No motion for new trial or in arrest of judgment shall be required as a prerequisite to an appeal, but such motions may be made pursuant to applicable rule of the Colorado supreme court.
- The notice of appeal shall state with particularity the alleged errors of the county court or other grounds relied upon for the appeal and shall include a stipulation or designation of the evidence and other proceedings which the appellant desires to have included in the record certified to the district court. If the appellant intends to urge upon appeal that the judgment or a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to that finding or conclusion. The appellee shall have fourteen days after service upon him or her of the notice of appeal to file with the clerk of the county court and serve upon the appellant a designation of any additional parts of the transcript or record which he or she deems necessary. The advance cost of preparing the additional record shall be posted by the appellant with the clerk of the county court within seven days after service upon him or her of the appellee's designation, or the appeal will be dismissed. If the district court finds that any part of the additional record designated by the appellee was unessential to a complete understanding of the questions raised by the appeal, it shall order the appellee to reimburse the appellant for the cost advanced for the preparation of that part without regard to the outcome of the appeal.
- Upon the filing of a notice of appeal and upon the posting of any advance costs by the appellant, as are required for the preparation of a record, unless the appellant is granted leave to proceed as an indigent, the clerk of the county court shall prepare and issue as soon as possible a record of the proceedings in the county court, including the summons and complaint or warrant, the separate complaint if any has been issued, and the judgment. The record shall also include a transcription or a joint stipulation of such part of the actual evidence and other proceedings as the parties designate. If the proceedings have been recorded electronically, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the court, either by him or her or under his or her supervision, within forty-two days after the filing of the notice of appeal or within such additional time as may be granted by the county court. The clerk shall notify in writing the opposing parties of the completion of the record, and such parties shall have fourteen days within which to file objections. If none are received, the record shall be certified forthwith by the clerk. If objections are made, the parties shall be called for hearing and the objections settled by the county judge and the record then certified.
- When the record has been duly certified and any additional fees therefor paid, it shall be filed with the clerk of the district court by the clerk of the county court, and the opposing parties shall be notified by the clerk of the county court of the filing.
- A written brief setting out matters relied upon as constituting error and outlining any arguments to be made shall be filed in the district court by the appellant within twenty-one days after certification of the record. A copy of the appellant's brief shall be served upon the appellee. The appellee may file an answering brief within twenty-one days after such service. A reply brief may be filed within fourteen days after service of the answering brief. In the discretion of the district court, the time for filing briefs and answers may be extended.
- Pending the docketing of the appeal, a stay of execution shall be granted by the county court upon request. If a sentence of imprisonment has been imposed, the defendant may be required to post bail, and if a fine and costs have been imposed, a deposit of the amount thereof or the posting of a bond for the payment thereof may be required by the county court. Upon a request for stay of execution made anytime after the docketing of the appeal, this action may be taken by the district court. Stays of execution granted by the county court or district court and, with the written consent of the sureties if any, bonds posted with such courts shall remain in effect until after final disposition of the appeal, unless modified by the district court.
- If for any reason an adequate record cannot be certified to the district court, the case shall be tried de novo in that court. No action on appeal shall result in an increase in penalty.
- Unless there is further review by the supreme court upon writ of certiorari pursuant to the rules of that court, after final disposition of the appeal the judgment on appeal entered by the district court shall be certified to the county court for action as directed by the district court, except in cases tried de novo by the district court or in cases in which the district court modifies the county court judgment, and, in such cases, the judgment on appeal shall be that of the district court and so enforceable.
- Repealed.
Source: L. 72: R&RE, p. 195, § 1. C.R.S. 1963: § 39-2-114. L. 85: (9) repealed, p. 572, § 12, effective November 14, 1986. L. 2012: (1), (2), (3), and (5) amended, (SB 12-175), ch. 208, p. 842, § 58, effective July 1. L. 2013: (3) amended, (HB 13-1086), ch. 32, p. 77, § 2, effective July 1.
ANNOTATION
Annotator's note. Since § 16-2-114 is similar to repealed § 37-17-15, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
Law reviews. For article, "Appeals of County Court, Municipal Court, and Magistrate Rulings", see 47 Colo. Law. 32 (Oct. 2018).
The function of a district court in acting as an appellate court is the same whether the case originates in a municipal court of record or a county court. People v. Anderson, 177 Colo. 84 , 492 P.2d 844 (1972).
And this section requires a district court either to review a decision on the record, remand the case for a new trial with instructions, or direct that trial de novo be had before the district court. People v. Anderson, 177 Colo. 84 , 492 P.2d 844 (1972).
The appeal of misdemeanor cases, when tried de novo by a district court, results in the judgment being that of the district court and so enforceable. Hylton v. City of Colo. Springs, 32 Colo. App. 9, 505 P.2d 26 (1973).
Subsection (6) of this section and Crim. P. 37(f) require a county court, upon request, to grant a stay of execution of a defendant's sentence pending appeal of a misdemeanor conviction to the district court. People v. Steen, 2014 CO 9, 318 P.3d 487.
PART 2 PENALTY ASSESSMENT PROCEDURE
16-2-201. Penalty assessment procedure.
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When a person is arrested for a class 2 petty offense, the arresting officer may either give the person a penalty assessment notice and release him upon its terms or take him before a judge of the county court in the county in which the alleged offense occurred. The choice of procedures shall be based upon circumstances which reasonably persuade the officer that the alleged offender is likely or unlikely to comply with the terms of the penalty assessment notice. Such circumstances may include the officer accompanying the offender to a post office or mailbox and witnessing the deposit in the mail of the notice with payment of the fine attached.
(1.5) The provisions of subsection (1) of this section notwithstanding, when an officer comes upon an unattended vehicle which is parked in apparent violation of any county parking ordinance, the officer may place upon the vehicle a penalty assessment notice as specified in subsection (2) of this section; except that said notice shall contain the license plate number and state of registration of the vehicle and need not contain the identification of the alleged offender.
- The penalty assessment notice shall be a summons and complaint containing identification of the alleged offender, specification of the offense and applicable fine, a requirement that the alleged offender pay the fine or appear to answer the charge at a specified time and place, and any other matter reasonably adapted to effectuating the purposes of this section. A duplicate copy shall be sent to the clerk of the county court in the county in which the alleged offense occurred. The provisions of this section shall not apply to penalties assessed pursuant to authority of law outside this code unless this section is specifically referred to in such other law.
- If the person given a penalty assessment notice chooses to acknowledge his guilt, he may pay the specified fine in person or by mail at the place and within the time specified in the notice. If he chooses not to acknowledge his guilt, he shall appear as required in the notice. Upon trial, if the alleged offender is found guilty, the fine imposed shall be that specified in the notice for the offense of which he was found guilty, but customary court costs may be assessed against him in addition to the fine.
Source: L. 72: R&RE, p. 197, § 1. C.R.S. 1963: § 39-2-201. L. 73: p. 498, § 2. L. 91: Entire section amended, p. 423, § 1, effective March 11.
ANNOTATION
Section 16-3-102 permits a police officer to arrest a person who has committed a crime in the officer's presence. This section does not limit that authority. An officer may arrest when a crime occurs in his or her presence. When that crime is a class two petty offense, the arresting officer may, pursuant to this section, either take the arrested suspect before a judge or release the suspect after issuing a penalty assessment. Police compliance with both statutes is achieved because, even though they conduct a full custodial arrest and search, police "may" still release the offender without taking him before a judge. A custodial arrest and a discretionary release are not mutually exclusive under this section. People v. Triantos, 55 P.3d 131 (Colo. 2002).
An officer can decide, before or after a custodial arrest, to arrest or release a suspect, based upon whether the suspect is likely to appear as required in a summons. The arresting officer can choose either to release the suspect or to take the suspect before a judge even after the officer has effectuated a custodial arrest and conducted a search of the suspect. People v. Triantos, 55 P.3d 131 (Colo. 2002).
ARTICLE 2.5 PEACE OFFICERS
Section
PART 1 PEACE OFFICERS
Law reviews: For article, "Controlling the Criminal Justice System: Colorado as a Case Study", see 94 Denv. L. Rev. 497 (2017).
16-2.5-101. Peace officer - description - general authority.
- A person who is included within the provisions of this article and who meets all standards imposed by law on a peace officer is a peace officer, and, notwithstanding any other provision of law, no person other than a person designated in this article is a peace officer. A peace officer may be certified by the peace officers standards and training board pursuant to part 3 of article 31 of title 24, C.R.S., and, at a minimum, has the authority to enforce all laws of the state of Colorado while acting within the scope of his or her authority and in the performance of his or her duties, unless otherwise limited within this part 1.
- A peace officer certified by the peace officers standards and training board shall have the authority to carry firearms at all times, concealed or otherwise, subject to the written firearms policy created by the agency employing the peace officer. All other peace officers shall have the authority to carry firearms, concealed or otherwise, while engaged in the performance of their duties or as otherwise authorized by the written policy of the agency employing the officer.
- As used in every statute, unless the context otherwise requires, "law enforcement officer" means a peace officer.
Source: L. 2003: Entire article added, p. 1605, § 2, effective August 6. L. 2006: (1) amended, p. 27, § 1, effective July 1, 2007.
ANNOTATION
Annotator's note. Since § 16-2.5-101 is similar to repealed § 18-1-901 (3)(l), relevant cases construing that provision have been included in the annotations to this section.
Jailer included as peace officer. The jailer is a deputy sheriff and as such is a peace officer within the definition of subsection (3)(l). People v. Shockley, 41 Colo. App. 515, 591 P.2d 589 (1978).
Fellow officer doctrine applicable to parole officer. By definition in the "Colorado Criminal Code", the parole officer is a "peace officer", and there is no persuasive reason why a parole officer should not come within the fellow officer doctrine. People v. Bergstrom, 190 Colo. 105 , 544 P.2d 396 (1975).
Under the "fellow officer rule", a sheriff's deputies were entitled to rely upon and accept the information supplied by the parole officer. People v. Bergstrom, 190 Colo. 105 , 544 P.2d 396 (1975).
For purposes of the reference to subsection (3)(l)(I) made in § 24-31-302 (5), the certification requirement does not constitute a part of that the referenced definition. Fraternal Order, No. 27 v. Denver, 914 P.2d 483 (Colo. App. 1995).
The phrase "has the authority to enforce all the laws of the state of Colorado while acting within the scope of his authority and in the performance of his duties", does not constitute a part of the definition of peace officer, level I. Fraternal Order, No. 27 v. Denver, 914 P.2d 483 (Colo. App. 1995).
Applied in People v. Roberts, 43 Colo. App. 100, 601 P.2d 654 (1979); People v. Herrera, 633 P.2d 1091 (Colo. App. 1981).
16-2.5-102. Certified peace officer - P.O.S.T. certification required.
The following peace officers shall meet all the standards imposed by law on a peace officer and shall be certified by the peace officers standards and training board, referred to in this article as the "P.O.S.T. board": A chief of police; a police officer; a sheriff; an undersheriff; a deputy sheriff; a Colorado state patrol officer; a town marshal; a deputy town marshal; a reserve police officer; a reserve deputy sheriff; a reserve deputy town marshal; a police officer or reserve police officer employed by a state institution of higher education; a Colorado wildlife officer; a Colorado parks and recreation officer; a Colorado police administrator or police officer employed by the Colorado mental health institute at Pueblo; an attorney general criminal investigator; a community parole officer; a public transit officer; a municipal court marshal; and the department of corrections inspector general.
Source: L. 2003: Entire article added, p. 1606, § 2, effective August 6. L. 2004: Entire section amended, p. 1162, § 2, effective May 27. L. 2008: Entire section amended, p. 85, § 1, effective March 18. L. 2010: Entire section amended, (HB 10-1422), ch. 419, p. 2069, § 26, effective August 11. L. 2016: Entire section amended, (SB 16-189), ch. 210, p. 759, § 25, effective June 6.
16-2.5-103. Sheriff - undersheriff - certified deputy sheriff - noncertified deputy sheriff.
- A sheriff, an undersheriff, and a deputy sheriff are peace officers whose authority shall include the enforcement of all laws of the state of Colorado. A sheriff shall be certified by the P.O.S.T. board pursuant to section 30-10-501.6, C.R.S. An undersheriff and a deputy sheriff shall be certified by the P.O.S.T. board.
- A noncertified deputy sheriff or detention officer is a peace officer employed by a county or city and county whose authority is limited to the duties assigned by and while working under the direction of the chief of police, sheriff, an official who has the duties of a sheriff in a city and county, or chief executive of the employing law enforcement agency.
Source: L. 2003: Entire article added, p. 1606, § 2, effective August 6.
16-2.5-104. Coroner.
A coroner is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to part 6 of article 10 of title 30, C.R.S.
Source: L. 2003: Entire article added, p. 1606, § 2, effective August 6.
16-2.5-105. Police officer.
A police officer, including a chief of police employed by a municipality, is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who shall be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1606, § 2, effective August 6.
16-2.5-106. Southern Ute Indian police officer.
A Southern Ute Indian police officer is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1606, § 2, effective August 6.
16-2.5-107. Ute Mountain Ute Indian police officer.
A Ute Mountain Ute Indian police officer is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1606, § 2, effective August 6.
16-2.5-108. Town marshal - deputy.
A town marshal or deputy town marshal is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who shall be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1607, § 2, effective August 6.
16-2.5-109. Fire arson investigator.
A fire arson investigator authorized by a unit of local government is a peace officer while engaged in the performance of his or her duties whose authority shall be limited to the enforcement of arson and related laws and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1607, § 2, effective August 6. L. 2008: Entire section amended, p. 703, § 1, effective May 1.
16-2.5-110. Reserve police officer - reserve deputy sheriff - reserve deputy town marshal - definitions.
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- A reserve police officer, a reserve deputy sheriff, and a reserve deputy town marshal are reserve officers.
- "Reserve officer" means a person authorized by a city, city and county, town, county, or state institution of higher education within this state to act as a reserve police officer, reserve deputy sheriff, or reserve town marshal for certain specific and limited periods of time while the person is authorized to be on duty and acting at the express direction or under the direct supervision of a fully P.O.S.T.-certified peace officer pursuant to section 16-2.5-103, 16-2.5-105, 16-2.5-108, or 16-2.5-120. A reserve officer is a peace officer while engaged in the performance of his or her duties whose authority shall be limited to the authority granted by his or her authorizing agency.
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A reserve officer:
- Shall obtain reserve certification by the P.O.S.T. board as a reserve officer; or
- May be a fully P.O.S.T.-certified peace officer serving as a volunteer and may be granted full peace officer status and authority at the discretion of the appointing authority.
- A city, city and county, town, county, or state institution of higher education assigning duties to a reserve officer beyond those duties included in the P.O.S.T. board training shall assume the responsibility for ensuring that the reserve officer is adequately trained for the duties. Any expenses associated with the additional training shall be authorized by the city, city and county, town, county, or state institution of higher education. If the jurisdiction allows or requires the reserve officer to carry or use a firearm while on duty, the reserve officer shall be certified for firearms proficiency with the same frequency and subject to the same requirements as a P.O.S.T.-certified peace officer in the jurisdiction. A reserve officer who does not comply with the training requirements set forth in this subsection (2) is not authorized to enforce the laws of the state of Colorado.
- (Deleted by amendment, L. 2007, p. 121 , § 1, effective August 3, 2007.) (3.5) If a police chief, sheriff, or town marshal determines that a reserve officer has been adequately trained to perform a law-enforcement function that the police chief, sheriff, or town marshal is required to perform, the police chief, sheriff, or town marshal may allow the reserve officer to perform the function either in uniform or in civilian clothes, whichever is appropriate.
- When performing extradition duties, the reserve officer shall be accompanied by a P.O.S.T.-certified officer.
- A reserve officer may be compensated for his or her time during a declared emergency or during a time of special need. In all other circumstances, a reserve officer shall serve without compensation, but may be reimbursed at the discretion of the city, city and county, town, county, or state institution of higher education benefitting from the services of the reserve officer for any authorized out-of-pocket expenses incurred in the course of his or her duties. The city, city and county, town, county, or state institution of higher education shall pay the cost of workers' compensation benefits for injuries incurred by a reserve officer while on duty and while acting within the scope of his or her assigned duties. A reserve officer is an authorized volunteer for purposes of article 10 of title 24, C.R.S.
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For the purposes of this section:
- "Direct supervision" means an assignment given by a fully P.O.S.T.-certified peace officer to a reserve officer, which assignment is carried out in the personal presence of, or in direct radio or telephone contact with, and under the immediate control of, the fully P.O.S.T.-certified peace officer.
- "Express direction" means a defined, task-specific assignment given by a fully P.O.S.T.-certified peace officer to a reserve officer. The fully P.O.S.T.-certified peace officer need not be present while the reserve officer carries out the assignment.
- For the purposes of this section, a person serving as a citizen auxiliary is not a peace officer and the P.O.S.T. board shall not require the person to be certified.
Source: L. 2003: Entire article added, p. 1607, § 2, effective August 6. L. 2004: (3), (4), and (6) amended and (3.5) added, p. 678, § 1, effective August 4. L. 2007: (1), (3), and (6) amended, p. 121, § 1, effective August 3. L. 2008: (1)(b), (2), and (5) amended, p. 85, § 2, effective March 18.
16-2.5-111. Executive director of the department of public safety - deputy executive director of the department of public safety - director of the division of criminal justice in the department of public safety.
The executive director and deputy executive director of the department of public safety and the director of the division of criminal justice in the department of public safety are peace officers whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1608, § 2, effective August 6. L. 2012: Entire section amended, (HB 12-1079), ch. 21, p. 56, § 1, effective March 16.
16-2.5-112. Director of the division of homeland security and emergency management.
The director of the division of homeland security and emergency management in the department of public safety is a peace officer whose authority includes the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1608, § 2, effective August 6. L. 2012: Entire section amended, (HB 12-1283), ch. 240, p. 1132, § 39, effective July 1.
Cross references: For the legislative declaration in the 2012 act amending this section, see section 1 of chapter 240, Session Laws of Colorado 2012.
16-2.5-112.5. Manager of the office of prevention and security within the division of homeland security and emergency management.
The manager of the office of prevention and security within the division of homeland security and emergency management in the department of public safety is a peace officer whose authority includes the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2017: Entire section added, (HB 17-1209), ch. 247, p. 1043, § 1, effective August 9.
16-2.5-113. Colorado bureau of investigation director - agent.
A director of the Colorado bureau of investigation is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board. A Colorado bureau of investigation agent is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado pursuant to section 24-33.5-409, C.R.S., and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1608, § 2, effective August 6. L. 2013: Entire section amended, (HB 13-1076), ch. 6, p. 16, § 1, effective February 27.
16-2.5-114. Colorado state patrol officer.
A Colorado state patrol officer is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado pursuant to section 24-33.5-212, C.R.S., and who shall be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1609, § 2, effective August 6.
16-2.5-115. Port of entry officer.
A port of entry officer is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to section 42-8-104, C.R.S.
Source: L. 2003: Entire article added, p. 1609, § 2, effective August 6.
16-2.5-116. Colorado wildlife officer - special wildlife officer.
- A Colorado wildlife officer employed by the Colorado division of parks and wildlife in the department of natural resources is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado pursuant to section 33-1-102 (4.3), C.R.S., and who shall be certified by the P.O.S.T. board. Each Colorado wildlife officer shall be required to complete a minimum of forty hours of continuing law enforcement education per calendar year, or such number of hours as may otherwise be required by law.
- A special wildlife officer is a peace officer whose authority is limited as defined by the director of the division of parks and wildlife pursuant to section 33-1-110 (5), C.R.S.
Source: L. 2003: Entire article added p. 1609, § 2, effective August 6; (2) amended, p. 1954, § 50, effective August 6.
16-2.5-117. Colorado parks and recreation officer - special parks and recreation officer.
- A Colorado parks and recreation officer employed by the Colorado division of parks and wildlife in the department of natural resources is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado pursuant to section 33-10-102 (17), C.R.S., and who shall be certified by the P.O.S.T. board. Each Colorado parks and recreation officer shall be required to complete a minimum of forty hours of continuing law enforcement education per calendar year, or such number of hours as may otherwise be required by law.
- A special parks and recreation officer is a peace officer whose authority is limited as defined by the director of the division of parks and wildlife pursuant to section 33-10-109 (1)(f), C.R.S.
Source: L. 2003: Entire article added, p. 1609, § 2, effective August 6; (2) amended, p. 1954, § 51, effective August 6.
16-2.5-118. Commissioner of agriculture.
The commissioner of agriculture or his or her designee is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to sections 35-36-103 and 35-36-312 of the "Commodity Handler and Farm Products Act"; the "Animal Protection Act", section 35-42-107 (4); and the "Pet Animal Care and Facilities Act", section 35-80-109 (6).
Source: L. 2003: Entire article added, p. 1609, § 2, effective August 6. L. 2017: Entire section amended, (SB 17-225), ch. 262, p. 1246, § 4, effective August 9. L. 2020: Entire section amended, (HB 20-1213), ch. 160, p. 753, § 5, effective June 29.
16-2.5-119. State brand inspector.
A state brand inspector is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to section 35-53-128, C.R.S.
Source: L. 2003: Entire article added, p. 1609, § 2, effective August 6.
16-2.5-120. Colorado state higher education security officer.
A Colorado state higher education security officer employed by a state institution of higher education pursuant to sections 24-7-101 to 24-7-106, C.R.S., is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1610, § 2, effective August 6. L. 2008: Entire section amended, p. 86, § 3, effective March 18.
16-2.5-121. Executive director of the department of revenue - senior director of enforcement for the department of revenue.
The executive director and the senior director of enforcement of the department of revenue are peace officers while engaged in the performance of their duties whose authority includes the enforcement of laws and rules regarding automobile dealers pursuant to section 44-20-105 (3), the lottery pursuant to sections 44-40-106 (3) and 44-40-107 (8), medical marijuana pursuant to article 10 of title 44, limited gaming pursuant to article 30 of title 44, liquor pursuant to section 44-3-905 (1), and racing events pursuant to section 44-32-203 (1), and the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1610, § 2, effective August 6. L. 2010: Entire section amended, (HB 10-1284), ch. 355, p. 1685, § 4, effective July 1. L. 2017: Entire section amended, (SB 17-240), ch. 395, p. 2063, § 44, effective July 1. L. 2018: Entire section amended, (SB 18-030), ch. 7, p. 139, § 7, effective October 1; entire section amended, (SB 18-034), ch. 14, p. 238, § 9, effective October 1; entire section amended, (HB 18-1023), ch. 55, p. 586, § 10, effective October 1; entire section amended, (HB 18-1024), ch. 26, p. 322, § 10, effective October 1; entire section amended, (HB 18-1025), ch. 152, p. 1078, § 6, effective October 1; entire section amended, (HB 18-1027), ch. 31, p. 362, § 6, effective October 1; entire section amended, (HB 18-1375), ch. 274, p. 1699, § 15, effective October 1. L. 2019: Entire section amended, (SB 19-224), ch. 315, p. 2936, § 14, effective January 1, 2020.
Editor's note: Amendments to this section by SB 18-030, SB 18-034, HB 18-1023, HB 18-1024, HB 18-1025, and HB 18-1027 were harmonized.
16-2.5-122. Auto industry investigator.
The director of the auto industry division or an auto industry investigator is a peace officer while engaged in the performance of his or her duties whose authority is limited to the enforcement of section 44-20-105 (3).
Source: L. 2003: Entire article added, p. 1610, § 2, effective August 6. L. 2017: Entire section amended, (SB 17-240), ch. 395, p. 2064, § 46, effective July 1. L. 2018: Entire section amended, (SB 18-030), ch. 7, p. 139, § 8, effective October 1.
16-2.5-123. Director of the division of gaming - gaming investigator.
The director of the division of gaming in the department of revenue or a gaming investigator in the department of revenue is a peace officer while engaged in the performance of his or her duties whose primary authority shall be as stated in section 44-30-204 and shall also include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1610, § 2, effective August 6. L. 2018: Entire section amended, (SB 18-034), ch. 14, p. 238, § 10, effective October 1.
16-2.5-124. Liquor enforcement investigator.
A liquor enforcement investigator is a peace officer while engaged in the performance of his or her duties and while acting under proper orders or regulations whose primary authority shall be as stated in sections 44-3-905 (1) and 44-7-104 and shall also include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1610, § 2, effective August 6. L. 2018: Entire section amended, (SB 18-036), ch. 34, p. 377, § 5, effective October 1; entire section amended, (HB 18-1025), ch. 152, p. 1078, § 7, effective October 1.
Editor's note: Amendments to this section by SB 18-036 and HB 18-1025 were harmonized.
16-2.5-124.5. Director of marijuana enforcement and marijuana enforcement investigator.
The director of the marijuana enforcement division or a marijuana enforcement investigator is a peace officer while engaged in the performance of his or her duties and while acting under proper orders or rules pursuant to article 10 of title 44, and shall also include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2010: Entire section added, (HB 10-1284), ch. 355, p. 1685, § 5, effective July 1. L. 2013: Entire section amended, (HB 13-1317), ch. 329, p. 1864, § 6, effective May 28. L. 2018: Entire section amended, (HB 18-1023), ch. 55, p. 586, § 11, effective October 1. L. 2019: Entire section amended, (SB 19-224), ch. 315, p. 2937, § 15, effective January 1, 2020.
16-2.5-125. State lottery investigator.
A state lottery investigator is a peace officer while engaged in the performance of his or her duties whose primary authority shall be as stated in sections 44-40-106 (3) and 44-40-107 (8) and shall also include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1610, § 2, effective August 6. L. 2018: Entire section amended, (HB 18-1027), ch. 31, p. 363, § 7, effective October 1.
16-2.5-126. Director of racing events - racing events supervisor - racing events investigator.
The director of racing events, a racing events supervisor, and a racing events investigator are peace officers while engaged in the performance of their duties whose primary authority shall be as stated in section 44-32-203 (1) and shall also include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1610, § 2, effective August 6. L. 2018: Entire section amended, (HB 18-1024), ch. 26, p. 322, § 11, effective October 1.
16-2.5-127. State student loan investigator.
A state student loan investigator is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to section 23-3.1-104 (2)(q), C.R.S.
Source: L. 2003: Entire article added, p. 1611, § 2, effective August 6.
16-2.5-128. Colorado attorney general - chief deputy attorney general - solicitor general - assistant solicitor general - deputy attorney general - assistant attorney general of criminal enforcement - assistant attorney general and employee as designated.
The attorney general, chief deputy attorney general, solicitor general, assistant solicitors general, deputy attorneys general, assistant attorneys general of criminal enforcement, and certain other assistant attorneys general and employees of the department of law who are designated by the attorney general are peace officers whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1611, § 2, effective August 6. L. 2011: Entire section amended, (SB 11-020), ch. 39, p. 105, § 1, effective March 21.
16-2.5-129. Attorney general criminal investigator.
An attorney general criminal investigator is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who shall be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1611, § 2, effective August 6.
16-2.5-130. P.O.S.T. director - P.O.S.T. board investigator.
The director of the P.O.S.T. board and a P.O.S.T. board investigator are peace officers while engaged in the performance of their duties whose primary authority shall include the enforcement of laws and rules pertaining to the training and certification of peace officers and shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1611, § 2, effective August 6.
16-2.5-131. Chief security officer for the general assembly.
The chief security officer for the general assembly is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to section 2-2-402, C.R.S.
Source: L. 2003: Entire article added, p. 1611, § 2, effective August 6.
16-2.5-132. District attorney - assistant district attorney - chief deputy district attorney - deputy district attorney - special deputy district attorney - special prosecutor.
A district attorney, an assistant district attorney, a chief deputy district attorney, a deputy district attorney, a special deputy district attorney, and a special prosecutor are peace officers whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1611, § 2, effective August 6.
16-2.5-133. District attorney chief investigator - district attorney investigator.
A district attorney chief investigator and a district attorney investigator are peace officers whose authority shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1611, § 2, effective August 6.
16-2.5-134. Department of corrections inspector general - department of corrections investigator.
The department of corrections inspector general and a department of corrections investigator are peace officers whose authority shall be pursuant to section 17-1-103.8, C.R.S., and whose authority shall include the enforcement of all the laws of the state of Colorado. A department of corrections investigator may be certified by the P.O.S.T. board. The inspector general shall be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1612, § 2, effective August 6.
16-2.5-135. Executive director of the department of corrections - warden - corrections officer.
The executive director of the department of corrections, a warden, a corrections officer employed by the department of corrections, or other department of corrections employee assigned by the executive director, is a peace officer while engaged in the performance of his or her duties pursuant to title 17, C.R.S., whose primary authority is the supervision of persons in the custody or confinement of the department of corrections and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1612, § 2, effective August 6.
16-2.5-136. Community parole officer.
A community parole officer employed by the department of corrections is responsible for supervising offenders in the community and supporting the division of adult parole in providing assistance to parolees to secure employment, housing, and other services to support their successful reintegration into the community while recognizing the need for public safety. A community parole officer is a peace officer whose authority shall be pursuant to section 17-27-105.5, C.R.S., and whose authority shall include the enforcement of all laws of the state of Colorado, and who shall be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1612, § 2, effective August 6. L. 2010: Entire section amended, (HB 10-1360), ch. 263, p. 1193, § 1, effective May 25.
16-2.5-137. Adult probation officer.
An adult probation officer is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to part 2 of article 11 of this title.
Source: L. 2003: Entire article added, p. 1612, § 2, effective August 6.
16-2.5-138. Juvenile probation officer - juvenile parole officer.
A juvenile probation officer and a juvenile parole officer are peace officers while engaged in the performance of their duties whose authority shall be limited pursuant to sections 19-2-926 and 19-2-1003, C.R.S.
Source: L. 2003: Entire article added, p. 1612, § 2, effective August 6.
16-2.5-139. Police administrator - police officer employed by the Colorado mental health institute at Pueblo.
A police administrator and a police officer employed by the Colorado mental health institute at Pueblo are peace officers whose authority shall include the enforcement of all laws of the state of Colorado pursuant to article 7 of title 24, C.R.S., and who shall be certified by the P.O.S.T. board. Each police administrator or police officer employed by the Colorado mental health institute at Pueblo shall complete a minimum of forty hours of continuing law enforcement education per calendar year, or such number of hours as may otherwise be required by law.
Source: L. 2003: Entire article added, p. 1612, § 2, effective August 6. L. 2009: Entire section amended, (SB 09-097), ch. 110, p. 456, § 1, effective August 5.
16-2.5-140. Correctional security officer employed by the Colorado mental health institute at Pueblo.
A correctional security officer employed by the Colorado mental health institute at Pueblo is a peace officer while engaged in the performance of his or her duties as provided in article 7 of title 24, C.R.S., and whose authority shall include the enforcement of all laws of the state of Colorado, and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1612, § 2, effective August 6. L. 2009: Entire section amended, (SB 09-097), ch. 110, p. 456, § 2, effective August 5.
16-2.5-141. Colorado state security guard.
A Colorado state security guard is a peace officer while engaged in the performance of his or her duties pursuant to article 7 of title 24, C.R.S., whose authority shall be limited to the scope and authority of his or her assigned duties and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1613, § 2, effective August 6. L. 2009: Entire section amended, (SB 09-097), ch. 110, p. 456, § 3, effective August 5.
16-2.5-142. Railroad peace officer.
A railroad peace officer is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to section 40-32-104.5, C.R.S., and who may be certified by the P.O.S.T. board.
Source: L. 2003: Entire article added, p. 1613, § 2, effective August 6.
16-2.5-143. Public utilities commission member.
A public utilities commission member is a peace officer while engaged in the performance of his or her duties whose authority shall be limited pursuant to articles 1 to 17 of title 40, C.R.S.
Source: L. 2003: Entire article added, p. 1613, § 2, effective August 6.
16-2.5-144. Colorado National Guardsman.
A Colorado National Guardsman is a peace officer while acting under call of the governor in cases of emergency or civil disorder. His or her authority shall be limited to the period of call-up specified by the governor and shall be exercised only if the executive order of the governor calling the National Guard to state duty specifies that enforcement of the laws of the state of Colorado is a purpose for the call-up.
Source: L. 2003: Entire article added, p. 1613, § 2, effective August 6.
16-2.5-145. Municipal court marshal.
A municipal court marshal who is employed by a municipality and is specifically designated a peace officer by the municipality is a peace officer while engaged in the performance of his or her duties. The authority of such a municipal court marshal shall be limited to providing security for the municipal court, transporting, detaining, and maintaining control over prisoners, executing all arrest warrants within the municipal court and its grounds, executing municipal court arrest warrants within the municipal limits, and serving legal process issued by the municipal court within the municipal limits. A municipal court marshal shall be certified by the P.O.S.T. board.
Source: L. 2004: Entire section added, p. 414, § 1, effective April 12. L. 2006: Entire section amended, p. 27, § 2, effective July 1, 2007.
16-2.5-146. Public transit officer - definitions.
- A public transit officer who is employed by a public transportation entity and is specifically designated a peace officer by the public transportation entity is a peace officer while engaged in the performance of his or her duties in accordance with any policies and procedures adopted by the public transportation entity. A public transit officer's authority includes the enforcement of all laws of the state of Colorado. A public transit officer shall be certified by the P.O.S.T. board.
- As used in this section, "public transportation entity" means a mass transit district, a mass transit authority, or any public entity authorized under the laws of this state to provide mass transportation services to the general public.
Source: L. 2004: Entire section added, p. 1162, § 1, effective May 27. L. 2006: (1) amended, p. 28, § 3, effective July 1, 2007. L. 2012: (1) amended, (SB 12-044), ch. 274, p. 1449, § 5, effective June 8. L. 2015: Entire section amended, (SB 15-221), ch. 268, p. 1044, § 1, effective August 5.
16-2.5-147. Federal special agents.
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A special agent of the federal bureau of investigation or the United States bureau of alcohol, tobacco, firearms, and explosives, a deputy or special deputy United States marshal, or an officer of the federal protective service of the United States department of homeland security immigration and customs enforcement, in any jurisdiction within the state of Colorado, is a peace officer whose authority is limited as provided in this section. The special agent, deputy or special deputy, or officer is authorized to act in the following circumstances:
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The special agent, deputy or special deputy, or officer is:
- Responding to a nonfederal felony or misdemeanor that has been committed in the presence of the special agent, deputy or special deputy, or officer;
- Responding to an emergency situation in which the special agent, deputy or special deputy, or officer has probable cause to believe that a nonfederal felony or misdemeanor involving injury or threat of injury to a person or property has been, or is being, committed and immediate action is required to prevent escape, serious bodily injury, or destruction of property;
- Rendering assistance at the request of a Colorado peace officer; or
- Effecting an arrest or providing assistance as part of a bona fide task force or joint investigation with Colorado peace officers; and
- The agent, deputy or special deputy, or officer acts in accordance with the rules and regulations of his or her employing agency.
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The special agent, deputy or special deputy, or officer is:
- A special agent of the federal bureau of investigation or the United States bureau of alcohol, tobacco, firearms, and explosives, a deputy or special deputy United States marshal, or an officer of the federal protective service of the United States department of homeland security immigration and customs enforcement is a person who is employed by the United States government, assigned to the federal bureau of investigation, the United States bureau of alcohol, tobacco, firearms, and explosives, the United States marshal service, or the federal protective service of the United States department of homeland security immigration and customs enforcement, empowered to effect an arrest with or without a warrant for violations of the United States code, and authorized to carry a firearm and use deadly force in the performance of the special agent's, deputy's or special deputy's, or officer's official duties as a federal law enforcement officer.
- Upon effecting an arrest under the authority of this section, a special agent of the federal bureau of investigation or the United States bureau of alcohol, tobacco, firearms, and explosives, a deputy or special deputy United States marshal, or an officer of the federal protective service of the United States department of homeland security immigration and customs enforcement shall immediately surrender custody of the arrested individual to a Colorado peace officer.
- This section does not impose liability on or require indemnification or create a waiver of sovereign immunity by the state of Colorado for any action performed under this section by a special agent of the federal bureau of investigation or the United States bureau of alcohol, tobacco, firearms, and explosives, a deputy or special deputy United States marshal, or an officer of the federal protective service of the United States department of homeland security immigration and customs enforcement.
- Nothing in this section shall be construed to expand the authority of federal law enforcement officers to initiate or conduct an independent investigation into violations of Colorado law.
Source: L. 2006: Entire section added, p. 126, § 1, effective March 27. L. 2008: Entire section amended, p. 701, § 1, effective August 5. L. 2011: Entire section amended, (HB 11-1073), ch. 32, p. 90, § 1, effective August 10.
16-2.5-148. Colorado state higher education police officer.
A Colorado state higher education police officer employed by a state institution of higher education pursuant to article 7.5 of title 24, C.R.S., is a peace officer whose authority shall include the enforcement of all laws of the state of Colorado and who shall be certified by the P.O.S.T. board.
Source: L. 2008: Entire section added, p. 86, § 4, effective March 18. L. 2009: Entire section amended, (SB 09-097), ch. 110, p. 457, § 4, effective August 5.
16-2.5-149. City attorney - town attorney - senior assistant city attorney - assistant city attorney - chief deputy city attorney - deputy city attorney - special deputy city attorney - prosecuting attorney - senior prosecuting attorney - senior prosecutor - special prosecutor.
- A city attorney, town attorney, senior assistant city attorney, assistant city attorney, chief deputy city attorney, deputy city attorney, special deputy city attorney, prosecuting attorney, senior prosecuting attorney, senior prosecutor, or special prosecutor employed or contracted by a municipality, city, town, statutory city or town, or city and county is a peace officer only while engaged in the performance of his or her duties as a prosecutor. Such peace officer's authority shall include the enforcement of all laws of the municipality, city, town, statutory city or town, or city and county and the state of Colorado, and the peace officer may be certified by the P.O.S.T. board.
- Notwithstanding the provisions of subsection (1) of this section, the peace officer status conferred by subsection (1) of this section shall not be available to an attorney specified in subsection (1) of this section who chooses to practice as a criminal defense attorney in the state of Colorado while also working as a prosecuting attorney or an attorney who contracts with a municipality, city, town, statutory city or town, or city and county, local government to serve as a city attorney, town attorney, senior assistant city attorney, assistant city attorney, chief deputy city attorney, deputy city attorney, special deputy city attorney, prosecuting attorney, senior prosecuting attorney, senior prosecutor, or special prosecutor on a less than a full-time basis.
Source: L. 2012: Entire section added, (HB 12-1026), ch. 76, p. 256, § 1, effective April 6.
16-2.5-150. Fort Carson police officers.
A Fort Carson police officer is a peace officer while engaged in the performance of his or her duties. Fort Carson police officers are employed by the Fort Carson police, a federal civilian law enforcement agency within the state of Colorado. A Fort Carson police officer's authority includes enforcing all the laws of the constitution of the United States, the United States code, the "Uniform Code of Military Justice", 10 U.S.C. chapter 47, and the laws of the state of Colorado within the jurisdiction and properties of Fort Carson and the Piñon Canyon maneuver site, including all fixed and mobile properties of Fort Carson and the Piñon Canyon maneuver site. A Fort Carson police officer may be P.O.S.T.-certified.
Source: L. 2013: Entire section added, (SB 13-005), ch. 109, p. 377, § 1, effective August 7.
16-2.5-151. Federal secret service agents.
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A special agent, uniform division officer, physical security technician, physical security specialist, or special officer of the United States secret service, referred to in this section as a "secret service agent", in any jurisdiction within the state of Colorado, is a peace officer whose authority is limited as provided in this section. The secret service agent is a peace officer in the following circumstances:
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- Responding to a nonfederal felony or misdemeanor that has been committed in his or her presence;
- Responding to an emergency situation in which he or she has probable cause to believe that a nonfederal felony or misdemeanor involving injury or threat of injury to a person or property has been, or is being, committed and immediate action is required to prevent escape, serious bodily injury, or destruction of property;
- Rendering assistance at the request of a Colorado peace officer; or
- Effecting an arrest or providing assistance as part of a bona fide task force or joint investigation with Colorado peace officers; and
- The secret service agent acts in accordance with the rules and regulations of his or her employing agency.
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- A secret service agent is a person who is employed by the United States government, assigned to the United States secret service, empowered to effect an arrest with or without a warrant for violations of the United States code, and authorized to carry a firearm and use deadly force in the performance of his or her duties as a federal law enforcement officer.
- Upon effecting an arrest under the authority of this section, a secret service agent shall immediately surrender custody of the arrested individual to a Colorado peace officer.
- This section does not impose liability on or require indemnification or create a waiver of sovereign immunity by the state of Colorado for any action performed under this section by a secret service agent.
- Nothing in this section shall be construed to expand the authority of federal law enforcement officers to initiate or conduct an independent investigation into violations of Colorado law.
Source: L. 2013: Entire section added, (SB 13-013), ch. 126, p. 424, § 1, effective April 19.
16-2.5-152. Administrator of judicial security.
An administrator of judicial security employed by the judicial department is a peace officer whose authority includes the enforcement of all laws of the state of Colorado, and such administrator of judicial security must be certified by the P.O.S.T. board.
Source: L. 2018: Entire section added, (HB 18-1210), ch. 69, p. 629, § 1, effective March 22.
PART 2 SUNRISE REVIEW OF PEACE OFFICER STATUS
16-2.5-201. General assembly sunrise review of groups seeking statutory peace officer status.
- The general assembly finds that it is necessary to ensure that clear standards exist for obtaining peace officer status in the state of Colorado. The general assembly further finds it made statutory changes in 2003 to end the stratification of peace officers and ensure all peace officers receive a consistent level of statutory protection. The general assembly therefore declares, in order to maintain clear standards and consistent statutory protections for peace officers, it is necessary for the P.O.S.T. board to review a group that seeks peace officer status either for the group or for a specific position, prior to the group seeking authorization from the general assembly for the status.
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No later than July 1 of any year, a group, or political subdivision of the state that seeks peace officer status either for the group or for a specific position, shall submit to the P.O.S.T. board, for its review, a proposal containing the following information:
- A complete description of the position or a description of the group proposed for peace officer status and an estimate of the number of persons who hold the position or are in the group;
- A description of the specific need for the authority and protections required for the position or group;
- The benefit to the public that would result from granting the status;
- The costs associated with granting the status; and
- A resolution or letter of support for proposed change in status from the chief executive officer of the unit of government or political subdivision employing the group or overseeing the proposed position.
- After receiving the information specified in subsection (2) of this section, the P.O.S.T. board shall prepare an analysis, evaluation, and recommendation of the proposed status. The analysis, evaluation, and recommendation shall be based upon criteria established by the P.O.S.T. board in rules adopted pursuant to section 16-2.5-203.
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- The P.O.S.T. board shall conduct a hearing with the group seeking peace officer status for the group or for a specific position.
- At the hearing, the determination as to whether peace officer status is needed shall be based upon the criteria contained in the P.O.S.T. board rules.
- After the hearing, the P.O.S.T. board shall submit a report to the group seeking peace officer status for the group or specific position and to the judiciary committees of the house of representatives and the senate no later than October 15 of the year following the year in which the proposal was submitted.
- The group seeking peace officer status for the group or specific position may request members of the general assembly to present appropriate legislation to the general assembly during each of the two regular sessions that immediately succeed the date of the report required pursuant to subsection (2) of this section without having to comply again with the provisions of subsections (2) and (4) of this section. Bills introduced pursuant to this subsection (6) shall count against the number of bills to which members of the general assembly are limited by joint rule of the senate and the house of representatives. The general assembly shall not consider peace officer status of more than five positions or groups in any one session of the general assembly.
- This section is exempt from the provisions of section 24-1-136 (11), C.R.S., and the periodic reporting requirement of that section shall remain in effect until changed by the general assembly acting by bill.
Source: L. 2004: Entire part added, p. 1896, § 1, effective June 4.
16-2.5-202. P.O.S.T. board review of peace officer status.
- For a position, group, or political subdivision that received peace officer status after July 1, 2003, and did not go through the process described in section 16-2.5-201, the P.O.S.T. board shall review the peace officer authority of the position, group, or political subdivision.
- The P.O.S.T. board shall require the group that received the peace officer status or the group or political subdivision that oversees a position that received peace officer status to submit to the P.O.S.T. board the information required in section 16-2.5-201 (2).
- After receiving the information, the P.O.S.T. board shall prepare an analysis, evaluation, and recommendation of the peace officer status. The analysis, evaluation, and recommendation shall be based upon the criteria established in P.O.S.T. board rule.
- The P.O.S.T. board shall conduct a hearing concerning peace officer status for the group or the specific position, pursuant to the provisions of section 16-2.5-201 (4).
- The P.O.S.T. board shall submit a report to the group or political subdivision seeking to retain peace officer status, either for the group or for a specific position, and to the judiciary committees of the house of representatives and the senate no later than October 15 of the year following the year in which the P.O.S.T. board began the review. The report may include legislative recommendations.
Source: L. 2004: Entire part added, p. 1898, § 1, effective June 4.
16-2.5-203. Rules.
Pursuant to article 4 of title 24, C.R.S., the P.O.S.T. board shall promulgate rules establishing the criteria that shall be applied in determining whether to recommend peace officer status for a group or specific position as provided in section 16-2.5-201 (4).
Source: L. 2004: Entire part added, p. 1898, § 1, effective June 4.
PART 3 PEACE OFFICER-INVOLVED SHOOTINGS
16-2.5-301. Peace officer-involved shooting investigations - protocol.
- Each police department, sheriff's office, and district attorney within the state shall develop protocols for participating in a multi-agency team, which shall include at least one other police department or sheriff's office, or the Colorado bureau of investigation, in conducting any investigation, evaluation, and review of an incident involving the discharge of a firearm by a peace officer that resulted in injury or death. The law enforcement agencies participating need not be from the same judicial district.
- Each law enforcement agency shall post the protocol on its website or, if it does not have a website, make it publicly available upon request. The protocols required by this section shall be completed and implemented by December 31, 2015.
Source: L. 2015: Entire part added, (SB 15-219), ch. 210, p. 769, § 2, effective May 20.
Cross references: For the legislative declaration in SB 15-219, see section 1 of chapter 210, Session Laws of Colorado 2015.
PART 4 SUPPORT FOR PEACE OFFICERS INVOLVED IN A USE OF FORCE
16-2.5-401. Legislative declaration.
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The general assembly hereby declares that:
- Peace officers involved in incidents involving a shooting or fatal use of force should have access to immediate support;
- The experience of police and public safety mental health professionals and scientific research show that providing training, support services, and reintegration strategies can promote positive outcomes following such incidents; and
- The policies required by this part 4 provide for post-incident psychological interventions that are separate and distinct from any fitness-for-duty assessment or administrative or investigative procedures that may follow.
Source: L. 2019: Entire part added, (SB 19-091), ch. 127, p. 573, § 1, effective August 2.
16-2.5-402. Definitions.
As used in this part 4, unless the context otherwise requires:
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"Law enforcement agency" means:
- The Colorado state patrol created in section 24-33.5-201;
- The Colorado bureau of investigation created in section 24-33.5-401;
- The department of corrections created in section 24-1-128.5;
- The division of parks and wildlife within the department of natural resources created pursuant to section 24-1-124;
- A county sheriff's office;
- A municipal police department;
- A campus police department; or
- A town marshal's office.
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"Qualified mental health professional" means:
- A person certified and in good standing as a police and public safety psychologist by the American Board of Police and Public Safety Psychology, or its successor organization; or
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A person who:
- Is a licensed mental health clinician in good standing with his or her licensing board; and
- Has demonstrated to the law enforcement agency's satisfaction through a combination of training and experience that the person is trauma informed, experienced in responding to acute trauma events, and culturally competent in understanding law enforcement work, challenges, and stressors.
Source: L. 2019: Entire part added, (SB 19-091), ch. 127, p. 574, § 1, effective August 2.
16-2.5-403. Peace officer-involved shooting or fatal use of force policy.
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Each law enforcement agency shall develop and maintain a policy for supporting a peace officer who has been involved in a shooting or fatal use of force. An involved officer may include a peripheral officer present at the scene who reports an impact or requests supportive services. The policy must address, at a minimum:
- Pre-incident preparation, including training and education about both normal and problematic post-traumatic reactions commonly associated with officer-involved shootings and critical incidents;
- Protocols to ensure an involved officer's physical and psychological safety at the scene and following the incident;
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The provision of post-incident services to an involved officer, and the ability to extend post-incident services to an officer's family and significant others when warranted. The agency shall consider including in the policy, to the extent possible given the agency's size and resources:
- At least one confidential post-incident intervention with a qualified mental health professional in a timely manner following the incident, including through telehealth services;
- Ongoing confidential mental health services from a qualified mental health professional as needed, including through telehealth services; and
- Some form of peer support, including agency peer support or online or telehealth peer support;
- Guidelines for temporary leave or appropriate duty reassignment as agreed upon by an involved officer and the agency to allow an involved officer to receive services and manage the impact of the incident on an involved officer and an involved officer's family and significant others; and
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Guidelines and procedures for an officer's return to duty, including ongoing support and services available to an involved officer. The agency shall consider including in the policy, to the extent possible given the agency's size and resources:
- A reintegration plan that considers having an officer return to the scene of the incident if needed, fire his or her weapon at the range, and participate in a graded reentry with a partner; and
- Ongoing supportive mental health services, including confidential follow-up by a qualified mental health professional, either in person or through telehealth services.
- The policies required by this section must be completed by January 1, 2020. Each law enforcement agency shall review the policy on a biennial basis and, if necessary, update the policy to reflect current best practices and available resources.
- In developing, updating, and implementing the policies required by this section, law enforcement agencies are encouraged to consult with and use the resources available through the International Association of Chiefs of Police, the National Sheriffs' Association, the Fraternal Order of Police, the American Board of Police and Public Safety Psychology, the peace officers standards and training board created in section 24-31-302, and ResponderStrong, or their successor organizations, and other organizations providing similar resources and support.
Source: L. 2019: Entire part added, (SB 19-091), ch. 127, p. 574, § 1, effective August 2.
ARTICLE 2.7 MISSING PERSON REPORTS - UNIDENTIFIED HUMAN REMAINS
Section
16-2.7-101. Definitions.
As used in this article, unless the context otherwise requires:
- "DNA" means deoxyribonucleic acid.
- "Missing person" means a person whose whereabouts are unknown and whose safety or welfare is the subject of concern.
Source: L. 2006: Entire article added, p. 394, § 1, effective April 6.
16-2.7-102. Missing person reports - acceptance.
- Any person with relevant, credible information suggesting that a person is missing may make a missing person report to a law enforcement agency.
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A law enforcement agency shall accept without delay a missing person report that is submitted in person if:
- The missing person resides, or was last known to reside, within the jurisdiction of the law enforcement agency and the missing person's last-known location is the missing person's residence or his or her location is unknown; or
- There is credible information indicating that the missing person was last believed to be within the jurisdiction of the law enforcement agency.
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Each law enforcement agency is encouraged to accept a missing person report submitted by telephone or by electronic or other media to the extent that:
- The report meets the conditions of paragraph (a) or (b) of subsection (2) of this section; and
- Acceptance of the report is consistent with law enforcement policies or practices.
- A law enforcement agency shall not refuse to accept a missing person report on the basis that the missing person has not yet been missing for any length of time.
- Notwithstanding the provisions of subsections (2) and (3) of this section, a law enforcement agency is not required to accept a missing person report if the person is the subject of a missing person report under investigation by another law enforcement agency within this state.
Source: L. 2006: Entire article added, p. 394, § 1, effective April 6.
16-2.7-103. Missing person reports - response.
- Upon receiving a report of a missing person, a law enforcement agency shall assess the information received from the reporting person and other available information. The law enforcement agency shall then determine the best course of action based on the circumstances.
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- If the missing person is eighteen years of age or older and has allegedly been missing for twenty-four hours or more, the appropriate course of action includes entry of relevant information into state and national databases and appropriate communications with other law enforcement agencies that may assist in locating the missing person.
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- If the missing person is under eighteen years of age, the law enforcement agency shall, within twenty-four hours after receiving the report, notify the Colorado bureau of investigation pursuant to section 24-33.5-415.1 (3), C.R.S.; or
- If the missing person is under eighteen years of age and under the legal custody of the state department of human services or a county department of human or social services, the law enforcement agency shall, within twenty-four hours after receiving notification pursuant to section 19-1-115.3, C.R.S., notify the Colorado bureau of investigation for transmission to the federal bureau of investigation for entry into the national crime information center database.
Source: L. 2006: Entire article added, p. 395, § 1, effective April 6. L. 2015: Entire section amended, (HB 15-1078), ch. 41, p. 101, § 2, effective January 1, 2016.
16-2.7-104. Unidentified human remains - reporting - DNA samples.
- Except as provided in section 24-80-1303, C.R.S., with regard to anthropological investigations, a person who has custody of unidentified human remains shall immediately notify the coroner or medical examiner of the county in which the remains are located and the sheriff, police chief, or land managing agency official in accordance with section 24-80-1302 (1), C.R.S.
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If a coroner or medical examiner takes legal custody of unidentified human remains pursuant to section 24-80-1302 (2), C.R.S., or section 30-10-606 (1.2), C.R.S., the coroner or medical examiner shall make reasonable attempts to identify the human remains. These attempts may include, but need not be limited to, obtaining:
- Photographs of the human remains prior to an autopsy;
- Dental or skeletal X rays of the human remains;
- Photographs of items found with the human remains;
- Fingerprints from the human remains;
- Samples of tissue suitable for DNA typing from the human remains;
- Samples of whole bone or hair from the human remains suitable for DNA typing.
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If a coroner or medical examiner takes legal custody of unidentified human remains pursuant to section 24-80-1302 (2), C.R.S., or section 30-10-606 (1.2), C.R.S., the coroner or medical examiner shall:
- Enter information concerning the physical appearance and structure of the unidentified human remains, including DNA typing information, into the national crime information center database; or
- Work with law enforcement officials to ensure that information concerning the physical appearance and structure of the unidentified human remains, including DNA typing information, is entered into the national crime information center database.
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A coroner or medical examiner shall neither dispose of nor engage in actions that will materially affect unidentified human remains before the coroner or medical examiner:
- Obtains from the unidentified human remains samples suitable for DNA identification and archiving, if possible;
- Obtains photographs of the unidentified human remains; and
- Exhausts all other appropriate steps for identification of the human remains.
- Until all available information concerning the physical appearance and structure of unidentified human remains is entered into the national crime information center database, cremation of unidentified human remains is prohibited.
Source: L. 2006: Entire article added, p. 395, § 1, effective April 6.
ARTICLE 3 ARREST - SEARCHES AND SEIZURES
Editor's note: This article was repealed and reenacted in 1972. For historical information concerning the repeal and reenactment, see the editor's note before the article 1 heading.
Section
PART 1 AUTHORITY OF PEACE OFFICER TO MAKE AN ARREST
16-3-101. Arrest - when and how made.
- An arrest may be made on any day and at any time of the day or night.
- All necessary and reasonable force may be used in making an arrest.
- All necessary and reasonable force may be used to effect an entry upon any building or property or part thereof to make an authorized arrest.
Source: L. 72: R&RE, p. 197, § 1. C.R.S. 1963: § 39-3-101.
ANNOTATION
Persons and evidence may be protected. Police officers can, when in hot pursuit and when confronted with exigent circumstances, act to protect themselves and to prevent the destruction of evidence or injury to another. People v. Vaughns, 175 Colo. 369 , 489 P.2d 591 (1971) (decided prior to enactment of § 39-3-101 , C.R.S. 1963, the earliest source of § 16-3-101 ).
16-3-102. Arrest by peace officer.
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A peace officer may arrest a person when:
- He has a warrant commanding that such person be arrested; or
- Any crime has been or is being committed by such person in his presence; or
- He has probable cause to believe that an offense was committed and has probable cause to believe that the offense was committed by the person to be arrested.
Source: L. 72: R&RE, p. 198, § 1. C.R.S. 1963: § 39-3-102. L. 77: (1)(c) amended, p. 850, § 1, effective May 20.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "Criminal Law", see 32 Dicta 409 (1955). For article, "Highlights of the 1955 Legislative Session -- Criminal Law and Procedure", see 28 Rocky Mt. L. Rev. 69 (1955). For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For comment, "Payton v. New York: The Supreme Court Reverses the Common Law Warrantless Arrest Requirements", see 58 Den. L.J. 197 (1980). For article, "The Demise of the Aquilar-Spinelli Rule: A Case of Faulty Reception", see 61 Den. L.J. 431 (1984). For comment, "People v. Thomas: Furtive Gestures as an Element of Reasonable Suspicion -- The Ongoing Struggle to Determine a Standard", see 61 Den. L.J. 579 (1984). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with stops and arrests, see 62 Den. U.L. Rev. 165 (1985). For article, "Using Local Police Powers to Protect the Environment", see 24 Colo. Law. 1063 (1995).
Annotator's note. Since § 16-3-102 is similar to repealed § 39-2-20, C.R.S. 1963, and CSA, C. 48, § 432, relevant cases construing those provisions have been included in the annotations to this section.
Unlawful arrest is not official act. If an arrest is not a lawful one, if it is made under a void warrant or without a warrant in a case where a warrant is required, or if it is not made in such circumstances as justify the arrest without a warrant, the officer is not acting in his official capacity, either by virtue of, or under color of, office; and they are merely his private or personal acts for which his sureties are not liable. Johnson v. Enlow, 132 Colo. 101 , 286 P.2d 630 (1955).
And question is for jury. Where there is a dispute in the evidence as to whether there was in fact an unlawful arrest, the question is for the jury. McDaniel v. People, 179 Colo. 153 , 499 P.2d 613, cert. denied, 409 U.S. 1060, 93 S. Ct. 558, 34 L. Ed. 2d 512 (1972).
The probable cause requirement is applicable whether the arrest is made with or without a warrant. People v. Hoinville, 191 Colo. 357 , 553 P.2d 777 (1976).
An arrest with or without a warrant must stand on firmer ground than mere suspicion. People v. Weinert, 174 Colo. 71 , 482 P.2d 103 (1971).
Applied in People v. Apodaca, 38 Colo. App. 395, 561 P.2d 351 (1976), aff'd, 194 Colo. 1324 , 571 P.2d 1109 (1977); People v. Conner, 195 Colo. 525 , 579 P.2d 1160 (1978); People v. Lott, 197 Colo. 78 , 589 P.2d 945 (1979); People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979); People v. Smith, 620 P.2d 232 ( Colo. 1980 ); People v. Eichelberger, 620 P.2d 1067 ( Colo. 1980 ); People v. Wolf, 635 P.2d 213 ( Colo. 1981 ); People v. Bustam, 641 P.2d 968 ( Colo. 1982 ); People v. Roybal, 655 P.2d 410 ( Colo. 1982 ); People v. Hamilton, 666 P.2d 152 ( Colo. 1983 ); People v. Florez, 680 P.2d 219 ( Colo. 1984 ).
II. ARREST PURSUANT TO WARRANT.
Even though an arrest warrant is invalid, the arrest may be upheld if the arresting officer had probable cause to believe that an offense had been committed by the defendant apart from the complaint and the officer was confronted with exigent circumstances. People v. Moreno, 176 Colo. 488 , 491 P.2d 575 (1971).
III. WARRANTLESS ARREST.
A. In General.
Law reviews. For note, "The Evolution of the Police Officer's Right to Arrest Without a Warrant in Colorado", see 43 Den. L.J. 366 (1966).
Annotator's note. For further annotations concerning warrantless arrests, see § 7 of art. II, Colo. Const.
Authority to arrest outside territorial jurisdictions. All Colorado police officers have the power to make arrests, even when outside of their territorial jurisdictions, when a crime has been committed in their presence. People v. Bloom, 195 Colo. 246 , 577 P.2d 288 (1978).
A peace officer has authority to make arrests without a warrant of persons committing or attempting to commit offenses in his presence, whether the offense be a felony or a misdemeanor, of persons who have committed felonies out of his presence, of persons he has reasonable cause to believe guilty of a felony that has been committed, and of persons charged, upon reasonable cause, with having committed a felony. Johnson v. Enlow, 132 Colo. 101 , 286 P.2d 630 (1955).
An officer may make an arrest for violation of a misdemeanor without a warrant if the officer has probable cause or reasonable grounds to believe that an offense has been committed and probable cause or reasonable grounds to believe that a certain individual committed that offense. Beyer v. Young, 32 Colo. App. 273, 513 P.2d 1086 (1973).
Only probable cause and exigent circumstances will excuse statutory warrant requirements. People v. Henry, 195 Colo. 309 , 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed. 2d 419 (1978).
Absent exigent circumstances, it is necessary to obtain arrest warrant in order to justify entry into private home to make an arrest. People v. Williams, 200 Colo. 187 , 613 P.2d 879 (1980).
Even where probable cause exists. Although police officers have probable cause to believe a suspect committed a crime, nevertheless they may not enter a private residence to effect an arrest in the absence of exigent circumstances. McCall v. People, 623 P.2d 397 (Colo. 1981).
Exigent circumstances encompasses compelling need for immediate police action. The doctrine of exigent circumstances encompasses those situations where, due to an emergency, the compelling need for immediate police action militates against the strict adherence to the warrant requirement. McCall v. People, 623 P.2d 397 (Colo. 1981).
People's burden to rebut presumption of unconstitutional arrest without warrant. An arrest without a warrant is presumed to have been unconstitutional, and the state has the burden of rebutting that presumption by showing both that the arrest was supported by probable cause and that it fell within a recognized exception to the warrant requirement. People v. Burns, 200 Colo. 387 , 615 P.2d 686 (1980).
The lawfulness of an arrest without a warrant by state officers for a state offense must be determined by state law. People v. Navran, 174 Colo. 222 , 483 P.2d 228 (1971).
Remedy for violation of arrest warrant requirement is the exclusion of evidence seized which is tainted as "fruit of the poisonous tree". People v. Henry, 195 Colo. 309 , 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed. 2d 419 (1978).
Officer not liable for false arrest and false imprisonment. Where police officer had both probable cause to believe that an offense had been committed and that the plaintiff was the person who had committed it, he was not civilly liable for false arrest and false imprisonment. Beyer v. Young, 32 Colo. App. 273, 513 P.2d 1086 (1973).
Failure of deputy to obtain arrest warrant was justified. People v. Fratus, 187 Colo. 52 , 528 P.2d 392 (1974).
Voluntary consent by occupant may constitute valid waiver of warrant requirement. A voluntary consent by an occupant of premises authorizing entry by the police for the purpose of effecting an arrest inside the home may constitute, under appropriate circumstances, a valid waiver of the warrant requirement. McCall v. People, 623 P.2d 397 (Colo. 1981).
Entry into home by preconceived deception lacks consent. Where entry into the home is gained by a preconceived deception as to purpose, consent in the constitutional sense is lacking. McCall v. People, 623 P.2d 397 (Colo. 1981).
Appearance in open doorway may excuse warrant. Where defendant was arrested while standing in the open doorway of his apartment, the warrant requirement was excused. People v. Burns, 200 Colo. 387 , 615 P.2d 686 (1980).
When detention by police permissible. The police may detain and require identification of a person if they have a reasonable suspicion, based on objective facts, that the person is involved in criminal conduct. People v. Archuleta, 616 P.2d 977 (Colo. 1980).
Applied in Stubert v. County Court, 163 Colo. 535 , 433 P.2d 97 (1967).
B. Commission of Crime.
This section permits a police officer to arrest a person who has committed a crime in the officer's presence. Section 16-2-201 does not limit that authority. An officer may arrest when a crime occurs in his or her presence. When that crime is a class two petty offense, the arresting officer may, pursuant to § 16-2-201, either take the arrested suspect before a judge or release the suspect after issuing a penalty assessment. Police compliance with both statutes is achieved because, even though they conduct a full custodial arrest and search, police "may" still release the offender without taking him before a judge. A custodial arrest and a discretionary release are not mutually exclusive under § 16-2-201. People v. Triantos, 55 P.3d 131 (Colo. 2002).
Arrest not limited to where crime has in fact been committed. The theory that under this section a lawful arrest without a warrant cannot be made unless a crime has in fact been committed and that the person arrested committed it is without merit. Van Camp v. Gray, 440 F.2d 777 (10th Cir. 1971).
However, a court must determine whether the facts available to a reasonably cautious officer at the moment of arrest would warrant his belief that an offense has been or is being committed. People v. Navran, 174 Colo. 222 , 483 P.2d 228 (1971).
Warrant is unnecessary where breach of peace witnessed. Schindelar v. Michaud, 411 F.2d 80 (10th Cir.), cert. denied, 396 U.S. 956, 90 S. Ct. 426, 24 L. Ed. 2d 420 (1969).
C. Probable Cause.
This section permits warrantless arrests by an officer when a criminal offense had in fact been committed and the officer had reasonable grounds for believing the person to be arrested had committed the offense. People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971); People v. Pickett, 194 Colo. 178 , 571 P.2d 1078 (1977); People v. Saars, 196 Colo. 294 , 584 P.2d 622 (1978).
And such is "constitutional". This section, which authorizes an officer to make an arrest without a warrant when a criminal offense has in fact been committed and he has reasonable grounds for believing that the person to be arrested has committed it, is consonant with the case law of the United States supreme court and the supreme court of Colorado. People v. Nelson, 172 Colo. 456 , 474 P.2d 158 (1970).
The terms "probable cause" and "reasonable grounds" are substantially equivalent in meaning. Gonzales v. People, 156 Colo. 252 , 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965); People v. Bueno, 173 Colo. 69 , 475 P.2d 702 (1970); People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971); Glass v. People, 177 Colo. 267 , 493 P.2d 1347 (1972).
And so this section authorizing an arrest without a warrant is satisfied if the arresting officer has probable cause or reasonable grounds to believe that a crime has been committed and that the person arrested committed it. Van Camp v. Gray, 440 F.2d 777 (10th Cir. 1971).
For a warrantless arrest, officers must have probable cause to believe not only that an offense had been committed, but that the person to be arrested had committed it. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975); People v. Hoinville, 191 Colo. 357 , 553 P.2d 777 (1976).
Probable cause is the touchstone for measuring the right to arrest without a warrant. People v. Fratus, 187 Colo. 52 , 528 P.2d 392 (1974).
And valid arrest by a peace officer must be supported by probable cause. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
Violation of municipal ordinance included. Since the violation of a municipal ordinance is a criminal offense, then as a matter of law, where the police have reasonable ground for believing that defendants have committed such offense, an attempted arrest is altogether lawful and the police would be derelict in the performance of their duty if they refuse to act. Boyer v. Elkins, 154 Colo. 294 , 390 P.2d 460, appeal dismissed, 379 U.S. 47, 85 S. Ct. 208, 13 L. Ed. 2d 183 (1964).
Flight does not solely justify warrantless arrest. Where the arresting officer knew that a burglary had been committed, his dispatcher had told him of the burglars' purported return, and when he arrived back at the scene he observed the hasty departure of a man who had been talking with the son-in-law, flight may legitimately give rise to suspicion, and evidence of flight may be admissible at trial to show consciousness of guilt, but defendant's running was not in and of itself sufficient to justify a warrantless arrest. People v. Bates, 190 Colo. 291 , 546 P.2d 491 (1976).
Exigent circumstances. A police officer may make a warrantless arrest where he has probable cause to believe that the suspect has committed a crime and where the officer is confronted by exigent circumstances. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).
Exigent circumstances obviously exist when suspects are speeding from the scene of the crime. To require a warrant would impose an impracticable burden. People v. Cox, 190 Colo. 326 , 546 P.2d 956 (1976).
Exigent circumstances sufficient to justify warrantless arrest. People v. Litsey, 192 Colo. 19 , 555 P.2d 974 (1976).
Exigent circumstances sufficient to justify warrantless entry into home to make arrest. People v. Williams, 200 Colo. 187 , 613 P.2d 879 (1980).
Public security may outweigh warrant preference. When immediate police action is essential to protect the public safety, the warrant preference expressed by this section must, and does, give way to the public security. People v. Henry, 195 Colo. 309 , 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed. 2d 419 (1978).
Failure to obtain arrest warrant justified whenever circumstances require immediate action to protect the public safety; this includes the situation where the police are faced with the choice of arresting a suspect without a warrant or allowing him to escape. People v. Cardenas, 42 Colo. App. 61, 592 P.2d 1348 (1979).
Fact that officers may have probable cause to arrest someone else is of no consequence, for, where a defendant is arrested without a warrant, the burden of proving the existence of probable cause in defendant's case is on the prosecution. Mora v. People, 178 Colo. 279 , 496 P.2d 1045 (1972).
And physical presence with others, in and of itself, does not provide probable cause to arrest, for guilt by association has never been an acceptable rationale. Mora v. People, 178 Colo. 279 , 496 P.2d 1045 (1972).
The mere association with one who commits or has committed crimes, standing alone, does not amount to probable cause for arrest. People v. Crespin, 635 P.2d 918 (Colo. App. 1981).
Nor where one merely changes his direction upon seeing police. Where officers already had one suspect in their car and were questioning him when defendant approached, and at a distance of approximately one block from unmarked police car hesitated, then turned and walked the other way, disappearing around a corner, such circumstances did not show probable cause to arrest, especially where there was nothing in the testimony of the officer to indicate that he considered defendant a suspect in the crime in question or a suspect in any other known criminal act. People v. Bueno, 173 Colo. 69 , 475 P.2d 702 (1970).
Probable cause deals with the probability that a crime has been or is being committed. People v. Martinez, 173 Colo. 17 , 475 P.2d 340 (1970).
The burden of proving probable cause in justification of a warrantless arrest is upon the state. People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971); People v. Vaughns, 175 Colo. 369 , 489 P.2d 591 (1971); People v. Chacon, 177 Colo. 368 , 494 P.2d 79 (1972).
But a belief beyond a reasonable doubt is not required. People v. Martinez, 173 Colo. 17 , 475 P.2d 340 (1970).
Rather, probable cause deals with probabilities which are not technical, but rather the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Gonzales v. People, 156 Colo. 252 , 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965); Lavato v. People, 159 Colo. 223 , 411 P.2d 328 (1966); People v. Bueno, 173 Colo. 69 , 475 P.2d 702 (1970); People v. Clark, 173 Colo. 129 , 476 P.2d 564 (1970); People v. Weinert, 174 Colo. 71 , 482 P.2d 103 (1971); People v. Saars, 196 Colo. 294 , 584 P.2d 622 (1978).
Consequently, probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Gonzales v. People, 156 Colo. 252 , 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965); Lavato v. People, 159 Colo. 223 , 411 P.2d 328 (1966); People v. Bueno, 173 Colo. 69 , 475 P.2d 702 (1970); People v. Weinert, 174 Colo. 71 , 482 P.2d 103 (1971); People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971); Glass v. People, 177 Colo. 267 , 493 P.2d 1347 (1972); People v. Williams, 186 Colo. 72 , 525 P.2d 463 (1974); People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).
Probable cause exists where the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution to believe an offense has been or is being committed. People v. Rueda, 649 P.2d 1106 ( Colo. 1982 ); People v. Martinez, 689 P.2d 653 (Colo. App. 1984).
Probable cause arises only where the facts and circumstances within the officer's knowledge suffice to warrant a reasonably prudent person in the belief that the person to be arrested committed or is committing a criminal offense. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
Although precise point of officer's belief cannot be determined. If the circumstances at the time of an arrest are sufficient to justify a finding that probable cause existed, the court will so find even though the precise point at which the officer's hunch became suspicion and then progressed to reasonable belief is impossible to determine with certainty. Lanford v. People, 176 Colo. 109 , 489 P.2d 210 (1971).
This level of probability must exist at the actual moment of arrest, and must be based on known facts, not on mere rumor or conjecture. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
Suspicion and rumor alone would fall short of probable cause. Lucero v. People, 165 Colo. 315 , 438 P.2d 693, cert. denied, 393 U.S. 893, 89 S. Ct. 217, 21 L. Ed. 2d 173 (1968); People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971).
It is basic that an arrest without a warrant must stand upon firmer ground than suspicion, though the arresting officer need not have in hand evidence which would suffice to convict. People v. Vaughns, 182 Colo. 328 , 513 P.2d 196 (1973); People v. Gonzales, 186 Colo. 48 , 525 P.2d 1139 (1974).
Mere suspicion does not constitute probable cause for a warrantless arrest. People v. Montoya, 189 Colo. 106 , 538 P.2d 1332 (1975).
Information relied upon to satisfy a warrantless arrest is sufficient if it warrants a reasonably cautious and prudent police officer in believing, in light of his training and experience, that an offense has been committed and that the person arrested probably committed it. However, it need not be of that quality and quantity necessary to satisfy beyond a reasonable doubt. People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971).
All evidence within knowledge of arresting officer may be considered. In assessing probable cause to arrest without a warrant, all evidence within the knowledge of the arresting officer may be considered even though it may not be competent evidence at trial. People v. Gonzales, 186 Colo. 48 , 525 P.2d 1139 (1974).
As well as officer's training and experience. Whether or not the arresting officer reasonably believed a crime had been or was being committed such as to make a warrantless arrest is to be considered in light of the officer's training and experience. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).
Same standards for determining probable cause for search or arrest. The same constitutional standards for determining probable cause apply whether a search or an arrest is being effected by police officers, and whether or not the officers have obtained a judicially authorized warrant to arrest or search. People v. Vaughns, 182 Colo. 328 , 513 P.2d 196 (1973).
Probable cause standards applicable with or without warrant. Probable cause standards for searches or arrests are applicable whether or not the police have obtained a warrant. People v. Burns, 200 Colo. 387 , 615 P.2d 686 (1980).
Probable cause is measured by facts of particular case. The quantum of information which constitutes probable cause for a warrantless arrest must be measured by the facts of the particular case. People v. Vaughns, 182 Colo. 328 , 513 P.2d 196 (1973).
The circumstances in each case of warrantless arrest must be considered to determine the reasonableness of police action and the existence of probable cause. People v. Fratus, 187 Colo. 52 , 528 P.2d 392 (1974).
Even if the information received by an officer from an informer is hearsay, such information from a reliable informer corroborated by the officers' own observations is sufficient to support a reasonable belief that a crime is being committed. Gonzales v. People, 156 Colo. 252 , 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965).
For the reasonably trustworthy information relied on may be based upon hearsay and need not be evidence sufficiently competent for admission at the guilt-finding process. People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971).
In fact, either heavy or almost exclusive reliance on hearsay does not destroy the validity of an arrest without a warrant. Lucero v. People, 165 Colo. 315 , 438 P.2d 693, cert. denied, 393 U.S. 893, 89 S. Ct. 217, 21 L. Ed. 2d 173 (1968).
The "Aguilar" test for determining probable cause for arrest based upon information received from a police informer is as follows: First, the officer must know the underlying circumstances from which the informant concluded that a crime was being or had been committed by the accused; and second, there must be underlying circumstances from which the officer concluded that information received was reliable. (Based upon Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964)). People v. Martinez, 173 Colo. 17 , 475 P.2d 340 (1970).
The test to measure probable cause to arrest, which is based upon information provided by a confidential informant, is met by setting forth the underlying circumstances which established that the informant had a basis in fact for his information and also provided facts which supported the reliability of the informant. People v. Fratus, 187 Colo. 52 , 528 P.2d 392 (1974).
First prong of "Aguilar" met. Where informer was not just relying on suspicion or rumor but stated with particularity details of stolen check, such as, amount, payee, maker, and endorsement, and also stated that defendant had talked with him, showed him the check, and told him of defendant's own attempt to cash it, these underlying circumstances were sufficient to lead a reasonable person to believe that a crime had been or was being committed, as they met the first prong of the "Aguilar test" for determining probable cause for arrest. People v. Martinez, 173 Colo. 17 , 475 P.2d 340 (1970).
And the second prong of the test was met by virtue of the following evidence: (1) That the informant had previously given reliable information to police; (2) verification by the officer that the stolen check was missing by talking to the payee before defendant's arrest; (3) defendant was riding in the same car described by the informant; and (4) prior to arrest defendant was seen by the officer putting an envelope in a small paper sack. Hence, when such evidence was considered as a whole, it was sufficient for the officer to reasonably believe that informant's information was reliable. People v. Martinez, 173 Colo. 17 , 475 P.2d 340 (1970).
Totality of circumstances test. Since the Aguilar-Spinelli two-pronged test for determining probable cause has been abandoned by the United States supreme court in Illinois v. Gates (462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)) in favor of the totality of the circumstances test, such test was used by the court to make the probable cause determination. People v. Gallegos, 680 P.2d 1294 (Colo. App. 1983); People v. Sullivan, 680 P.2d 851 (Colo. App. 1983).
No factor alone is conclusive in establishing exigent circumstances necessary for a warrantless arrest, as the totality of the circumstances must be examined. People v. Henry, 195 Colo. 309 , 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed. 2d 419 (1978).
Informant's information must be reliable. When a tip is received from a confidential informant, there must also be information supplied which establishes the credibility of the informant or indicates that the information was reliable. People v. Hubbard, 184 Colo. 225 , 519 P.2d 951 (1974).
Uncorroborated accusation by an informant whose identity and reliability remains untested cannot constitute probable cause. People v. Williams, 186 Colo. 72 , 525 P.2d 463 (1974).
When the source of the information is a citizen-informant who was an eyewitness to the crime and is identified, the information is presumed to be reliable, and the prosecution is not required to establish either the credibility of the informant or the reliability of his information. People v. Hubbard, 184 Colo. 225 , 519 P.2d 951 (1974); People v. Saars, 196 Colo. 294 , 584 P.2d 622 (1978).
Presumption as to trustworthiness of citizen-informant. Although one who qualifies as a "citizen-informant" is presumed trustworthy, this presumption only relates to the likelihood of truthfulness, not to the weight to be accorded the information provided. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
Report to authorities does not make uncorroborated speculation probable. Uncorroborated speculation and conjecture by an inexperienced citizen is not transformed into probability by a report to the authorities. Different standards govern observations by experienced peace officers. People v. Severson, 39 Colo. App. 45, 561 P.2d 373 (1977).
Where there is conflicting evidence as to several critical points regarding an informant's information, the prerogative for deciding whether or not probable cause for arrest without a warrant is established is within the domain of the trial judge and, absent a showing of abuse of this prerogative, a reviewing court will not overturn a trial court's ruling. People v. Trujillo, 179 Colo. 428 , 500 P.2d 1176 (1972).
Furthermore, details of the crime given to investigating officers by the victim of the crime can be relied upon by the officers and can furnish the basis for their conclusion that a crime had been committed and that certain described persons probably committed it. People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971).
And where, after investigation, an officer, by his own knowledge, knows that an offense has been committed and corroboration of the suspect's name is obtained by identifying photographs, the officer has probable cause for arrest without a warrant. Lucero v. People, 165 Colo. 315 , 438 P.2d 693, cert. denied, 393 U.S. 893, 89 S. Ct. 217, 21 L. Ed. 2d 173 (1968).
But it is not necessary for the arresting officer to know of the reliability of the informer or to be himself in possession of information sufficient to constitute probable cause, if he acts upon the direction of, or as a result of, communication with a brother officer or that of another police department and provided the police as a whole are in possession of information sufficient to constitute probable cause to make the arrest. People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971).
Thus, a police officer has the right to rely upon information relayed to him by his fellow law enforcement officers. People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971).
As the fellow-officer rule permits a police officer to rely upon and accept information provided by another officer in determining whether there is probable cause for warrantless arrest. People v. Vaughns, 175 Colo. 369 , 489 P.2d 591 (1971).
So when police officers are informed by a telephone call from officers in another jurisdiction from which a package of contraband was sent, the officers have probable cause to arrest a person without a warrant when he claims the package. People v. Hankin, 179 Colo. 70 , 498 P.2d 1116 (1972).
All officers at arrest need not be informed. Where the officer who made the arrest had talked to the informant and had knowledge of all of the facts comprising probable cause, whether another officer who was present at the arrest was aware of the information given by the informant is immaterial. People v. Crespin, 635 P.2d 918 (Colo. App. 1981).
Illegal arrest cannot be justified. Neither the fellow-officer rule nor the validity of an exchange of information between police officers can justify an otherwise illegal arrest. People v. Hubbard, 184 Colo. 225 , 519 P.2d 951 (1974); People v. Saars, 196 Colo. 294 , 584 P.2d 622 (1978).
By claiming package, defendant becomes an active participant. Where officers had probable cause to believe that a course of criminal conduct involving packaged contraband had been initiated in another state in which defendant was likely to become involved and defendant appears to claim the package, then, under the circumstances, the defendant became an active participant in the criminal conduct for which his arrest could be lawfully effected without a warrant. People v. Hively, 173 Colo. 485 , 480 P.2d 558 (1971).
Moreover, evidence in plain view can be relied on. Where police officers are in a place where they have a right to be, they are not required to close their eyes to evidence in plain view, and the sight of such evidence can properly form the basis for a determination of probable cause to make an arrest. People v. McGahey, 179 Colo. 401 , 500 P.2d 977 (1972); Avalos v. People, 179 Colo. 88 , 498 P.2d 1141 (1972).
And in a situation involving an "arrangement" by the police to purchase drugs, where an officer, by prearranged signal, flashed his brake lights to indicate to other officers hiding nearby that the deal was completed, whereupon the officers approached a vehicle which had previously pulled up to the scene and ordered its driver to come out, and where, after arresting defendant as he stepped from the vehicle, the officer noticed that a package on the front seat was in plain view, which he seized and which later proved to contain additional quantities of illegal drugs, then, under the circumstances, the officer had probable cause to arrest the driver. People v. Clark, 173 Colo. 129 , 476 P.2d 564 (1970).
Also, probable cause existed where marijuana seen while validly checking registration in vehicle. Where an officer detained defendant for an admitted traffic violation and while performing his duties in this regard inquired for the auto registration, which by statute must be either in the possession of the operator or in the vehicle, then, upon the defendant's failure to produce the registration, the officer had the right to look in the vehicle for the registration to inspect it, and when at this time he observed a plastic bag containing what he suspected was, and which turned out to be, marijuana, the officer had probable cause to believe a crime was being committed in his presence and had the right and duty to make an arrest. Marquez v. People, 168 Colo. 219 , 450 P.2d 349 (1969).
However, facts must be available prior to arrest. The arrest of a defendant can only be justified by the information available to the officer immediately prior to the arrest, and the discovery of contraband on the person of one who is unlawfully arrested does not validate an arrest. People v. Nelson, 172 Colo. 456 , 474 P.2d 158 (1970).
Hence, where the mistaken suspicion of an informant on one matter triggered a police investigation which discovered other illegal matters during a search, the officer had no knowledge of any offense being committed in his presence which would have justified the arrest and he had had no report of any crime having been committed in the area by anyone resembling the defendant, and so, since the courts have a responsibility to guard against police conduct which is overbearing or harassing in order to protect the constitutional rights of the individual, the arrest of the defendant was "unreasonable" when tested by the need to arrest under the exigencies of the situation against the invasion of privacy which the arrest entailed, and any evidence obtained was not admissible. People v. Nelson, 172 Colo. 456 , 474 P.2d 158 (1970).
Probable cause for arrest without warrant held to exist. Gonzales v. People, 156 Colo. 252 , 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965)(marijuana); People v. Bengston, 174 Colo. 131 , 482 P.2d 989 (1971)(marijuana); People v. Ramey, 174 Colo. 250 , 483 P.2d 374 (1971); People v. Vaughns, 175 Colo. 369 , 489 P.2d 591 (1971); People v. Vigil, 175 Colo. 421 , 489 P.2d 593 (1971)(marijuana); Lanford v. People, 176 Colo. 109 , 489 P.2d 210 (1971); Hafer v. People, 177 Colo. 52 , 492 P.2d 847 (1972); People v. Duncan, 179 Colo. 253 , 500 P.2d 137 (1972); People v. Lucero, 182 Colo. 39 , 511 P.2d 468 (1973); People v. Vaughns, 182 Colo. 328 , 513 P.2d 196 (1973); People v. Duleff, 183 Colo. 213 , 515 P.2d 1239 (1973)(marijuana); People v. Marquez, 183 Colo. 231 , 516 P.2d 1134 (1973); People v. Hubbard, 184 Colo. 225 , 519 P.2d 951 (1974); People v. Cruz, 186 Colo. 295 , 526 P.2d 1315 (1974); People v. Crespin, 635 P.2d 918 (Colo. App. 1981).
If probable cause for arrest does in fact exist, the officer is entitled to make a reasonable search incident to arrest. People v. Bueno, 173 Colo. 69 , 475 P.2d 702 (1970); People v. Hively, 173 Colo. 485 , 480 P.2d 558 (1971); People v. Nanes, 174 Colo. 294 , 483 P.2d 958 (1971); People v. Hankin, 179 Colo. 70 , 498 P.2d 1116 (1972).
And may seize evidence. In a search conducted incident to warrantless arrest, the arresting officers have authority to search for instrumentalities or evidence of the specific crime for which they had probable cause to arrest. People v. Valdez, 182 Colo. 80 , 511 P.2d 472 (1973).
If probable cause to arrest is present, evidence can be seized as incident to a lawful arrest. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).
An officer conducting a reasonable search, incident to a valid arrest, may seize contraband or articles, the possession of which gives the police officer reason to believe a crime has been committed, even though such articles do not relate to the crime for which the defendant was initially arrested. People v. Ortega, 181 Colo. 223 , 508 P.2d 784 (1973).
Following Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), the search incident to arrest exception does not apply in this case, and the search of the passenger compartment of defendant's car was unconstitutional. Because statements defendant made following the discovery of drugs were the fruit of the unlawful search, the evidentiary use of the statements must also be suppressed. Perez v. People, 231 P.3d 957 (Colo. 2010).
Probable cause for arrest for burglary without warrant not shown. People v. Trujillo, 179 Colo. 428 , 500 P.2d 1176 (1972).
Where the court finds that probable cause for arrest without a warrant is not shown, the subsequent search and seizures are invalid. People v. Trujillo, 179 Colo. 428 , 500 P.2d 1176 (1972).
Evidence obtained subsequent to illegal arrest need not be suppressed, if the taint of the official misconduct has been purged. People v. Henry, 195 Colo. 309 , 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed. 2d 419 (1978).
When persons are arrested for minor traffic violations or minor municipal offenses, the instrumentalities or evidence of such crimes is minimal or nonexistent, and thus the scope of a search incident to such a warrantless arrest would be quite limited. People v. Valdez, 182 Colo. 80 , 511 P.2d 472 (1973).
16-3-103. Stopping of suspect.
- A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. A peace officer shall not require any person who is stopped pursuant to this section to produce or divulge such person's social security number. The stopping shall not constitute an arrest.
- When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may conduct a pat-down search of that person for weapons.
Source: L. 72: R&RE, p. 198, § 1. C.R.S. 1963: § 39-3-103. L. 83: (1) amended, p. 663, § 2, effective July 1. L. 2001: (1) amended, p. 941, § 9, effective July 1.
Cross references: For the stopping of persons suspected of alcohol- or drug-related traffic offenses, see § 42-4-1302.
ANNOTATION
Law reviews. For comment, "People v. Thomas: Furtive Gestures as an Element of Reasonable Suspicion -- The Ongoing Struggle to Determine a Standard", see 61 Den. L.J. 579 (1984). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with stops and arrests, see 62 Den. U.L. Rev. 165 (1985). For article, "A DUI Primer", see 16 Colo. Law. 2179 (1987).
Different standards govern full-scale arrest and investigatory stops. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
Limited, temporary detention permissible though no probable cause to arrest exists. A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigation of possible criminal behavior even though there is no probable cause for arrest. People v. Lucero, 182 Colo. 39 , 511 P.2d 468 (1973); People v. Martineau, 185 Colo. 194 , 523 P.2d 126 (1974).
There is an area of proper police procedure in which an officer having less than probable cause to arrest may temporarily detain an individual for limited purposes. People v. Marquez, 183 Colo. 231 , 516 P.2d 1134 (1973); People v. Schreyer, 640 P.2d 1147 ( Colo. 1982 ).
A temporary police detention in the nature of "field investigation" can be justified by less than probable cause for arrest. People v. Stevens, 183 Colo. 399 , 517 P.2d 1336 (1973).
Police officers may make a limited stop on less than probable cause. People v. Montoya, 185 Colo. 299 , 524 P.2d 76 (1974).
In certain circumstances a police officer having less than probable cause to arrest may stop an individual for identification purposes and not violate the fourth amendment prohibition against unreasonable search and seizure. People v. Mascarenas, 726 P.2d 644 (Colo. 1986).
Where officer has a reasonable suspicion that an automobile temporary sticker has been altered, officer has authority to make a stop under this section since such alteration would constitute a misdemeanor traffic offense. People v. Thomas, 839 P.2d 1174 (Colo. 1992).
In order to lawfully detain an individual for questioning: (1) A police officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose. People v. Stevens, 183 Colo. 399 , 517 P.2d 1336 (1973); People v. Montoya, 185 Colo. 299 , 524 P.2d 76 (1974); People v. Mascarenas, 726 P.2d 644 ( Colo. 1986 ); People v. Ratcliff, 778 P.2d 1371 ( Colo. 1989 ); People v. Wilson, 784 P.2d 325 ( Colo. 1989 ); People v. Sutherland, 886 P.2d 681 ( Colo. 1994 ); People v. Rodriguez, 924 P.2d 1100 (Colo. App. 1996), aff'd, 945 P.2d 1351 ( Colo. 1997 ).
The first of these requirements is determined by whether there were specific and articulable facts known to the officer, which taken together with rational inferences from these facts, created a reasonable suspicion of criminal activity to justify the intrusion into the defendant's personal security. People v. Mascarenas, 726 P.2d 644 ( Colo. 1986 ); People v. Wilson, 784 P.2d 325 ( Colo. 1989 ).
Permissible purposes for investigatory stops. Investigatory stops constitute an intermediate response by the police between nondetention and arrest. These procedures are permissible only for the purpose of questioning a suspect, who might otherwise escape, regarding his identity or observed behavior in order temporarily to maintain the status quo while seeking to procure more information regarding possible wrongdoing. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
Police may detain and require identification if reasonable suspicion of criminal conduct. The police may detain and require identification of a person if they have a reasonable suspicion, based on objective facts, that the person is involved in criminal conduct. People v. Archuleta, 616 P.2d 977 (Colo. 1980).
The reasonableness of an officer's suspicion is determined from the totality of the circumstances in which the suspicion arose. People v. Bell, 698 P.2d 269 ( Colo. 1985 ); People v. Mascarenas, 726 P.2d 644 ( Colo. 1986 ); People v. Coca, 829 P.2d 385 ( Colo. 1992 ).
Officer's suspicion that the defendants were connected to the reported criminal activity held reasonable given the defendants' evasive actions and their proximity to the location of the reported burglary shortly after the officer received the dispatch call. People v. Mascarenas, 726 P.2d 644 ( Colo. 1986 ); People v. Sosbe, 789 P.2d 1113 ( Colo. 1990 ).
Investigatory stops. A police officer, lacking probable cause to arrest, may stop a person for investigatory purposes if the officer has a reasonable suspicion that the person stopped is involved in criminal activity. People v. Sosbe, 789 P.2d 1113 (Colo. 1990).
An investigatory stop implicates a seizure that is based on less than probable cause and so it must be brief in duration, limited in scope, and narrow in purpose. People v. Tottenhoff, 691 P.2d 340 ( Colo. 1984 ); Outlaw v. People, 17 P.3d 150 ( Colo. 2001 ).
Construction of § 42-2-113 inconsistent with this section. A construction of § 42-2-113 , which requires that drivers' licenses be displayed to peace officers upon demand, which would give to a police officer unlimited discretionary authority to stop any car at any time for any reason as long as he asked contemporaneously for display of a driver's license would be inconsistent with this section, which specifically limits an officer's authority to stop persons for investigation in the absence of probable cause to arrest. People v. McPherson, 191 Colo. 81 , 550 P.2d 311 (1976).
Limited searches of a person for weapons during an investigative detention, when probable cause for arrest is lacking, is permissible, but there must be: (1) Some reason for the officer to confront the citizen in the first place; (2) something in the circumstances, including the citizen's reaction to the confrontation, must give the officer reason to suspect that the citizen may be armed and, thus, dangerous to the officer or others; and (3) the search must be limited to a frisk directed at discovery and appropriation of weapons and not at evidence in general. People v. Martineau, 185 Colo. 194 , 523 P.2d 126 (1974); People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).
In determining the reasonableness of a search in the situation where the search is not full blown but is rather just a protective search for weapons, the inquiry is a dual one: (1) Was the officer's action justified at its inception; and (2) was the search reasonably related in scope to the circumstances which justified the interference in the first place. People v. Burley, 185 Colo. 224 , 523 P.2d 981 (1974).
So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. People v. Burley, 185 Colo. 224 , 523 P.2d 981 (1974).
Protective search for weapons is justified only when circumstances of an otherwise valid stop provides the officer with a reasonable basis to suspect person stopped may be armed and dangerous. People v. Ratcliff, 778 P.2d 1371 ( Colo. 1989 ); People v. Sutherland, 886 P.2d 681 ( Colo. 1994 ).
Based not on hunches and limited in scope. In order to uphold the stop and frisk as reasonable, both the initial confrontation and the subsequent search must have been prompted by the officers' reliance on particular facts, rather than on inarticulable hunches, and the scope of the frisk must be limited to that necessary for the discovery of weapons. People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).
Sufficient basis for weapons search to be excepted from warrant requirement. The reasonable apprehension of danger or injury to the police officers -- judged by objective standards -- provides a sufficient basis for a search to fall within the search for weapons exception to the fourth amendment's warrant requirement. People v. Burley, 185 Colo. 224 , 523 P.2d 981 (1974).
Based on the totality of the circumstances, the trial court properly denied defendant's motion to suppress evidence obtained during a vehicle search. Trial court properly found that police officer had reasonable suspicion that defendant was engaged in drug trafficking sufficient to justify the investigatory stop. People v. Ramirez, 1 P.3d 233 (Colo. App. 1999).
Even if seizure of person is unconstitutional, evidence abandoned prior to that seizure is not the fruit of the seizure and should not be suppressed. People v. McClain, 149 P.3d 787 (Colo. 2007).
Even if the totality of police officers' conduct rose to the level of a show of authority to constitute a seizure, evidence abandoned prior to the seizure cannot be suppressed. People v. McClain, 149 P.3d 787 (Colo. 2007).
Reasonable grounds to fear suspect armed. Where the arresting officers stopped defendant because he matched description of a suspect who had allegedly committed an act of violence, these circumstances constituted reasonable grounds to fear that the suspect might well be armed, and thus, be potentially dangerous. The officers therefore acted properly in initiating a pat-down search for weapons. People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).
Doctrine of allowing investigative stops based upon "reasonable cause" was extended to include information supplied by informants' tips as well as the personal observations of police officers. People v. Lucero, 182 Colo. 39 , 511 P.2d 468 (1973).
Stop, search, and seizure of evidence reasonable and justified under circumstances even though conduct was compatible with innocent activity. Informant told police there were three males in the area and that one was wearing a poncho and possibly carrying a rifle. When officers spotted three males, one wearing a poncho, they stopped them for questioning. People v. D.F., 933 P.2d 9 (Colo. 1997).
Officers do not have to observe criminal conduct to corroborate anonymous tip. People v. D.F., 933 P.2d 9 (Colo. 1997).
The record revealed no circumstances which could legitimate the stopping of defendant's vehicle as a temporary detention within the contemplation of this section, where the officers had never seen or heard of defendant before, did not even know if drug trafficking actually had taken place in the house under surveillance, and had no reason to believe the sack defendant carried contained drugs, and where defendant did not violate any traffic laws as he drove away. People v. McPherson, 191 Colo. 81 , 550 P.2d 311 (1976).
Stopping of defendant held not arrest but proper temporary detention in nature of field investigation. People v. Cruz, 186 Colo. 295 , 526 P.2d 1315 (1974).
Detention held a full-scale arrest. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).
Discovery of evidence of crime while searching for weapons. Where the search was limited to a frisk directed at the discovery and appropriation of weapons, and not to uncover evidence as such, evidence of a crime having thus been lawfully uncovered, it is competent and admissible in evidence as relevant proof of the charges of which defendant is accused. People v. Martineau, 185 Colo. 194 , 523 P.2d 126 (1974).
Where police officer obtained probable cause to search a vehicle and seize evidence in the process of making a lawful stop for threshold investigatory purposes, the defendant's motion to suppress this evidence was properly denied. People v. Lucero, 182 Colo. 39 , 511 P.2d 468 (1973).
Police officers are entitled to conduct an investigatory stop of a motorist if they have reasonable suspicion that the motorist has committed a traffic violation. Because the defendant had committed a traffic violation and that offense alone was sufficient to justify the police encounter, the trial court did not err in denying the defendant's motion to suppress. People v. Valencia-Alvarez, 101 P.3d 1112 (Colo. App. 2004).
Trial court improperly suppressed the evidence police obtained after conducting an investigatory stop of the defendant. The police had a reasonable, articulable suspicion to conduct an investigatory stop of the defendant because of ongoing criminal activity. People v. Reyes-Valenzuela, 2017 CO 31, 392 P.3d 520.
Discovery of evidence of crime while responding to taxicab driver's plea. Where the search was the result of police responding to the plea of a taxicab driver who thought he was about to be robbed, but the search revealed that the defendant, who was the passenger, was in possession of narcotics, the defendant's motion to suppress was properly denied. People v. McNeal, 191 Colo. 490 , 553 P.2d 757 (1976).
Seizure of heroin under plain-view doctrine held proper. Where police officer, who had legitimately stopped defendant, observed what he believed to be heroin in plain view on seat of automobile which defendant had just exited, he could seize the heroin under the "plain-view doctrine". People v. Montoya, 185 Colo. 299 , 524 P.2d 76 (1974).
Trial court properly suppressed evidence seized during search of defendant when fact that defendant ran in opposite direction from companions did not satisfy constitutional requirement of reasonable suspicion for investigatory stop and scope of resulting search exceeded a pat down for weapons. People v. Wilson, 784 P.2d 325 (Colo. 1989).
There was no probable cause to stop defendant's vehicle where the officer observed a crack in the windshield but could not recall the severity or position of the crack and did not issue a citation for the crack. Evidence that defendant was driving on a suspended license obtained as a result of the unwarranted stop was therefore suppressed. People v. Cerda, 819 P.2d 502 (Colo. 1991).
Trial court properly denied motion to suppress statements made by the defendant between the time he was detained and the time he was actually placed under arrest. The record supported a finding that the defendant was not in custody at the time he was detained as part of a proper investigatory stop, but that he was placed in custody after the arresting officer had probable cause for the arrest based on identification of the defendant by the victim and the finding of an outstanding warrant for the defendant's arrest. People v. Young, 923 P.2d 145 (Colo. App. 1995).
Following Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), the search incident to arrest exception does not apply in this case, and the search of the passenger compartment of defendant's car was unconstitutional. Because statements defendant made following the discovery of drugs were the fruit of the unlawful search, the evidentiary use of the statements must also be suppressed. Perez v. People, 231 P.3d 957 (Colo. 2010).
Applied in People v. Taylor, 190 Colo. 144 , 544 P.2d 392 (1975); People v. Derrera, 40 Colo. App. 86, 570 P.2d 558 (1977).
16-3-104. Arrest by peace officer from another jurisdiction - definitions.
-
As used in this section:
- "State" means any state of the United States and the District of Columbia;
- "Peace officer" means any officer of another state having powers of arrest in that state;
- "Fresh pursuit" means the pursuit without unnecessary delay of a person who has committed a crime or who is reasonably believed to have committed a crime.
- Any peace officer of another state who enters this state in fresh pursuit and continues within this state in fresh pursuit of a person in order to arrest him on the ground that he has committed a crime in the other state has the same authority to arrest and hold such person in custody as a peace officer of this state has to arrest and hold a person in custody.
- Except as otherwise provided by law, if an arrest is made in this state by a peace officer of another state in accordance with the provisions of this section, he shall without unnecessary delay take the person arrested before the nearest available judge of a court of record. Such judge shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful, he shall commit the person arrested to await the time provided by law for issuance of an extradition warrant by the governor of this state, or the waiver thereof, and shall set bail if the offense is bailable under the laws of the state of Colorado. If the judge determines that the arrest was unlawful, he shall order the discharge of the person arrested.
Source: L. 72: R&RE, p. 198, § 1. C.R.S. 1963: § 39-3-104.
ANNOTATION
Law reviews. For article, "Criminal Procedure in Colorado -- A Summary, and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950)(written under repealed CSA, C 48, § 564).
Three criteria used in determining "fresh pursuit". Three criteria are to be utilized in analyzing what police activity can be categorized as fresh pursuit. They are: (1) The police must act without unnecessary delay; (2) the pursuit must be continuous and uninterrupted, but there need not be continuous surveillance of the suspect or uninterrupted knowledge of his whereabouts; and (3) the relationship between the commission of the offense, the commencement of the pursuit, and the apprehension of the suspect -- the greater the length of time, the less likely the police action constituted fresh pursuit. Charnes v. Arnold, 198 Colo. 362 , 600 P.2d 64 (1979).
Characterization as "fresh pursuit" not precluded even though officer does not follow suspect's route. Where the police responded immediately to a call concerning a hit-and-run accident and promptly pursued the only lead available, the address of the owner of the vehicle, the fact that the officer did not follow the suspect's route did not preclude the characterization of his action as fresh pursuit. Charnes v. Arnold, 198 Colo. 362 , 600 P.2d 64 (1979).
16-3-105. Release by arresting authority.
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When a person has been arrested without a warrant, he may be released by the arresting authority on its own authority if:
- The arresting officer or a responsible command officer of the arresting authority is satisfied that there are no adequate grounds for criminal complaint against the person arrested; or
- The offense for which the person was arrested and is being held is a misdemeanor or petty offense and the arresting officer or a responsible command officer of the arresting authority is satisfied that the person arrested will obey a summons commanding his appearance at a later date.
(1.5) No person arrested for any crime or offense, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3 (1), C.R.S., shall be released at the scene of the alleged crime pursuant to subsection (1) of this section.
- If the person is released in accordance with subsection (1)(b) of this section, he shall be given a summons and complaint as provided for in sections 16-2-104 and 16-2-106 and shall sign a written acknowledgment of its receipt and a promise to appear at the time and place specified.
Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-105. L. 94: (1.5) added, p. 2034, § 12, effective July 1.
ANNOTATION
The statutes and procedural rules do not require that person charged with a misdemeanor be given a copy of the complaint prior to being released on bail. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).
Applied in People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979).
16-3-106. Peace officer may pursue offender.
When any peace officer is in fresh pursuit of any alleged offender, having a warrant for his arrest or having knowledge that such warrant has been issued, or, in the absence of an arrest warrant, when the offense was committed in the officer's presence or the officer has reasonable grounds to believe that the alleged offender has committed a criminal offense, and the alleged offender crosses a boundary line marking the territorial limit of his authority, such peace officer may pursue him beyond such boundary line and make the arrest, issue a summons and complaint, or issue a notice of penalty assessment.
Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-106.
ANNOTATION
Purpose of section. The general assembly, in enacting this section, intended to limit peace officers to exercising their arrest powers and making their law enforcement efforts within the territorial limits of their authority and to require that local peace officers be advised of, and participate in, the extraterritorial law enforcement activities of other peace officers. People v. Wolf, 635 P.2d 213 ( Colo. 1981 ); People v. Florez, 680 P.2d 219 ( Colo. 1984 ).
This section, by negative inference, limits peace officers' authority to arrest to the territorial boundaries of their jurisdiction unless they are in fresh pursuit or are accompanied by officers of the jurisdiction in which the arrest is made. People v. Lindsey, 805 P.2d 1134 (Colo. App. 1990).
Violations of this section are not per se violations of constitutionally protected rights. People v. Thiret, 685 P.2d 193 ( Colo. 1984 ); People v. Vigil, 729 P.2d 360 ( Colo. 1986 ); People v. Ray, 109 P.3d 996 (Colo. App. 2004).
When this section has been violated by a peace officer, evidence obtained as a result of the violation should be suppressed if the violation also infringes a constitutional right of the defendant, such as the right to be free from unreasonable searches and seizures. People v. Vigil, 729 P.2d 360 (Colo. 1986).
An arrest in violation of the statute does not mandate suppression of evidence obtained therefrom unless the violation is willful or so egregious as to violate the defendant's constitutional rights. People v. Lindsey, 805 P.2d 1134 (Colo. App. 1990); People v. Loggins, 981 P.2d 630 (Colo. App. 1998).
This section held not to require the suppression of evidence where police officer accompanied injured person to a hospital outside his jurisdiction, emergency room personnel discovered cocaine on the injured person, and the cocaine was delivered to the officer. People v. Loggins, 981 P.2d 630 (Colo. App. 1998).
Statutory violation not willful where undercover narcotics detective was directed by co-defendant to travel to adjacent county, detective did so in good faith, and failure to have done so could have compromised detective's cover and sting operation. People v. Ray, 109 P.3d 996 (Colo. App. 2004).
The departure by an officer from the scene of the crime to get the assistance of other officers, returning 45 minutes later, did not constitute such a break in the chain of events that at the time of the ensuing arrest he would have been required to have had a warrant, inasmuch as an arrest incidental to fresh pursuit need not be immediate, recognizing that considerable time may be needed to procure necessary assistance; the peace officers had probable cause to arrest, acted without unreasonable delay, and thus a warrant was not required. Schindelar v. Michaud, 411 F.2d 80 (10th Cir.), cert. denied, 396 U.S. 956, 90 S. Ct. 426, 24 L. Ed. 2d 420 (1969) (decided under repealed § 39-14-5, C.R.S. 1963).
Where the police officer began chasing the defendant in Denver and remained in fresh pursuit until the automobile was finally stopped in Aurora, his authority to partake in the arrest and related matters in the form of an inventory search existed beyond the boundaries of his original jurisdiction by virtue of this section. People v. Roddy, 188 Colo. 55 , 532 P.2d 958 (1975).
"Fresh pursuit" defined as in section 16-3-104 . Although the definition in § 16-3-104 (1)(c) was promulgated by the general assembly to define "fresh pursuit" as used in that section, it is persuasive in defining the same term as used in this section. Charnes v. Arnold, 198 Colo. 362 , 600 P.2d 64 (1979).
Three criteria used in determining "fresh pursuit". Three criteria are to be utilized in analyzing what police activity can be categorized as fresh pursuit. They are: (1) The police must act without unnecessary delay; (2) the pursuit must be continuous and uninterrupted, but there need not be continuous surveillance of the suspect or uninterrupted knowledge of his whereabouts; and (3) the relationship between the commission of the offense, the commencement of the pursuit, and the apprehension of the suspect -- the greater the length of time, the less likely the police action constituted fresh pursuit. Charnes v. Arnold, 198 Colo. 362 , 600 P.2d 64 (1979).
Characterization as "fresh pursuit" not precluded even though officer does not follow suspect's route. Where the police responded immediately to a call concerning a hit-and-run accident and promptly pursued the only lead available, the address of the owner of the vehicle, the fact that the officer did not follow the suspect's route did not preclude the characterization of his action as fresh pursuit. Charnes v. Arnold, 198 Colo. 362 , 600 P.2d 64 (1979).
Execution of arrest warrant where no fresh pursuit. Where the element of "fresh pursuit" is not present, it is immaterial who executes an arrest warrant provided that individuals with lawful authority to make an arrest are actually present at the scene of the arrest and participate in the arrest process. People v. Schultz, 200 Colo. 47 , 611 P.2d 977 (1980).
Court interpreted "reasonable grounds" to mean that a police officer in fresh pursuit can only make an extra-territorial warrantless arrest if, at the time the party crosses the boundary, the officer has "probable cause" to believe a crime has been committed. People v. McKay, 10 P.3d 704 (Colo. App. 2000).
Applied in People v. Lott, 197 Colo. 78 , 589 P.2d 945 (1979).
16-3-107. Custodial care of prisoner in transit.
It is lawful for any peace officer who has the custody of any alleged offender following an arrest to pass through any counties which lie on his route between the place of arrest and the county to which he is taking the alleged offender and to lodge him in any jail on his route for safe custody for one night or more, as the occasion requires.
Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-107.
16-3-107.5. Transportation of prisoners - definitions.
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As used in this section, unless the context otherwise requires:
- "Contracting entity" means any person or entity contracting with this state, another state, or a political subdivision of this or another state to transport a prisoner; except that "contracting entity" shall not include the department of corrections, any community corrections program operated pursuant to this title, or a county sheriff of a county located within the state of Colorado.
- "Prisoner" means any person convicted of an offense in Colorado or any other state or any person under arrest for suspicion of the commission of a crime in Colorado or any other state.
- "Secure facility" means a county, city and county, or municipal jail or a nonstate-owned prison facility, as defined in section 17-24-125 (1)(b), C.R.S.
- "Supervising individual" means a person employed by a contracting entity to transport prisoners from one location to another.
- "Transport" means to move a prisoner within, into, out of, or through the state of Colorado.
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A supervising individual in each vehicle in which one or more prisoners are being transported by a contracting entity shall maintain a log book that documents for each prisoner:
- His or her name, date of birth, social security number, and any prescribed medication;
- The name of the jurisdictional authority authorizing the transportation, the date and time that the prisoner was first picked up, and the date and time that the prisoner was released to the jurisdictional authority;
- The date, time, length, and purpose of any stop made by the vehicle transporting any prisoner; and
- Information concerning any injuries suffered by the prisoner while being transported.
- Upon request, a supervising individual shall surrender for inspection the log book required by paragraph (a) of this subsection (2) to any federal, state, county, or municipal law enforcement officer.
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A supervising individual in each vehicle in which one or more prisoners are being transported by a contracting entity shall maintain a log book that documents for each prisoner:
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Whenever a prisoner is transported by a contracting entity, the prisoner:
- At a minimum, shall be shackled and placed in a transport belt or chains with handcuffs and shall be under the observation of at least one supervising individual who shall remain awake;
- (Deleted by amendment, L. 2000, p. 852 , § 59, effective May 24, 2000.)
- Shall not be shackled to another prisoner; and
- Shall have available in the vehicle in which the prisoner is being transported appropriate attire for the season, including footwear.
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- At least once every twenty-four hours that a prisoner is being transported by a contracting entity, the prisoner shall be housed unshackled in a cell at a secure facility for a period of not less than six hours and permitted to shower and sleep.
- The contracting entity or the supervising individual shall, if practicable, notify the chief law enforcement officer in charge of the secure facility in which the prisoner is to be housed, at least twenty-four hours prior to the delivery of the prisoner to the secure facility, of each prisoner's name, date of birth, criminal history, and any special medical needs.
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Whenever a vehicle transporting one or more prisoners for a contracting entity stops for more than two hours for any reason:
- The supervising individual shall promptly notify, if practicable, the law enforcement agency of the local jurisdiction in which the vehicle is stopped; and
- All prisoners shall be housed in a secure facility unless, according to the chief law enforcement officer of the secure facility, it would be impractical to do so.
- Whenever a vehicle transporting prisoners for a contracting entity enters the state, a supervising individual shall promptly notify the Colorado bureau of investigation of the number of prisoners and the location or locations within the state where the vehicle is scheduled to stop.
- Whenever a prisoner is housed in a secure facility, the contracting entity shall pay to the operator of the secure facility providing the housing the actual cost of housing the prisoner.
- Any individual or entity who violates any provision of subsections (2) to (5) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five thousand dollars.
- If any prisoner being transported escapes due to the negligence of the contracting entity or a supervising individual, the contracting entity shall be held liable for all actual costs incurred by any governmental entity in recapturing the escaped prisoner and all actual damages caused by the escaped prisoner while at large.
Source: L. 98: Entire section added, p. 699, § 1, effective May 18. L. 2000: (3)(b) amended and (3.5) added, p. 852, § 59, effective May 24.
16-3-108. Issuance of arrest warrant without information or complaint.
A court shall issue an arrest warrant only on affidavit sworn to or affirmed before the judge or a notary public and relating facts sufficient to establish probable cause that an offense has been committed and probable cause that a particular person committed that offense. The court shall issue a warrant for the arrest of such person commanding any peace officer to arrest the person so named and to take the person without unnecessary delay before the nearest judge of a court of record. Once a person is brought before the judge, the Colorado rules of criminal procedure are applicable.
Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-108. L. 95: Entire section amended, p. 463, § 3, effective July 1.
ANNOTATION
Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962).
Annotator's note. Since § 16-3-108 is similar to repealed § 39-2-3, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
This section does not authorize a private citizen to seek an arrest warrant. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).
An arrest warrant is not appropriate where there are no facts to show that the arrestee has yet committed a criminal offense. People v. Hively, 173 Colo. 485 , 480 P.2d 558 (1971).
But federal warrants supported by affidavits provide basis for arrest. Even though the complaint filed by a district attorney, standing alone, would not support an arrest warrant because no facts were set forth to establish probable cause, where federal warrants were supported by affidavits which complied with all constitutional requirements, they provided a legitimate basis for an arrest. Sergent v. People, 177 Colo. 354 , 497 P.2d 983 (1972).
Applied in People v. Schultz, 200 Colo. 47 , 611 P.2d 977 (1980).
16-3-109. Peace officer - authority to make arrest while off duty.
A peace officer, as described in section 16-2.5-101, who, while off duty, is employed in a capacity specifically permitted by policies and procedures adopted by such officer's governmental entity employer shall possess the status and authority which would otherwise be afforded an on-duty peace officer as described in section 16-2.5-101, acting within the course and scope of such officer's employment. To be within the scope of this section, a peace officer employed by a nongovernmental entity must be in uniform with the peace officer's public entity badge plainly visible, or such peace officer must have been approved for plain clothes work by the peace officer's governmental employer.
Source: L. 92: Entire section added, p. 438, § 1, effective June 3. L. 93: Entire section amended, p. 1776, § 36, effective June 6. L. 2003: Entire section amended, p. 1621, § 35, effective August 6.
16-3-110. Peace officers - duties.
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For the purposes of this section, "peace officer" means:
- A peace officer as described in section 16-2.5-101; or
- A federal law enforcement officer who, pursuant to federal statutes and the policy of the agency by which the officer is employed, is authorized to use deadly physical force in the performance of his or her duties.
- A peace officer shall have the authority to act in any situation in which a felony or misdemeanor has been or is being committed in such officer's presence, and such authority shall exist regardless of whether such officer is in the jurisdiction of the law enforcement agency that employs such officer or in some other jurisdiction within the state of Colorado or whether such officer was acting within the scope of such officer's duties when he or she observed the commission of the crime, when such officer has been authorized by such agency to so act. The local law enforcement agency having jurisdiction shall be immediately notified of the arrest and any person arrested shall be released to the custody of the local law enforcement agency.
- This section shall not be construed to authorize any federal officer to use deadly physical force in excess of that authorized in section 18-1-707, C.R.S.
Source: L. 93: Entire section added, p. 703, § 1, effective July 1. L. 96: Entire section amended, p. 735, § 4, effective July 1. L. 2003: (1)(a) amended, p. 1624, § 43, effective August 6.
ANNOTATION
Law reviews. For article, "Controlling the Criminal Justice System: Colorado as a Case Study", see 94 Denv. L. Rev. 497 (2017).
When officers stopped driver for a traffic infraction outside their jurisdiction, they violated subsection (2). Turning without a signal is a traffic infraction, not a felony or misdemeanor, under Colorado law. United States v. Gonzales, 535 F.3d 1174 (10th Cir.), cert. denied, 555 U.S. 1077, 129 S. Ct. 743, 172 L. Ed. 2d 740 (2008).
PART 2 AUTHORITY OF PERSON NOT A PEACE OFFICER TO MAKE AN ARREST
16-3-201. Arrest by a private person.
A person who is not a peace officer may arrest another person when any crime has been or is being committed by the arrested person in the presence of the person making the arrest.
Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-201.
ANNOTATION
Law reviews. For comment, "Leake v. Cain: Abrogation of Public Duty Doctrine in Colorado?", see 59 U. Colo. L. Rev. 383 (1988).
Annotator's note. Since § 16-3-201 is similar to repealed § 39-2-20, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
A private citizen may arrest for any crime committed in his presence. Schiffner v. People, 173 Colo. 123 , 476 P.2d 756 (1970).
Officer outside of jurisdiction arrests with authority of private citizen. A peace officer acting outside the territorial limits of his jurisdiction does not have any less authority to arrest than does a person who is a private citizen. People v. Wolf, 635 P.2d 213 (Colo. 1981).
When "in presence" requirement met. The "in presence" requirement of this section is met if the arrestor observes acts which are in themselves sufficiently indicative of a crime in the course of commission. People v. Olguin, 187 Colo. 34 , 528 P.2d 234 (1974).
F.B.I. agent had authority as private citizen to arrest one escaping from police station in his presence. Schiffner v. People, 173 Colo. 123 , 476 P.2d 756 (1970).
Hospital security guards, like any other citizens, have the power to make a citizen's arrest. People v. Olguin, 187 Colo. 34 , 528 P.2d 234 (1974).
An arrest must be first authorized under this section before a private person can use physical force to effect the arrest. People v. Joyce, 68 P.3d 521 (Colo. App. 2002).
Applied in People v. Lott, 197 Colo. 78 , 589 P.2d 945 (1979).
16-3-202. Assisting peace officer - arrest - furnishing information - immunity.
- A peace officer making an arrest may command the assistance of any person who is in the vicinity.
- A person commanded to assist a peace officer has the same authority to arrest as the officer who commands his assistance.
- A person commanded to assist a peace officer in making an arrest shall not be civilly or criminally liable for any reasonable conduct in aid of the officer or for any acts expressly directed by the officer.
- Private citizens, acting in good faith, shall be immune from any civil liability for reporting to any police officer or law enforcement authority the commission or suspected commission of any crime or for giving other information to aid in the prevention of any crime.
Source: L. 72: R&RE, p. 200, § 1. C.R.S. 1963: § 39-3-202. L. 77: (4) added, p. 851, § 1, effective July 1.
Cross references: For refusing to aid a peace officer, see § 18-8-107; for authority of sheriffs to command aid, see § 30-10-516.
ANNOTATION
Aid of citizen does not make him agent of state in state action cases. The mere existence of the common-law right of a private citizen to aid in an arrest is not such significant state involvement as to make him an agent of the state, for in state action cases it has been required that the state enforce or require adherence to some unconstitutional private act and the mere fact that the state common law or custom permits the act is not sufficient to support a finding of state action under the federal civil rights act. Warren v. Cummings, 303 F. Supp. 803 (D. Colo. 1969) (decided under repealed § 39-2-20, C.R.S. 1963).
Applied in People v. Lott, 197 Colo. 78 , 589 P.2d 945 (1979).
16-3-203. Preventing a crime - reimbursement.
Any person who is not a peace officer as defined in section 24-31-301 (5), C.R.S., who is made the defendant in any civil action as a result of having sought to prevent a crime being committed against any other person, and who has judgment entered in his favor shall be entitled to all his court costs and to reasonable attorney fees incurred in such action.
Source: L. 77: Entire section added, p. 852, § 1, effective June 19. L. 83: Entire section amended, p. 962, § 6, effective July 1, 1984. L. 92: Entire section amended, p. 1097, § 5, effective March 6.
Cross references: (1) For awarding of attorney fees in civil actions generally, see § 13-17-102.
(2) For the legislative declaration contained in the 1992 act amending this section, see section 12 of chapter 167, Session Laws of Colorado 1992.
ANNOTATION
This section shifts payment of the defendant's court costs and reasonable attorney fees to the plaintiff when the defendant prevails and the court finds that the defendant acted in good faith to prevent what he or she thought was a current or future crime. Schwankl v. Davis, 85 P.3d 512 (Colo. 2004).
PART 3 SEARCHES AND SEIZURES
16-3-301. Search warrants - issuance - grounds.
- A search warrant authorized by this section may be issued by any judge of a court of record.
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A search warrant may be issued under this section to search for and seize any property:
- Which is stolen or embezzled; or
- Which is designed or intended for use as a means of committing a criminal offense; or
- Which is or has been used as a means of committing a criminal offense; or
- The possession of which is illegal; or
- Which would be material evidence in a subsequent criminal prosecution in this state or in another state; or
- The seizure of which is expressly required, authorized, or permitted by any statute of this state; or
- Which is kept, stored, maintained, transported, sold, dispensed, or possessed in violation of a statute of this state, under circumstances involving a serious threat to public safety or order or to public health; or
- Which would aid in the detection of the whereabouts of or in the apprehension of a person for whom a lawful arrest warrant is outstanding.
- A search warrant may be issued under this section to search for any person for whom a lawful arrest warrant is outstanding.
Source: L. 72: R&RE, p. 200, § 1. C.R.S. 1963: § 39-3-301. L. 85: (2)(g) amended and (2)(h) and (3) added, p. 615, §§ 1, 2, effective June 2.
Cross references: For provisions concerning search and seizure other than the provisions of this section and rule 41 of the Colorado Rules of Criminal Procedure, see § 7 of article II of the Colorado Constitution; for the issuance of search warrants under the "Colorado Children's Code", see §§ 19-1-112, 19-2-504, and 19-2-505.
ANNOTATION
Law reviews. For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with searches, see 61 Den. L.J. 281 (1984). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with searches, see 62 Den. U.L. Rev. 159 (1985). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to warrant requirements and protection from searches, see 15 Colo. Law. 1564 and 1966 (1986). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with unreasonable searches and seizures, see 65 Den. U. L. Rev. 535 (1988). For a discussion of Tenth Circuit decisions dealing with search and seizure, see 66 Den. U. L. Rev. 813 (1989).
Annotator's note. For further annotations concerning search and seizure, see § 7 of art. II, Colo. Const., and Crim. P. 41.
This section does not require that a judge of a Colorado court of record issue a search warrant for the warrant to be valid. Rather, any judge of a court of record may issue a search warrant. People v. Marko, 2015 COA 139 , 434 P.3d 618, aff'd, 2018 CO 97, 432 P.3d 607.
Nothing in the plain language of this section precludes the introduction in a Colorado criminal trial of evidence constitutionally seized under a search warrant issued by a detached and neutral magistrate from another jurisdiction. People v. Marko, 2015 COA 139 , 434 P.3d 618, aff'd, 2018 CO 97, 432 P.3d 607.
Applied in People v. Stoppel, 637 P.2d 384 (Colo. 1981).
16-3-301.1. Court orders for the production of records - definitions.
- A judge of a court of record may order the production of records.
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A court may order the production of records under this section to require the production of records in the actual or constructive control of a business entity:
- That have been stolen or embezzled;
- That are designed or intended for use as a means of committing a criminal offense;
- That are or have been used as a means of committing a criminal offense;
- The possession of which is illegal;
- That would be material evidence in a subsequent criminal prosecution in this state, another state, or federal court;
- The seizure of which is expressly required, authorized, or permitted by a statute of this state or the United States; or
- That would aid in the detection of the whereabouts of or in the apprehension of a person for whom a lawful arrest order is outstanding.
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A court shall order the production of records only on receipt of an affidavit sworn to or affirmed before the judge and relating facts sufficient to:
- Identify or describe, as nearly as may be, the business entity that is in actual or constructive control of the records;
- Identify or describe, as nearly as may be, the records that shall be produced;
- Establish the grounds for issuance of the court order for production of records or probable cause to believe the grounds exist; and
- Establish probable cause that the records described are in the actual or constructive control of the business entity.
- The affidavit required by paragraph (a) of this subsection (3) may include sworn testimony reduced to writing and signed under oath by the witness giving the testimony before the issuance of the court order for the production of records. A copy of the affidavit and a copy of the transcript of testimony taken in support of the request for a court order for the production of records shall be attached to the court order for the production of records filed with the court.
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A court shall order the production of records only on receipt of an affidavit sworn to or affirmed before the judge and relating facts sufficient to:
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If the court is satisfied that grounds for the application exist or that there is probable cause to believe that the grounds exist, the court shall issue a court order for the production of records, which shall:
- Identify or describe, as nearly as may be, the business entity that is in actual or constructive control of the records;
- Identify or describe, as nearly as may be, the records that shall be produced;
- State the grounds or probable cause for its issuance; and
- State the names of the persons whose affidavits or testimony have been taken in support of the motion.
- The court order for the production of records may also contain other and further orders that the court deems necessary to comply with the provisions of this statute, or to provide for the custody or delivery to the proper person of the records produced and seized under the order, or otherwise to accomplish the purpose of the order.
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Unless the court otherwise directs, every court order for the production of records shall authorize a Colorado criminal investigator or peace officer:
- To serve the order during normal business hours of the business entity or at any other convenient time for the business entity that is in actual or constructive control of the records; and
- To receive the records during normal business hours of the business entity that is in the actual or constructive control of the records.
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If the court is satisfied that grounds for the application exist or that there is probable cause to believe that the grounds exist, the court shall issue a court order for the production of records, which shall:
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- A court order for the production of records may be granted to a Colorado criminal investigator or peace officer whose affidavit supports the issuance of the order. The Colorado criminal investigator or peace officer granted the order need not have authorization to execute a search warrant in the jurisdiction in which the business entity is located.
- A court order for the production of records shall be served upon the business entity to whom it is directed within fourteen days after its date.
- A court order for production of records may be served in the same manner as a summons in a civil action or by personal service on a manager or supervisor of the business entity that is in actual or constructive control of the records or through any electronic or other means established and utilized by the business to receive service of process.
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- A business entity that is properly served with a court order for the production of records shall deliver the records, or copies of the records, identified in the court order to the officer who is designated in the court order within thirty-five days after the date the court order is served. The business entity shall also provide a notarized attestation of accuracy that the records produced represent complete and accurate copies of all records identified in the court order that are in the actual or constructive control of the business entity. If the business entity does not produce all records identified in the court order for production of records, the records not produced shall be identified. The attestation of accuracy shall be signed by the records custodian, or an officer or director of the business entity, who shall attest to the truth of the attestation to the best of the person's knowledge, information, and belief. The attestation may also attest to any one or all of the following: That the records were made at or near the time by, or from information transmitted by, a person with knowledge; that the records were kept in the course of a regular business activity; and that it was the regular practice of the business to record the information contained in the records. The business entity need only provide a copy of the attestation at the time of providing the records to the officer and may provide the original of the attestation to the officer within fourteen days after providing the records. The records and attestation of accuracy shall be sufficient to establish the authenticity of the records produced, without further necessity of extrinsic evidence.
- A business entity that is served with a court order for the production of records may file a motion in the court that issued the court order to allow for an extension of time in which to comply with the court order. The motion shall be filed within the time period required to produce the records. The motion shall state with particularity the reasons why the business entity cannot comply with the court order. The motion shall be served upon the Colorado criminal investigator or peace officer named in the court order.
- Upon the filing of a motion for an extension of time, the court shall hold a hearing within fourteen days, unless the business entity and the Colorado criminal investigator or peace officer named in the court order agree to a later time. The court may grant an extension for a reasonable time for the business to produce the records upon good cause shown or by agreement with the Colorado criminal investigator or peace officer named in the court order.
- Failure of the business entity to comply with the requirements of a court order for the production of records shall support a finding of contempt of court.
- Upon receiving the records from the business entity, the criminal investigator or peace officer named in the court order shall file a return and inventory with the court indicating the records that have been received and the date upon which the records were received. The criminal investigator or peace officer named in the court order may also file with the court the original of the attestation of authenticity and completeness.
- Records produced pursuant to a court order for the production of records may be supplied in any form or format that is convenient for the business entity and that may be accessed by the Colorado criminal investigator or peace officer named in the court order or his or her agency or department. Production of records using proprietary software or another method that is not accessible shall not constitute compliance with the requirements of the court order. The court may order the defendant pay the cost of production of records.
- A cause of action shall not lie against a business entity or an officer, director, or employee, for providing records pursuant to a court order for the production of records.
- Nothing in this section shall preclude a Colorado criminal investigator or peace officer from seeking a search warrant.
- The provisions of this section shall govern the procedures for court orders for the production of records. Motions to suppress evidence seized pursuant to a court order for the production of records shall be governed by the rules of criminal procedure.
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As used in this section, unless the context otherwise requires:
- "Actual or constructive control" means the records are maintained or stored in any form or format on the premises of the business entity or at another location or facility under the custody or control of the business entity or a parent or subsidiary business, including pursuant to an agreement or contract with the business entity or any parent or subsidiary business and third-party service provider, in Colorado or elsewhere.
- "Business entity" means a corporation or other entity that is subject to the provisions of title 7, C.R.S.; a foreign corporation qualified to do business in this state pursuant to article 115 of title 7, C.R.S., specifically including a federally chartered or authorized financial institution; a corporation or other entity that is subject to the provisions of title 11, C.R.S.; or a sole proprietorship or other association or group of individuals doing business in the state.
- "Colorado criminal investigator" means an employee of the Colorado department of regulatory agencies, the Colorado department of labor and employment, or the Colorado department of revenue who has been classified as a criminal investigator by the director of the employing department.
- "Peace officer" means a peace officer as described in section 16-2.5-101.
- "Records" shall include all documents, electronic notations, journal entries, data, reports, statements, financial documentation, correspondence, electronic mail, or other information retained by a business entity in connection with business activity, but shall not include an item that is privileged pursuant to section 13-90-107, C.R.S., unless the person who possesses the privilege gives consent.
Source: L. 2003: Entire section added, p. 978, § 17, effective April 17. L. 2004: (4)(a)(I), (6)(e), (11)(a), (11)(b), and (11)(d) amended, p. 1377, § 2, effective July 1. L. 2010: (4)(c)(I), (5)(c), (6)(a), and (11)(c) amended, (HB 10-1132), ch. 122, p. 406, § 1, effective August 11. L. 2012: (5)(b), (6)(a), and (6)(c) amended, (SB 12-175), ch. 208, p. 843, § 59, effective July 1.
16-3-301.5. Search warrant for firearms possessed by a respondent in an extreme risk protection order.
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Any court may issue a search warrant to search for and take custody of any firearm in the possession of a named respondent in an extreme risk protection order or temporary extreme risk protection order filed pursuant to article 14.5 of title 13 if the application for the warrant complies with all required provisions of section 16-3-303 and also provides facts sufficient to establish by probable cause:
- That the named person is a named respondent in an extreme risk protection order or temporary extreme risk protection order filed pursuant to article 14.5 of title 13; and
- That the named person is in possession of one or more firearms; and
- The location of such firearms; and
- Any other information relied upon by the applicant and why the applicant considers such information credible and reliable.
- The return or disposal of any firearm taken custody of pursuant to this section shall be accomplished pursuant to section 13-14.5-109.
Source: L. 2019: Entire section added, (HB 19-1177), ch. 108, p. 399, § 3, effective April 12.
16-3-302. Search warrants - municipalities - inspections - grounds.
A search warrant may be issued by a judge of any municipal court by compliance with the applicable rule of the Colorado municipal court rules.
Source: L. 72: R&RE, p. 200, § 1. C.R.S. 1963: § 39-3-302.
16-3-303. Search warrants - application.
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A search warrant shall issue only on affidavit sworn to or affirmed before the judge and relating facts sufficient to:
- Identify or describe, as nearly as may be, the premises, person, place, or thing to be searched;
- Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected;
- Establish the grounds for issuance of the warrant or probable cause to believe that such grounds exist; and
- Establish probable cause to believe that the property to be searched for, seized, or inspected is located at, in, or upon the premises, person, place, or thing to be searched.
- The affidavit required by this section may include sworn testimony reduced to writing and signed under oath by the witness giving the testimony before issuance of the warrant. A copy of the affidavit and a copy of the transcript of testimony taken in support of the request for a search warrant shall be attached to the search warrant filed with the court.
- Procedures governing application for and issuance of search warrants consistent with this section may be established by rule of the supreme court.
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A no-knock search warrant shall be issued only if the affidavit for such warrant:
- Complies with the provisions of subsections (1), (2), and (3) of this section;
- Specifically requests the issuance of a no-knock search warrant; and
- Has been reviewed and approved for legal sufficiency and signed by a district attorney pursuant to section 20-1-106.1 (1)(b), C.R.S. Such review and approval may take place as allowed by statute or court rule or by means of facsimile transmission, telephonic transmission, or other electronic transfer.
- If the grounds for the issuance of a no-knock search warrant are established by a confidential informant, the affidavit for such warrant shall contain a statement by the affiant concerning when such grounds became known or were verified by the affiant. The statement shall not identify the confidential informant.
- For the purposes of this section, unless the context otherwise requires, "no-knock search warrant" means a search warrant served by entry without prior identification.
Source: L. 72: R&RE, p. 200, § 1. C.R.S. 1963: § 39-3-303. L. 2000: (4), (5), and (6) added, p. 650, § 1, effective July 1. L. 2001: (4)(c) amended, p. 1270, § 19, effective June 5.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "Veracity Challenges in Colorado: A Primer", see 14 Colo. Law. 227 (1985).
Annotator's note. (1) Since § 16-3-303 is similar to repealed § 39-2-6, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
(2) For further annotations concerning search and seizure, see § 7 of art. II of the Colo. Const., and Crim. P. 41.
Unreasonable searches and seizures forbidden. Section 7 of art. II, Colo. Const., as well as the fourth and fourteenth amendments to the United States constitution, forbids unreasonable searches and seizures and further requires that searches and seizures be made only pursuant to a warrant based upon probable cause and supported by oath or affirmation. People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).
Search authorized only upon showing of probable cause. It is only upon a showing of probable cause that the legal doors are opened to allow the police to gain official entry into an individual's domain of privacy for the purpose of conducting a search or to make an official seizure under the constitution. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
Probable cause defined. Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. In dealing with probable cause, one deals with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971); People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).
Probable cause is an elusive term and is incapable of any precise definition which would permit a mechanical application under all circumstances. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).
Totality of circumstances test adopted for determining probable cause. People v. Pennebaker, 714 P.2d 904 (Colo. 1986).
Anticipatory warrants are barred by statutory language and identical language in Crim. P. 41 requiring that property to be searched for, seized, or inspected "is located at, in, or upon" premise, person, place, or thing to be searched. People v. Poirez, 904 P.2d 880 (Colo. 1995).
For evidence constituting probable cause, see People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979).
Mere suspicion does not by itself constitute probable cause. People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).
Mere conclusory belief or suspicion by an affiant officer is not enough upon which to base the issuance of a search warrant. People v. Clavey, 187 Colo. 305 , 530 P.2d 491 (1975).
Determination of probable cause is a judicial function to be performed by the issuing magistrate, which in Colorado may be any judge of the supreme, district, county, superior, or justice of the peace court under Crim. P. 41, and is not a matter to be left to the discretion of a law enforcement officer who is employed to apprehend criminals and to bring before the courts for trial those who would violate the law. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
The role of the police officer in search warrant practice is limited solely to providing the judge with facts and trustworthy information upon which he, as a neutral and detached judicial officer, may make a proper determination. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
And mere affirmance of belief or suspicion of an officer is not enough. To hold otherwise would attach controlling significance to the officer's belief rather than to the magistrate's judicial determination. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
Independent determination of probable cause. The fact that the police did not request a warrant to search additional places likely to contain incriminating evidence is irrelevant to the independent determination of probable cause to search the place specified in the warrant. People v. Chase, 675 P.2d 315 (Colo. 1984).
A court may sever deficient portions of a search warrant without invalidating the entire warrant. When a warrant lists several locations to be searched, a court may suppress evidence recovered at a location for which police lacked probable cause but admit evidence recovered at locations for which probable cause was established. Under this severability doctrine, items that are illegally seized during the execution of a valid search warrant do not affect admissibility of evidence legally obtained while executing the warrant. People v. Eirish, 165 P.3d 848 (Colo. App. 2007).
Applied in People v. Conwell, 649 P.2d 1099 (Colo. 1982).
II. CONTENT AND SUFFICIENCY OF AFFIDAVIT.
Affidavit need not be attached to warrant served. There is nothing which requires that a person given a warrant must receive a copy of the underlying affidavit or that a copy thereof must be attached to the copy of the warrant which is served at the time of the search. People v. Papez, 652 P.2d 619 (Colo. App. 1982).
But documents attached to and incorporated in an affidavit by reference need not be sworn to separately and may thus fall within the four corners of the affidavit. People v. Campbell, 678 P.2d 1035 (Colo. App. 1983).
Probable cause must be affirmed in writing. The fourth amendment to the United States constitution requires probable cause supported by oath or affirmation as a condition precedent to the valid issuance of a search warrant. Section 7 of art. II, Colo. Const., is even more restrictive and provides that probable cause must be supported by oath or affirmation reduced to writing. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
Under both the fourth amendment of the United States constitution and § 7 of art. II, Colo. Const., no search warrants may issue without a showing of probable cause, which, under the Colorado constitution, must be affirmed in writing before a search warrant may issue. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).
A search warrant may properly issue only upon written affidavit establishing probable cause for the belief that the items sought are or will be located on the premises to be searched at the time at which the warrant is procured, or within a reasonable time thereafter. People v. Erthal, 38 Colo. App. 245, 556 P.2d 1228 (1976), aff'd, 194 Colo. 147 , 570 P.2d 534 (1977).
While an officer's "training and experience" may be considered in determining probable cause, such training and experience cannot substitute for an evidentiary nexus, prior to the search, between the place to be searched and any criminal activity. People v. Eirish, 165 P.3d 848 (Colo. App. 2007).
Probable cause exists when an affidavit for a search warrant alleges sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located at the place to be searched. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).
During a controlled drug transaction, probable cause exists to search the location to which the seller went before selling the drugs to the police. People v. Eirish, 165 P.3d 848 (Colo. App. 2007).
Judge must look within the four corners of the affidavit to determine whether there are grounds for the issuance of a search warrant in determining whether the affidavit is sufficient. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971); People v. Woods, 175 Colo. 34 , 485 P.2d 491 (1971); People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979); People v. Atley, 727 P.2d 376 ( Colo. 1986 ).
In determining whether an affidavit is sufficient to support the issuance of a search warrant, the magistrate must look only within the four corners of the affidavit, and verbal communications to the magistrate of additional supporting information cannot correct an affidavit which is basically deficient in its statement of the underlying facts and the circumstances relied upon. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).
The court is restricted to the information contained within the four corners of the affidavit. Thus, it cannot bolster the insufficient affidavit with additional information not conveyed to the magistrate in the application for the warrant. People v. Miller, 75 P.3d 1108 (Colo. 2003).
Existence of information outside affidavit is immaterial. The fact that the police might have had additional information which could have provided a basis for the issuance of the warrant is of no consequence. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
Verbal communication of facts, as contrasted with written communication, will not suffice to establish probable cause. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).
Nor will the affiant's conclusory declaration that he has probable cause add strength to the showing made. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).
Technical requirements and elaborate specificity are not required in the drafting of affidavits for search warrants. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).
Affidavit interpreted with common sense. In interpreting an affidavit for a search warrant and the execution of the warrant, a common sense interpretation must be applied. People v. Del Alamo, 624 P.2d 1304 (Colo. 1981).
Task of magistrate is to make practical, common-sense decision as to whether, given all circumstances stated in affidavit, there is fair probability that contraband or evidence of a crime will be found in a particular place. People v. Pennebaker, 714 P.2d 904 ( Colo. 1986 ); People v. Atley, 727 P.2d 376 ( Colo. 1986 ).
Affidavit must supply underlying fact. Before the issuing magistrate can properly perform his official function he must be apprised of the underlying facts and circumstances which show that there is probable cause to believe that proper grounds for the issuance of the warrant exist. If a search warrant is to be sustained, the Colorado supreme court must find that the affidavit complied with the standards set forth in Aguilar v. Texas (378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1966)) and in Spinelli v. United States (393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)). People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971); People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979); People v. Dailey, 639 P.2d 1068 ( Colo. 1982 ).
The United States supreme court, in attempting to define the area of probable cause with certainty and to provide guidelines for proper investigation, has provided a two-prong test. First, the affidavit upon which the warrant is based must set forth the underlying circumstances necessary to enable an independent judicial determination to be made, and, second, the information upon which the conclusion is based must come from a reliable or credible source. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).
The affidavit for search warrant must meet the two-pronged test requiring that the officer establish: (1) The underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and (2) some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. People v. Glaubman, 175 Colo. 41 , 485 P.2d 711 (1971).
The test for determining probable cause for issuance of a search warrant based on information provided by an unidentified informant is that the affidavit in support of the warrant must allege facts from which the issuing magistrate can independently determine whether there is probable cause to believe that illegal activity is being carried on in the place to be searched. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973).
An affidavit based on information provided in large part by an unidentified informant must, in order to establish probable cause for issuance of a search warrant: (1) Allege facts from which the issuing magistrate could independently determine whether there were reasonable grounds to believe that illegal activity was being carried on in the place to be searched; and (2) set forth sufficient facts to allow the magistrate to determine independently if the informer is credible or the information reliable. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973); People v. Baird, 182 Colo. 284 , 512 P.2d 629 (1973); People v. Masson, 185 Colo. 65 , 521 P.2d 1246 (1974).
In order to support the issuance of a search warrant the issuing magistrate must be apprised of sufficient underlying facts and circumstances, reduced to writing, under oath, from which he may reasonably conclude that probable cause exists for the issuance of the warrant. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).
In testing the sufficiency of affidavits in support of search warrants, Colorado has followed the mandate of the United States supreme court in applying the two-pronged Aguilar-Spinelli test. An affidavit which relies on information supplied by a confidential informant must allege sufficient underlying facts from which the issuing magistrate can make an independent determination that illegal activity is being carried on in the place to be searched. In addition, the affidavit must set forth sufficient information so that the magistrate can determine independently that the informant is credible or that his information is reliable. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).
The two-pronged test which emphasizes the basis upon which an informer's tip will provide a foundation for the issuance of a search warrant requires that the affidavit set forth: (1) The underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant's conclusion, and (2) support of the affiant's claim that the informant was credible or his information reliable. People v. McGill, 187 Colo. 65 , 528 P.2d 386 (1974).
An issuing magistrate must be properly apprised of the underlying facts and circumstances which show that there is probable cause to believe that grounds for the issuance of a search warrant exist. People v. Clavey, 187 Colo. 305 , 530 P.2d 491 (1975).
Affidavit contained sufficient underlying facts. Where the affiant states that the informant personally observed marijuana in the premises to be searched, this statement is sufficient to permit the issuing magistrate to determine independently that there were reasonable grounds to believe that illegal activity was being carried on in the place to be searched. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).
Where it appears that the informant personally saw an illegal narcotic on the premises, that he was given two marijuana cigarettes by someone on the premises on September 20, 1972, and that he observed other illegal narcotics at the time he left the premises on September 20, 1972, these facts are sufficient to allow a magistrate to determine whether there was probable cause to determine presence of illegal activity. People v. Baird, 182 Colo. 284 , 512 P.2d 629 (1973).
Where informant personally observed that apartment was used solely to grow mushrooms and observations were consistent with cultivation of psilocybin mushrooms, the totality of the affidavit established probable cause and supported the issuance of a search warrant. People v. Atley, 727 P.2d 376 (Colo. 1986).
Information contained in the affidavit established probable cause to search premises, when analyzed under the totality of the circumstances test, where corroborating circumstances of the same license plate on the vehicle and the presence of a pregnant woman and small child accompanying the defendant in the car at the time of the arrest, and a high volume of short term visitors at the trailer shortly before the defendant's arrest for selling cocaine to an undercover officer established a reasonable probability that contraband or evidence of a crime would be found at the defendant's trailer. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).
Information regarding results of a previous search which were suppressed in a previous action must be stricken from the affidavit supporting a search warrant. But the court will not strike down the warrant if there are sufficient facts remaining in the affidavit to support the issuance of the warrant. People v. Wilson, 819 P.2d 510 (Colo. App. 1991).
Information regarding defendant's description that was omitted from an affidavit for a search warrant did not render the affidavit substantially misleading to the judge who issued the warrant. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).
Regardless of whether facts were omitted with a reckless disregard for the truth in the affidavit submitted in support of a search warrant, the information was not material such that its omission rendered the affidavit substantially misleading as to the existence of probable cause. People v. Kerst, 181 P.3d 1167 (Colo. 2008).
Failure to include a complete list of the indicators of marijuana cultivation in the affidavit did not render the affidavit misleading where the affidavit listed the only two indicators of marijuana cultivation which were present in the office which was to be searched. People v. Wilson, 819 P.2d 510 (Colo. App. 1991).
Identification of wrong street not dispositive of affidavit's efficacy. Fact that the affidavit identified the wrong street, which was less than one block away from the actual location of the truck to be searched, was not dispositive of an affidavit's efficacy. People v. Del Alamo, 624 P.2d 1304 (Colo. 1981).
Information in sheriff deputy's affidavit, when considered separately and as a whole, failed to establish a substantial basis for the magistrate's determination that probable cause existed to issue the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.
Deputy who conducted the search and who was the same officer who prepared the deficient affidavit either knew or should have known that the warrant he obtained based on his own affidavit was lacking in probable cause, and thus it was objectively unreasonable for him to rely on it. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.
Trial court erred when it concluded that (1) probable cause existed to issue the search warrant, and, (2) even absent probable cause, the officers acted in good faith in executing the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.
Affidavit must support finding of probable cause as to each place to be searched. While more than one search warrant may be issued on the basis of a single affidavit, the affidavit must support a finding of probable cause as to each separate warrant or each separate place to be searched. People v. Arnold, 181 Colo. 432 , 509 P.2d 1248 (1973).
Fact that the places to be searched were apartments rather than single-family residences does not alter the rule that an affidavit must support a finding of probable cause as to each separate place to be searched. People v. Arnold, 181 Colo. 432 , 509 P.2d 1248 (1973).
Personal observation by an informant of the objects of the search within the place to be searched satisfied the first prong of the Aguilar-Spinelli test. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973); People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).
The direct observations of the informant are sufficient to satisfy the first prong of the Aguilar-Spinelli test. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).
Requirement that the affidavit for a search warrant set forth underlying circumstances so as to enable a magistrate to independently judge the validity of the informant's conclusion that criminal activity exists can be satisfied by the assertion of personal knowledge of the informant. People v. Montoya, 189 Colo. 106 , 538 P.2d 1332 (1975).
An informer need not relate to police officers the specific address of the place in which he observed the unlawful activity. It is enough if the informant describes the location and provides the officers sufficient information so that they can accurately determine such address. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).
Details from informant must support independent court determination. If officer seeking the warrant is relying upon a tip by another person, then the information contained in the affidavit upon which the informant based his conclusion must be of sufficient detail as to permit the making of an independent determination by the court of the credibility of the informant and his information. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).
Statement that informant is reliable is insufficient. An affidavit does not establish the credibility of an informant by merely stating that the informant is known to be reliable. Nor does an affidavit establish the credibility of an informant by merely stating that the informant is known to be reliable based on past information supplied by the informer which has proved to be accurate. Although the words "past information" might conjure up in the mind of the officer some knowledge of the underlying circumstances from which the officer might conclude that the informant was reliable, the judge has not been apprised of such facts, and consequently, he cannot make a disinterested determination based upon such facts. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
As a basis for issuing a search warrant, the mere assertion of reliability is not sufficient to establish an informant's credibility. There must be a more comprehensive statement of underlying facts upon which the magistrate can make an independent determination that the informant is credible or his information reliable. People v. Aragon, 187 Colo. 206 , 529 P.2d 644 (1974).
An affidavit for a search warrant seeking to show an informant's credibility is not satisfactory by merely stating that the informant is reliable, or that he has supplied information in the past which proved to be accurate. Nor are irrelevant, albeit correct, details sufficient. People v. Montoya, 189 Colo. 106 , 538 P.2d 1332 (1975).
Where the only recital in the affidavit for a search warrant bearing upon the informant's credibility or the reliability of the information supplied was "That the confidential informant has related information to the affiant regarding several previous narcotics and dangerous drugs sellers and users which has been confirmed and proven reliable by the affiant", this was totally conclusory and devoid of details sufficient to support an independent finding of credibility or reliability. People v. Bowen, 189 Colo. 126 , 538 P.2d 1336 (1975).
An affidavit must contain sufficient facts to allow the magistrate to determine how the informant obtained the information upon which the affiant relies. Bare assertions of knowledge are insufficient to establish the informer's knowledge. Statements as to the informer's reliability must not be conclusory, but must contain information upon which the magistrate could independently determine the informant's veracity and reliability. People v. Pacheco, 175 P.3d 91 (Colo. 2006).
There are at least three ways in which an affidavit might allow a magistrate to determine the reliability of an informant's information so as to issue a search warrant: (1) By stating that the informant had previously given reliable information; (2) by presenting the information in detail which clearly manifests its reliability; and (3) by presenting facts which corroborate the informant's information. People v. Masson, 185 Colo. 65 , 521 P.2d 1246 (1974).
The reliability of the informant is established if the information resulted in arrests. The issue involved is the reliability of the informant; this reliability is satisfactorily established if the previous information led to arrests. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).
And not in convictions. To impose the more stringent requirement that the information led to convictions would impose an undue restriction on law enforcement officers. People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).
Or it is asserted informant previously furnished information of specified criminal activity. Requirement that the affiant-police officer support his request for a search warrant with information showing that the informant was credible, or his information was reliable, may be satisfied by an assertion that the informant has previously furnished solid material information of specified criminal activity. People v. Montoya, 189 Colo. 106 , 538 P.2d 1332 (1975).
Statement sufficient to establish informant's reliability. Where search warrant affidavit indicated that previous information supplied by the informant had led to narcotics arrests and seizures, such statement was sufficient to establish the reliability of the informant. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973).
Where the affidavit related that the informant had, within the past 14 months, supplied information which led to the arrest and conviction of an individual for possession of a narcotic drug, and that the informant had, within the past 24 hours, supplied information which resulted in arrests and the seizure of a quantity of marijuana, this information was sufficient to permit the issuing magistrate to find that the informant was reliable. People v. Harris, 182 Colo. 75 , 510 P.2d 1374 (1973).
Affidavit set forth sufficient facts to permit a determination that the informant was reliable and the information provided therewith was sufficient to justify issuance of a search warrant. People v. Treadway, 182 Colo. 239 , 512 P.2d 275 (1973).
Where the affidavit alleged that the informant had furnished information which "has been the cause of approximately 20 narcotic and dangerous drug arrests in the past year", the magistrate could independently conclude that the police would not repeatedly accept information from one who has not proven by experience to be reliable, and hence, the magistrate could determine that the informant was credible. People v. Baird, 182 Colo. 284 , 512 P.2d 629 (1973).
The second prong of the Aguilar-Spinelli test is satisfied by the statement in the affidavit that the information was received from "a previously reliable confidential informant whose information has resulted in narcotics arrest and seizures on at least two past occasions". People v. Arnold, 186 Colo. 372 , 527 P.2d 806 (1974).
Informant's means of obtaining information need not be recited in the affidavit if there is stated such detail given by the informant as would corroborate his assertions of criminal activity. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).
Citizen-informer rule. Colorado will follow the citizen-informer rule and will recognize that a citizen who is identified by name and address and was a witness to criminal activity cannot be considered on the same basis as the ordinary informant. People v. Glaubman, 175 Colo. 41 , 485 P.2d 711 (1971).
Affidavit need not contain statement of facts showing reliability of citizen-informant. Where the citizen-informant rule applies to information contained in an affidavit for issuance of a search warrant, it is not necessary that the affidavit contain a statement of facts showing the reliability of the citizen-informant, as is the case when the informant is confidential and unidentified. People v. Schamber, 182 Colo. 355 , 513 P.2d 205 (1973).
A police officer's factual statements in an affidavit that are erroneous and false must be stricken and may not be considered in determining whether the affidavit will support the issuance of a search warrant. People v. Malone, 175 Colo. 31 , 485 P.2d 499 (1971).
Deletion of inaccuracies not fatal if sufficient material facts remain. Where the affidavit still contains material facts sufficient as a matter of law to support the issuance of a warrant after deletion of erroneous statements, the supreme court will not strike down a warrant because the affidavit is not completely accurate. People v. Malone, 175 Colo. 31 , 485 P.2d 499 (1971).
The fact that some portions of an affidavit must be stricken because they are erroneous, or that a portion of the evidence relied on for a finding of probable cause is not properly recorded and may not be considered, does not require the issuing magistrate to ignore the other information supplied by the affidavit. People v. Gable, 647 P.2d 246 (Colo. App. 1982).
Likewise, affidavit may be amended by sworn testimony before issuance of warrant. Should the judge to whom application has been made for the issuance of a search warrant determine that the affidavit is insufficient, he can require that sworn testimony be offered to supplement the affidavit or can demand that the affidavit be amended to disclose additional facts. The testimony taken would have to be reduced to writing and signed by the witness or witnesses that offered testimony, under oath, to supplement the affidavit. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
A search warrant may be based on hearsay, as long as a substantial basis for crediting the hearsay exists. People v. Woods, 175 Colo. 34 , 485 P.2d 491 (1971); People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979).
Affidavit not insufficient though based on double hearsay. Affidavit in support of search warrant was not insufficient although it was predicated upon double hearsay, where the information is conveyed by one police officer to another police officer. People v. Quintana, 183 Colo. 81 , 514 P.2d 1325 (1973).
Fruits of search supported by defective affidavit are inadmissible. Where the affidavits were fatally defective, the warrants issued thereon were nullities, any search conducted under them was unlawful, and the fruits of such a search are inadmissible in evidence. People v. Brethauer, 174 Colo. 29 , 482 P.2d 369 (1971).
Affidavit did not recite sufficient facts which could enable the court to make an independent determination that there is probable cause to believe that the defendants were keeping marijuana in their safe deposit box, where the first six paragraphs of the affidavit merely provide the information that the two college students, one of whom reportedly had engaged at some previous time in selling marijuana, had rented a safe deposit box, and paragraph seven states that the treasury department had received information that one of the defendants kept marijuana in a safe deposit box in a local bank, since there is no basis to test the credibility or reliability of the actual source of the incriminating information. Flesher v. People, 174 Colo. 355 , 484 P.2d 113 (1971).
The affidavit is not sufficient if no explanation appears as to how the county sheriff's office obtained the information, nor did the affidavit set forth who made the observation, or whether the information was obtained from an eyewitness or from a person who received the information indirectly. People v. Myers, 175 Colo. 109 , 485 P.2d 877 (1971).
Statement in affidavit for issuance of search warrant that informant was present in two apartments located in the same building and observed marijuana did not have "plain meaning" to indicate that informant had seen marijuana in both apartments and would not support the issuance of search warrants for both apartments. People v. Ward, 181 Colo. 246 , 508 P.2d 1257 (1973).
Although the affidavit related that the informant did observe marijuana and "speed" somewhere in the building at 2018 Ogden Street, there is nothing in the affidavit to indicate specifically where in that multiple-occupancy structure the drugs were located. This being so, the affidavit failed to relate sufficient facts from which the issuing magistrate could find probable cause to believe that the marijuana and "speed" were located within the places to be searched, i.e., within each of the defendants' apartments. People v. Arnold, 181 Colo. 432 , 509 P.2d 1248 (1973).
Affidavit was not sufficient to establish probable cause for issuance of warrant authorizing search of automobile where owner of automobile was suspected of selling marijuana. People v. Padilla, 182 Colo. 101 , 511 P.2d 480 (1973).
Because of the long lapse of time, the information in the affidavit pertaining to the probable location of the sought items was insufficient for the issuance of a search warrant. People v. Erthal, 38 Colo. App. 245, 556 P.2d 1228 (1976), aff'd, 194 Colo. 147 , 570 P.2d 534 (1977).
Good faith basis required to challenge warrant affidavits. As conditions to a veracity hearing testing the truth of averments contained in a warrant affidavit, a motion to suppress must be supported by one or more affidavits reflecting a good faith basis for the challenge and contain a specification of the precise statements challenged. People v. Dailey, 639 P.2d 1068 (Colo. 1982).
Affidavit containing stale information. Where the only information upon which the search warrant issued had been obtained nearly two months prior to issuance of the warrant and the staleness of the information in the affidavit was not remedied by later information, the warrant was invalid and not supported by sufficient affidavit. People v. Erthal, 194 Colo. 147 , 570 P.2d 534 (1977).
The warrant was not based on probable cause, and the police could not have reasonably relied on it, because the information regarding drug manufacturing at defendant's home was stale when the police applied for the warrant. People v. Miller, 75 P.3d 1108 (Colo. 2003).
Although crimes were perpetrated eight months prior to application for search warrant, because officers proceeded with all due diligence upon discovery of information upon which to base request for a search warrant, the affidavit was sufficient to establish probable cause. People v. Cullen, 695 P.2d 750 (Colo. App. 1984).
Probable cause is typically lacking for issuance of a warrant where no relatively current information of criminal activity or contraband at the location to be searched is available. People v. Miller, 75 P.3d 1108 (Colo. 2003).
Warrant issued day after probable cause established is not invalid. A warrant issued one day after evidence establishing probable cause is obtained is not invalid as being predicated on "stale information". People v. Thrower, 670 P.2d 1251 (Colo. App. 1983).
Trial court erred in suppressing evidence because search warrant lacked probable cause. Magistrate's probable cause determination was entitled to great deference; the court failed to limit its review to information contained in the four corners of the affidavit; and the court did not give the affidavit the presumption of validity. People v. Cox, 2018 CO 88, 429 P.3d 75.
16-3-303.5. Location information - search warrant required - definitions.
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As used in this section, unless the context otherwise requires:
- "Electronic communication service" means a service that provides the ability to send or receive wire or electronic communications to users of the service.
- "Electronic device" means a device that enables access to or use of an electronic communication service, remote computing service, or location information service.
- "Government entity" means a state or local agency, including but not limited to a law enforcement entity or any other investigative entity, agency, department, division, bureau, board, or commission, or an individual acting or purporting to act for or on behalf of a state or local agency.
- "Location information" means information concerning the location of an electronic device that, in whole or in part, is generated or derived from or obtained by the operation of an electronic device on a cellular telephone network or a location information service rather than obtained from a service provider.
- "Location information service" means the provision of a global positioning service or other mapping, locational, or directional information service.
- "Remote computing service" means the provision of computer storage or processing services by means of an electronic communications system.
- Except as provided in subsection (3) or (4) of this section, a government entity shall not obtain the location information of an electronic device without a search warrant issued by a court pursuant to the provisions of this part 3, a subpoena, or a court order.
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A government entity may obtain location information of an electronic device without a warrant, subpoena, or court order under any of the following circumstances:
- The device is reported stolen by the owner;
- In order to respond to the user's call for emergency services;
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With the informed, affirmative consent of:
- The owner or user of the electronic device;
- The next of kin of the owner or user of the electronic device if the owner or user is believed to be deceased or is reported missing and unable to be contacted; or
- The child's parent or legal guardian if the owner or user is under eighteen years of age;
- There exist exigent circumstances such that the search would be recognized as constitutionally permissible without the warrant;
- A representative of the government entity has a good faith belief that his or her actions were legal and, under the information available at the time, a reasonable person would believe that his or her actions were legal;
- The owner or user of the electronic device has voluntarily or publicly disclosed the location information;
- The electronic device has been abandoned by the owner or user; or
- In accordance with any other judicially recognized exception to the search warrant requirement.
- The provisions of this section do not apply to probation departments within the judicial department or to the division of adult parole within the department of corrections.
- Any evidence obtained in violation of this section is not admissible in a civil, criminal, or administrative proceeding and shall not be used in an affidavit of probable cause in an effort to obtain a search warrant, subpoena, or court order. In order to seek suppression of evidence pursuant to this subsection (5) in any proceeding, the person seeking the suppression of evidence must have an ownership, leasehold, rental, or legitimate possessory interest in or a reasonable expectation of privacy in the electronic device at issue.
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- A court shall not admit location information obtained pursuant to this section or evidence derived from that information at a trial, hearing, or other proceeding unless the party seeking to introduce the evidence provides a copy of the warrant, subpoena, or court order and any accompanying affidavit to each party pursuant to rule 16 of the Colorado rules of criminal procedure, or any successor rule.
- A court may waive the requirement under paragraph (a) of this subsection (6) if the court finds that it was not possible to provide a party with the warrant, subpoena, or court order and any accompanying application within the time required by rule 16 of the Colorado rules of criminal procedure, or any successor rule, and that the party will not be prejudiced by the delay in receiving the information.
- An electronic communication service provider and its officers, employees, or agents are not liable for providing information, facilities, or assistance in compliance with the terms of a search warrant, subpoena, or court order issued pursuant to this section or when provided without a warrant, subpoena, or court order issued pursuant to this section or if otherwise provided for by law.
- This section does not apply to a law enforcement agency obtaining basic subscriber information from an electronic communications service provider pursuant to a valid subpoena, court order, or search warrant.
Source: L. 2014: Entire section added, (SB 14-193), ch. 395, p. 1992, § 2, effective June 6.
Cross references: For the legislative declaration in SB 14-193, see section 1 of chapter 395, Session Laws of Colorado 2014.
16-3-303.8. Testing for communicable diseases - court order required - definitions.
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As used in this section, unless the context otherwise requires:
- "Communicable disease" means a disease or infection that is spread from one person to another through the exchange of blood or other bodily fluid and the human immunodeficiency virus (HIV).
- "Emergency medical care provider" has the same meaning as defined in section 18-3-201 (1), C.R.S.
- "Emergency medical service provider" has the same meaning as defined in section 18-3-201 (1.3), C.R.S.
- "Firefighter" has the same meaning as defined in section 18-3-201 (1.5), C.R.S.
- "Peace officer" means any person described in section 16-2.5-101.
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Consent. Unless a person has admitted that he or she has a communicable disease and provides confirmation of the disease, a law enforcement agency shall ask a person to voluntarily consent to a blood test to determine if the person has a communicable disease if:
- The person committed an assault in the first degree in violation of section 18-3-202, C.R.S.; assault in the second degree in violation of section 18-3-203, C.R.S.; or assault in the third degree in violation of section 18-3-204, C.R.S.; and
- During or as a result of the assault, the person's blood or other bodily fluid came into contact with any victim of the assault, a peace officer, firefighter, or emergency medical care provider, or an emergency medical service provider, and there is reason to believe, based on information from a medical professional, the department of public health and environment, or a local health agency, that the victim of the assault, peace officer, firefighter, emergency medical care provider, or emergency medical service provider is at risk of transmission of a communicable disease.
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Application.
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A court shall order a person to submit blood required for a test for communicable diseases if an affidavit sworn to or affirmed before the judge establishes the following grounds for the order:
- There is probable cause that a person committed the crime of assault in the first degree in violation of section 18-3-202, C.R.S.; assault in the second degree in violation of section 18-3-203, C.R.S.; or assault in the third degree in violation of section 18-3-204, C.R.S.;
- The person has been asked to voluntarily submit to a blood test for a communicable disease and the person has refused; and
- There is probable cause to believe that the person's blood or other bodily fluid came into contact with any victim of the assault, a peace officer, firefighter, or emergency medical care provider, or an emergency medical service provider, and there is reason to believe, based on information from a medical professional, the department of public health and environment, or a local health agency, that the victim of the assault, peace officer, firefighter, emergency medical care provider, or emergency medical service provider is at risk of transmission of a communicable disease.
- The affidavit required by paragraph (a) of this subsection (3) may include sworn testimony reduced to writing and signed under oath by the witness giving the testimony before the issuance of the court order. A copy of the affidavit and a copy of the transcript of testimony taken in support of the request for the court order must be attached to a court order issued pursuant to this section.
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A court shall order a person to submit blood required for a test for communicable diseases if an affidavit sworn to or affirmed before the judge establishes the following grounds for the order:
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Order. If the court is satisfied that grounds for the application exist or that there is probable cause to believe that the grounds exist, the court shall issue the court order, which shall:
- Identify the name or description of the individual who is to give the blood;
- Identify the names of any persons making affidavits for issuance of the order;
- Identify the criminal offense concerning which the order has been issued;
- Identify the name of the victim of the assault, peace officer, firefighter, emergency medical care provider, or emergency medical service provider;
- Include a mandate to the officer to whom the order is directed to detain the person for only such time as is necessary to obtain the blood; and
- Include the typewritten or printed name of the judge issuing the order and his or her signature.
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Execution and return.
- The blood tests must be conducted under medical supervision. A person who appears under an order of appearance issued pursuant to this section shall not be detained longer than is reasonably necessary to obtain the blood unless he or she is arrested for an offense.
- The order may be executed and returned only within thirty-five days after its issuance.
- The officer executing the order shall give a copy of the order to the person upon whom it is served.
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Disclosure of results and confidentiality.
- The results of any test on the blood obtained pursuant to an order issued under this section must be reported to the court or the court's designee, who shall then disclose the results to any person named in paragraph (d) of subsection (4) of this section who requests the disclosure.
- Except as required by paragraph (a) of this subsection (6), the court shall keep the test results, disclosure of the test results, and any records relating to the test results or the disclosure of the test results confidential.
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Voluntary submission. If a person described in paragraph
- of subsection (3) of this section voluntarily submits to a test for communicable diseases, the fact of the person's voluntary submission is admissible in mitigation of sentence if the person is convicted of the charged offense.
Source: L. 2016: Entire section added, (HB 16-1393), ch. 304, p. 1223, § 1, effective July 1.
16-3-304. Search warrants - contents.
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If the judge is satisfied that grounds for the application exist or that there is probable cause to believe that such grounds exist, he shall issue a search warrant, which shall:
- Identify or describe, as nearly as may be, the premises, person, place, or thing to be searched;
- Identify or describe, as nearly as may be, the property to be searched for, seized, or inspected;
- State the grounds or probable cause for its issuance; and
- State the names of the persons whose affidavits or testimony have been taken in support thereof.
- The search warrant may also contain such other and further orders as the judge deems necessary to comply with the provisions of a statute, charter, or ordinance, or to provide for the custody or delivery to the proper officer of any property seized under the warrant, or otherwise to accomplish the purposes of the warrant.
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Unless the court otherwise directs, every search warrant authorizes the officer executing the same:
- To execute and serve the warrant at any time; and
- To use and employ such force as is reasonably necessary in the performance of the duties commanded by the warrant.
Source: L. 72: R&RE, p. 201, § 1. C.R.S. 1963: § 39-3-304.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Annotator's note. (1) Since § 16-3-304 is similar to repealed § 39-2-6, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
(2) For further annotations concerning search and seizure, see § 7 of art. II, Colo. Const., and Crim. P. 41.
A search warrant should not be broader than the justifying basis of facts. People v. Clavey, 187 Colo. 305 , 530 P.2d 491 (1975).
Standard for compliance with constitutional requirements is one of practical accuracy. The standard for determining whether a search warrant complies with constitutional requirements is one of practical accuracy rather than technical nicety. People v. Ragulsky, 184 Colo. 86 , 518 P.2d 286 (1974); People v. Martinez, 898 P.2d 28 ( Colo. 1995 ); People v. Schrader, 898 P.2d 33 ( Colo. 1995 ).
The test for determining whether the sufficiency of a description in a search warrant is adequate is if the officer executing the warrant can with reasonable effort ascertain and identify the place intended to be searched. People v. Ragulsky, 184 Colo. 86 , 518 P.2d 286 (1974).
Omission of affiant's name on the face of a search warrant was an immaterial variance which did not invalidate warrant where proper affidavit had been executed by an officer and reviewed by a judge prior to issuance. People v. McKinstry, 843 P.2d 18 (Colo. 1993).
II. DESCRIPTION OF PREMISES, PLACE, ETC.
Warrant describing house as within Denver when in fact the house lay one-half block outside Denver was not for that reason invalid. People v. Martinez, 898 P.2d 28 (Colo. 1995).
Technical perfection not required. Where warrant specified a street address that was adjacent to defendant's residence and owned by the same owner, and defendant's residence was not itself searched, both the warrant and the search were valid. People v. Schrader, 898 P.2d 33 (Colo. 1995).
Not every violation of this section requires suppression of evidence under the exclusionary rule. Where search warrant was executed one-half block outside officers' jurisdiction, but city boundaries were not clear and officers promptly notified the proper authorities when the error was discovered, no violation of defendant's constitutional rights occurred. People v. Martinez, 898 P.2d 28 (Colo. 1995).
This section requires that a warrant particularly describe the place to be searched. People v. Lucero, 174 Colo. 278 , 483 P.2d 968 (1971).
Warrant must describe apartment unit by number or name of tenant. When authority is desired to search a particular apartment or apartments within an apartment building, or a particular room or rooms within a multiple-occupancy structure, the warrant must sufficiently describe the apartment or subunit to be searched, either by number or other designation, or by the name of the tenant or occupant. People v. Alarid, 174 Colo. 289 , 483 P.2d 1331 (1971).
And description by street address is insufficient. When the officers knew or should have known that the house was not a one-family residence, and the fact that the officers had notice of the separate dwelling facilities located in the basement is evident from the affidavit of an officer, the general rule as to multiple-occupancy structures is applicable, and a warrant describing the entire house by street address only, without reference to the particular dwelling unit or units sought to be searched, is constitutionally insufficient since no facts were presented which would show that there was probable cause to believe that criminal activity was occurring in both dwelling places. People v. Alarid, 174 Colo. 289 , 483 P.2d 1331 (1971).
Exception if officers unaware house is multifamily and if search confined. The general rule of law when dealing with searches made in rooming houses or apartment houses is subject to an exception, among others, where the officers did not know, nor had reason to know, that they were dealing with a multifamily dwelling when obtaining the warrant, and providing that they confine the search to the area which was occupied by the person or persons named in the affidavit. People v. Lucero, 174 Colo. 278 , 483 P.2d 968 (1971).
Search warrant failing to designate subunits of multiple-occupancy structure to be searched met the requirement that place to be searched be described with particularity where it was reasonable for the police to conclude that the structure was not divided into subunits. People v. McGill, 187 Colo. 65 , 528 P.2d 386 (1974).
III. DESCRIPTION OF PROPERTY.
The description in a search warrant of items to be seized must be specific. People v. Clavey, 187 Colo. 305 , 530 P.2d 491 (1975).
Search warrant reasonably specific under circumstances. People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979).
In determining whether warrant is too general, the nature of the property to be seized must be considered. People v. Lindholm, 197 Colo. 270 , 591 P.2d 1032 (1979); People v. Ball, 639 P.2d 1078 ( Colo. 1982 ); People v. Hill, 690 P.2d 856 ( Colo. 1984 ).
Burden of connecting articles not described with crime is upon the state. When a defendant demonstrates that an article is not specifically described in the search warrant, and when it is not per se connected with criminal activity, the burden of showing that it is so connected falls upon the state. People v. Lujan, 174 Colo. 554 , 484 P.2d 1238 (1971).
Failure to show connection requires their return. Money seized belonging to the defendant must be returned, when it was not mentioned in the warrant and was not per se connected with criminal activity, when the state failed to show a nexus between the money seized and criminal activity, and when the defendant testified that the money had been lent to him by family members and friends to defray the cost of his daughter's funeral. People v. Lujan, 174 Colo. 554 , 484 P.2d 1238 (1971).
Currency was described with reasonable certainty. Where the search warrant correctly described a $20 bill with the exception of the last character of the serial number which was illegible, the likelihood of defendant's possession of another bill with nine identical characters, all in the same sequential order, and having a different tenth character from the bill described in the search warrant was highly improbable, and hence, there was probable cause to seize the bill as there was reasonable certainty of description. People v. Piwtorak, 174 Colo. 525 , 484 P.2d 1227 (1971).
Effects intermingled with drugs were validly seized. Where objection was made to the seizure of the particular personal effects which serve to identify the person or persons residing at and in control of the premises searched and the record indicates that these personal effects were intermingled with the suspected narcotics and dangerous drugs found on the premises, it was held that these personal effects, which bore the names of the defendants, were validly seized since these items might well serve to establish elements of the crimes for which defendants were charged and for which the search warrant was issued. People v. Piwtorak, 174 Colo. 525 , 484 P.2d 1227 (1971).
Warrant not insufficient on its face. Command portion of search warrant which read: "you are therefore commanded to search forthwith the _________ above described property for the property described" did not render the warrant insufficient on its face where the property to be searched had been specifically described "above" two times and where the property to be seized likewise had been described above as "amphetamines, barbiturates, opium, opium derivatives, and other synthetic narcotics and implements used in the traffic and in the use of narcotic drugs". People v. Ragulsky, 184 Colo. 86 , 518 P.2d 286 (1974).
16-3-305. Search warrants - direction - execution and return.
- Except as otherwise provided in this section, a search warrant shall be directed to any officer authorized by law to execute it in the county wherein the property is located.
- A search warrant issued by a judge of a municipal court shall be directed to any officer authorized by law to execute it in the municipality wherein the property is located.
- Any judge issuing a search warrant, on the grounds stated in section 16-3-301, for the search of a person or for the search of any motor vehicle, aircraft, or other object which is mobile or capable of being transported may make an order authorizing a peace officer to be named in the warrant to execute the same, and the person named in such order may execute the warrant anywhere in the state. All sheriffs, coroners, police officers, and officers of the Colorado state patrol, when required, in their respective counties, shall aid and assist in the execution of such warrant. The order authorized by this subsection (3) may also authorize execution of the warrant by any officer authorized by law to execute it in the county wherein the property is located.
- When any officer, having a warrant for the search of a person or for the search of any motor vehicle, aircraft, or other object which is mobile or capable of being transported is in pursuit thereof and the person, motor vehicle, aircraft, or other object crosses or enters into another county, such officer is authorized to execute the warrant in the other county.
- It is the duty of all peace officers into whose hands any search warrant comes to execute the same, in their respective counties or municipalities, and make due return thereof. Procedures consistent with this section for the execution and return of search warrants may be provided by rule of the supreme court.
- A search warrant shall be executed within fourteen days after its date.
Source: L. 72: R&RE, p. 201, § 1. C.R.S. 1963: § 39-3-305. L. 2012: (6) amended, (SB 12-175), ch. 208, p. 844, § 60, effective July 1.
ANNOTATION
Annotator's note. For further annotations concerning search and seizure, see § 7 of art. II of the Colo. Const., and Crim. P. 41.
Evidence seized in violation of a statutory provision may be suppressed only if the unauthorized search and seizure violated constitutional restraints on unreasonable searches and seizures. People v. Hamer, 689 P.2d 1147 (Colo. App. 1984).
Warrant describing house as within Denver when in fact the house lay one-half block outside Denver was not for that reason invalid. People v. Martinez, 898 P.2d 28 (Colo. 1995).
A warrant is not rendered stale or the resulting search unconstitutional if probable cause continued to exist when executed within the 10-day limit prescribed by subsection (6). People v. Russom, 107 P.3d 986 ( Colo. App. 2004).
16-3-306. Search warrants - joinder.
The search of one or more persons, premises, places, or things, or any combination of persons, premises, places, or things, may be commanded in a single warrant or in separate warrants, if compliance is made with section 16-3-303 (1)(d).
Source: L. 72: R&RE, p. 202, § 1. C.R.S. 1963: § 39-3-306.
16-3-307. Limiting clause.
Nothing in this part 3 shall be construed to require the issuance of a search warrant in cases in which such warrant is not required by law. This statute does not modify any statute inconsistent with it, regulating search, seizure, and the issuance and execution of search warrants in circumstances for which special provision is made.
Source: L. 72: R&RE, p. 202, § 1. C.R.S. 1963: § 39-3-307.
ANNOTATION
Annotator's note. Since § 16-3-307 is similar to repealed § 39-2-6, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.
In order for a warrantless search to be excused under exigent circumstances, probable cause must exist at the moment the arrest or the search is made. People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).
Strictness of probable cause requirements. Although the constitutional warrant requirement may be excused under exigent circumstances, the probable cause requirements are at least as strict in warrantless searches as in those pursuant to a warrant. People v. Thompson, 185 Colo. 208 , 523 P.2d 128 (1974).
Because both probable cause and exigent circumstances must be present in order to justify a warrantless search into a defendant's home and trial court found only that police entered defendant's home in the absence of exigent circumstances without first making a probable cause determination, case was remanded to trial court to determine first whether defendant informed detective that drugs were in his home, giving detective probable cause, and then to determine whether exigent circumstances justified warrantless entry into the defendant's home. People v. Mendoza-Balderama, 981 P.2d 168 (Colo. 1999).
A consent search is outside the ambit of traditional fourth amendment warrant requirements. People v. Hancock, 186 Colo. 30 , 525 P.2d 435 (1974).
But officers may not coerce occupant into waiving constitutional rights. To secure a consent search, however, the officers may not use any methods which coerce the occupant into waiving fourth amendment rights. People v. Hancock, 186 Colo. 30 , 525 P.2d 435 (1974).
Whether or not the consent which is given in a particular case is voluntary is a question to be determined by the court in light of the totality of the circumstances surrounding that consent, and the overriding inquiry is whether the consent is intelligently and freely given. People v. Hancock, 186 Colo. 30 , 525 P.2d 435 (1974).
That defendant's wife was told a warrant would be sought if her consent to search their home was not obtained does not negate the evidence which strongly supports the trial court's finding of consent. People v. Hancock, 186 Colo. 30 , 525 P.2d 435 (1974).
Where trial court evaluated conflicting testimony and evidence relevant to the issue of consent to search home without a warrant and determined that defendant did not consent to a search of his home, absent lack of evidence in the record to support the trial court's factual findings, reviewing court is bound to uphold the trial court's conclusion of lack of consent and unlawful search. People v. Mendoza-Balderama, 981 P.2d 168 (Colo. 1999).
The search of a vehicle which is made substantially contemporaneously with an arrest is permissible as an incident to such arrest. People v. Olson, 175 Colo. 140 , 485 P.2d 891 (1971).
For, if there is probable cause to obtain a warrant to search a car, police officers have the right to stop and search it without a warrant. People v. Chavez, 175 Colo. 25 , 485 P.2d 708 (1971).
Contraband discovered in defendant's car during inventory procedure was lawfully seized. People v. Roddy, 188 Colo. 55 , 532 P.2d 958 (1975).
16-3-308. Evidence - admissibility - declaration of purpose - definitions.
- Evidence which is otherwise admissible in a criminal proceeding shall not be suppressed by the trial court if the court determines that the evidence was seized by a peace officer, as described in section 16-2.5-101, as a result of a good faith mistake or of a technical violation.
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As used in subsection (1) of this section:
- "Good faith mistake" means a reasonable judgmental error concerning the existence of facts or law which if true would be sufficient to constitute probable cause.
- "Technical violation" means a reasonable good faith reliance upon a statute which is later ruled unconstitutional, a warrant which is later invalidated due to a good faith mistake, or a court precedent which is later overruled.
- Evidence which is otherwise admissible in a criminal proceeding and which is obtained as a result of a confession voluntarily made in a noncustodial setting shall not be suppressed by the trial court.
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- It is hereby declared to be the public policy of the state of Colorado that, when evidence is sought to be excluded from the trier of fact in a criminal proceeding because of the conduct of a peace officer leading to its discovery, it will be open to the proponent of the evidence to urge that the conduct in question was taken in a reasonable, good faith belief that it was proper, and in such instances the evidence so discovered should not be kept from the trier of fact if otherwise admissible. This section is necessary to identify the characteristics of evidence which will be admissible in a court of law. This section does not address or attempt to prescribe court procedure.
- It shall be prima facie evidence that the conduct of the peace officer was performed in the reasonable good faith belief that it was proper if there is a showing that the evidence was obtained pursuant to and within the scope of a warrant, unless the warrant was obtained through intentional and material misrepresentation.
Source: L. 81: Entire section added, p. 922, § 1, effective July 1. L. 85: (2)(a) and (4) amended, p. 615, §§ 3, 4, effective July 1. L. 2003: (1) amended, p. 1614, § 7, effective August 6.
Cross references: For the admissibility of evidence in proceedings under the "Colorado Children's Code", see § 19-2-803.
ANNOTATION
Law reviews. For article, "Colorado's Good-Faith Exception to the Exclusionary Rule", see 11 Colo. Law. 410 (1982). For article, "Good-Faith Exception to the Exclusionary Rule: The Fourth Amendment is Not a Technicality", see 11 Colo. Law. 704 (1982). For article, "Attacking the Seizure -- Over-coming Good Faith", see 11 Colo. Law. 2395 (1982). For note, "The Colorado Statutory Good-Faith Exception to the Exclusionary Rule : A Step Too Far?" see 53 U. Colo. L. Rev. 809 (1982). For comment, "Privacy Rights v. Law Enforcement Difficulties: The Clash of Competing Interests in New York v. Belton", see 59 U. Den. L.J. 793 (1982). For article, "Warrant Requirement -- The Burger Court Approach", see 53 U. Colo. L. Rev. 691 (1982). For article, "Search Warrants, Hearsay and Probable Cause -- The Supreme Court Rewrites the Rules", see 12 Colo. Law 1250 (1983). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with the exclusionary rule, see 61 Den. L.J. 291 (1984). For comment, "The Good Faith Exception: The Seventh Circuit Limits the Exclusionary Rule in the Administrative Context", see 61 Den. L.J. 597 (1984). For article, "United States v. Leon and Its Ramifications", see 56 U. Colo. L. Rev. 247 (1985). For article, "People v. Mitchell: The Good Faith Exception in Colorado", see 62 Den. L.J. 841 (1985). For article, "The 'Bare Bones' Affidavit Under Colorado's Good Faith Exception to the Exclusionary Rule", see 40 Colo. Law. 27 (May 2011).
Annotator's note. For annotations concerning the exclusionary rule, see § 7 of art. II, Colo. Const., and Crim. P. 26 and 41.
The link between the place to be searched and the existence of criminal activity or contraband is at the heart of fourth amendment protections. Applying the exclusionary rule to suppress the evidence seized has the salutary effect of requiring the police to use in the affidavit for the search warrant current information they have available or may obtain to establish the link. People v. Miller, 75 P.3d 1108 (Colo. 2003).
However, even if affidavit is insufficient to establish link between the place to be searched and the existence of criminal activity, if the affidavit contains objectively reasonable probable cause, as enumerated by the federal circuit courts, the good faith exception to exclusionary rule applies. People v. Hagos, 250 P.3d 596 (Colo. App. 2009).
Whether an individual conducting a search or seizure is an agent of the government is determined by the totality of the circumstances. In order to establish agency, one must show that the government encouraged, initiated, and instigated a search or seizure or that the person conducting the search acted only to assist law enforcement efforts. People v. Pilkington, 156 P.3d 477 (Colo. 2007).
A private actor's independent motive to investigate creates a strong presumption that he or she is not an agent of the government, and therefore the fourth amendment does not apply to the search. People v. Pilkington, 156 P.3d 477 (Colo. 2007).
Section inapplicable to mistaken judgment of law. A mistaken judgment of law, such as the mistaken judgment by an officer that the facts known to him are sufficient to warrant a full custodial arrest of the defendant, is insufficient to cause the application of this statute. People v. Quintero, 657 P.2d 948 (Colo. 1983), cert. granted, 463 U.S. 1206, 104 S. Ct. 62, 77 L. Ed. 2d 1386, cert. dismissed, 464 U.S. 1014, 104 S. Ct. 543, 78 L. Ed. 2d 719 (1983) (decided under subsection (2)(a) prior to 1985 amendment).
Search by police of tenant's premises based on consent by landlord is mistake of law since it is well settled that a landlord cannot give such consent. People v. Brewer, 690 P.2d 860 (Colo. 1984).
Where no warrant was ever issued and an arrest occurred as a result of incorrect information in the National Crime Information Computer (NCIC) after the period of parole had expired, an arrest was illegal, and any evidence seized as a result of such arrest cannot be covered by the good faith exception and must be suppressed. People v. Fields, 785 P.2d 611 (Colo. 1990).
Violation of fourth amendment rights found when court failed to review affidavits in support of both wiretap applications and search warrants to determine if they established probable cause after certain evidence contained in said affidavits had been struck, the court having determined that there was no statutory technical violation exception to the exclusionary rule suppressing such evidence. People v. Vazquez, 768 P.2d 721 (Colo. App. 1988), cert. denied, 787 P.2d 174 ( Colo. 1990 ).
Telephone toll records held admissible under good faith exception to exclusionary rule where affidavit underlying search warrant was insufficient because affidavit not so lacking in indicia of probable cause as to render official belief unreasonable. People v. Taylor, 804 P.2d 196 (Colo. App. 1990).
Admission of evidence seized from a defendant's residence pursuant to a defective warrant did not constitute reversible error, even though warrant was issued based on an affidavit inadvertently failing to allege facts linking defendant to the residence to be searched. People v. Deitchman, 695 P.2d 1146 (Colo. 1985).
Section does not apply to an arrest based on a warrant void from its inception due to the absence of any cause whatever for its issuance. People v. Mitchell, 678 P.2d 990 (Colo. 1984).
No technical violation where court precedent relied on was based on different facts. Technical violation was not found for good faith reliance of prior court decision where such precedent was based on different factual situation. People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 469 U.S. 855, 105 S. Ct. 181, 83 L. Ed. 2d 115 (1984).
Statutory good faith exception to exclusionary rule inapplicable where mistaken information, even if true, along with other information relied on by officer, did not constitute reasonable grounds to believe defendant committed or was committing a crime. People v. Foster, 788 P.2d 825 (Colo. 1990).
Statutory good faith exception to exclusionary rule does not exclude evidence that federal jurisprudence would admit. This section was intended to incorporate the federal exception to the exclusionary rule, it does not create a narrower rule. People v. Saint-Veltri, 935 P.2d 34 (Colo. App. 1996).
Statutory good faith exception to exclusionary rule inapplicable to evidence seized after search incident to arrest where arrest warrant is not supported by probable cause to arrest the defendant. People v. Woods, 885 P.2d 287 (Colo. App. 1994).
Good faith exception to exclusionary rule does not apply where a detective's reliance on a warrant is not objectively reasonable. Where an affidavit contains no facts that would allow a reasonable officer to conclude that probable cause for a search exists, the illegally obtained evidence is not admissible under the good faith exception to the exclusionary rule. People v. Leftwich, 869 P.2d 1260 ( Colo. 1994 ); People v. Pacheco, 175 P.3d 91 ( Colo. 2006 ); People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.
Information in deputy's affidavit, considered separately and as a whole, failed to establish a substantial basis for the magistrate's determination that probable cause existed to issue the warrant. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.
Because the information regarding drug manufacturing at defendant's home was stale when the police applied for the warrant, no reasonable police officer would have relied on it. Accordingly, the exclusionary rule operates, not the good faith exception to it. People v. Miller, 75 P.3d 1108 (Colo. 2003).
Thus, good faith exception does not apply when the police submit a defective affidavit to the county judge and continue to rely on that defective affidavit. Officers involved in obtaining and executing a search warrant have a continuing duty to exercise reasonable professional judgment. Even though a reviewing magistrate has executed the warrant, the officer must still read the affidavit and warrant carefully and must be objectively persuaded that the warrant is sufficient. People v. Randolph, 4 P.3d 477 (Colo. 2000).
Neither Colorado nor federal law purports to recognize a "good faith" exception to the exclusionary remedy for statements taken in violation of Miranda. People v. Mangum, 48 P.3d 568 (Colo. 2002).
The statute creates a presumption that an officer was acting in good faith if he or she was acting pursuant to a warrant, but the ultimate question must still be whether the officer undertook the search in the reasonable, good faith belief that it was proper. People v. Altman, 960 P.2d 1164 ( Colo. 1998 ); People v. Hagos, 250 P.3d 596 (Colo. App. 2009).
Police must act in objective good faith when applying for a warrant; the fact that a magistrate ultimately approved the warrant is not controlling. People v. Miller, 75 P.3d 1108 (Colo. 2003).
The court is restricted to the information contained within the four corners of the affidavit. Thus, it cannot bolster the insufficient affidavit with additional information not conveyed to the magistrate in the application for the warrant. People v. Miller, 75 P.3d 1108 (Colo. 2003).
Good faith exception applies when police are acting in reasonable reliance on search warrant issued by detached and neutral magistrate or judge, and the warrant is later found to be unsupported by probable cause. Exception is applicable only when such reliance is "objectively reasonable". People v. Titus, 880 P.2d 148 (Colo. 1994).
The fact that same officer filed bare bones affidavit for warrant and executed warrant bolsters trial court's conclusion that the officer's reliance on the defective affidavit was not objectively reasonable, and, consequently, the good faith exception to the exclusionary rule did not apply to shield the evidence obtained in the search. People v. Pacheco, 175 P.3d 91 (Colo. 2006).
But, it is not necessarily sufficient grounds to apply the exclusionary rule if same officer who filed bare bones affidavit for warrant also executed warrant so long as the officer could show his or her reliance on the warrant was objectively reasonable. People v. Hagos, 250 P.3d 596 (Colo. App. 2009).
The determination by an appellate court that a warrant is invalid does not mean a police officer's reliance upon that warrant was objectively unreasonable. People v. Altman, 960 P.2d 1164 (Colo. 1998).
The fact that the affidavit details activities that are lawful does not cause it to be a bare bones affidavit; a combination of otherwise lawful circumstances may well lead to a legitimate inference of criminal activity. People v. Altman, 960 P.2d 1164 (Colo. 1998).
Arrest of a person other than the one named on the warrant does not automatically preclude application of the good faith mistake exception to the exclusionary rule. If the police have reasonable grounds to believe the suspect is the intended arrestee and the warrant is constitutionally valid, the arrest of the suspect is generally valid. People v. Lewis, 813 P.2d 813 (Colo. App. 1991).
Applied in People v. Reed, 56 P.3d 96 (Colo. 2002).
16-3-309. Admissibility of laboratory test results.
- When evidence is seized in so small a quantity or unstable condition that qualitative laboratory testing will not leave a sufficient quantity of the evidence for independent analysis by the defendant's expert and when a state agent, in the regular performance of his duties, can reasonably foresee that the evidence might be favorable to the defendant, the trial court shall not suppress the prosecution's evidence if the court determines that the testing was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defendant.
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The trial court shall consider the following factors in determining, pursuant to subsection (1) of this section, whether the state has met its obligation to preserve the evidence:
- Whether or not a suspect has been identified and apprehended and whether or not the suspect has retained counsel or has had counsel appointed for him at the time of testing;
- Whether the state should have used an available test method more likely to preserve the results of seized evidence;
- Whether, when the test results are susceptible to subjective interpretation, the state should have photographed or otherwise documented the test results as evidence;
- Whether the state should have preserved the used test samples;
- Whether it was necessary for the state agency to conduct quantitative analysis of the evidence;
- Whether there is a sufficient sample for the defendant's expert to utilize for analysis and the suspect or defendant has made a specific request to preserve such sample;
- If paragraph (f) of this subsection (2) cannot be complied with, in view of the small amount of evidence, or when the state's duty to preserve the evidence would otherwise be enhanced, whether it was reasonable for the state to have contacted the defendant to determine if he wished his expert to be present during the testing.
- With regard to testing performed on blood, urine, and breath samples which form the basis for a conclusion upon which a statutory presumption arises, it is hereby declared to be the public policy of the state of Colorado that when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because the testing destroyed evidence which might have been favorable to the defense, it shall be open to the proponent of the evidence to urge that the testing in question was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defense, and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.
- For all other types of blood analysis, breath analysis, and urine analysis and for laboratory testing, such as serial number restoration, firearms testing, and gunpowder pattern testing, it is hereby declared to be the public policy of the state of Colorado that, when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because of the destruction of evidence upon which the test was performed, it shall be open to the proponent of the evidence to urge that the testing in question was performed in a reasonable, good faith belief that it was proper and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.
- Any report or copy thereof or the findings of the criminalistics laboratory shall be received in evidence in any court, preliminary hearing, or grand jury proceeding in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person. Any party may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least fourteen days before the date of such criminal trial.
- In no event shall evidence be suppressed which results from laboratory testing performed before identification of a suspect for the sole reason that the later identified suspect or his attorney was not present at the time of the testing.
- This section is necessary to identify the characteristics of evidence which will be admissible in a court of law. This section does not address or attempt to prescribe court procedure.
Source: L. 84: Entire section added, p. 483, § 1, effective July 1. L. 2012: (5) amended, (SB 12-175), ch. 208, p. 844, § 61, effective July 1.
Cross references: For statutory presumptions in alcohol-related traffic offenses, see §§ 18-3-106, 18-3-205, and 42-4-1301.
ANNOTATION
Law reviews. For article, "The Admission of Blood Alcohol Reports After Bullcoming", see 41 Colo. Law. 55 (March 2012).
Annotator's note. For cases dealing with lost or destroyed evidence decided prior to the enactment of this section, see § 25 of art. II, Colo. Const., "Criminal trials".
Subsection (5) is constitutional on its face. Subsection (5), which requires a defendant to affirmatively request a laboratory technician's presence at trial, is an acceptable precondition to a defendant's exercise of his right to confrontation and is therefore not unconstitutional. A defendant's right to confrontation is not denied as he can preserve that right, pursuant to this section, with minimal effort. People v. Mojica-Simental, 73 P.3d 15 ( Colo. 2003 ); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).
The procedure provided in subsection (5) for ensuring the presence of the laboratory technician at trial does not deny defendant the opportunity to cross-examine the technician but simply requires that the defendant decide prior to trial whether defendant will conduct a cross-examination. Subsection (5) provides the opportunity for confrontation; only the timing of the defendant's decision is changed. Hinojos-Mendoza v. People, 169 P.3d 662 ( Colo. 2007 ); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).
Burden placed on defendant by subsection (5) to request the presence of the person who prepared the report prior to trial was minimal and did not render subsection (5) facially unconstitutional. Hinojos-Mendoza v. People, 169 P.3d 662 ( Colo. 2007 ); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).
Criminal laboratory reports are testimonial statements subject to the U.S. supreme court's decision in Crawford v. Washington, 541 U.S. 36 (2004). Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007).
The laboratory report was introduced at trial to establish the elements of the offense with which defendant was charged, and, under such circumstances, the report is testimonial in nature. Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007).
An autopsy report prepared by a doctor who was not present at trial should be considered testimonial under Crawford. Because it was reasonable for the doctor to assume the statements in the autopsy report would be used in a criminal prosecution, the statements were testimonial under Crawford. People v. Merritt, 2014 COA 124 , 411 P.3d 102.
The plain meaning of "accomplish" in subsection (5) is "to execute fully: perform, achieve, fulfill", thus the prosecution should provide the person, regardless of title, who was qualified and authorized to perform, and did perform, the tests; observed the results and interpreted them; and rendered expert conclusions regarding the identity of the controlled substances present in the sample or specimen. People v. Hill, 228 P.3d 171 (Colo. App. 2009).
Lab supervisor's testimony satisfied the requirement of subsection (5) that the laboratory testing technician who accomplished the analysis be made available at trial, even though the supervisor did not directly perform the screening and confirmation tests. The supervisor reviewed the tests, analyzed the instrument data, and reviewed notes of the lab analysts. The supervisor's review was necessary to fully execute the requested urinalysis because, without this review, the results would not have been certified as accurate and mailed to the police department. Therefore, the supervisor accomplished the analysis for purposes of subsection (5). Marshall v. People, 2013 CO 51, 309 P.3d 943, cert. denied, 572 U.S. 1136, 134 S. Ct. 2661, 189 L. Ed. 2d 212 (2014).
Testimony of a forensic toxicologist who led the process of reviewing the test results, employed the quality control process, and certified the results by signing the laboratory report satisfied the requirement of subsection (5) even though the toxicologist did not complete the original testing. The fact that the toxicologist did not hold a formal supervisory position at the laboratory is immaterial. People v. Fuerst, 2019 COA 2 , __ P.3d __.
Nothing in the language of this section, its history, or in its purpose limits the applicability of this section to "state-run" or "local law enforcement" laboratories as defendant suggests. The reference to "the criminalistics laboratory" in this section is only a reference to the forensic laboratory that performed the test, the results of which are submitted into evidence. People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).
The limited application proposed by defendant is not a reasonable interpretation of the statutory language. Nothing in the definition limits the practice of "criminalistics" to state-run or local law enforcement laboratories. People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).
Defendant's rights under subsection (5) not violated when laboratory supervisor testified at trial even though she was not the person who analyzed defendant's blood alcohol concentration. Because the test results could not have been approved and certified without the supervisor's review, supervisor "performed the final and necessary step" in the testing process, and therefore accomplished the analysis. People v. Medrano-Bustamante, 2013 COA 139 , 412 P.3d 581, aff'd in part and rev'd in part on other grounds sub nom. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.
By not complying with the procedural requirements of subsection (5), defense counsel waived defendant's right to confront technician who prepared laboratory report. The right to confrontation falls into the class of rights that defense counsel can waive through strategic decisions. Waiver of this right does not require a voluntary, knowing, and intentional waiver by the defendant personally. Hinojos-Mendoza v. People, 169 P.3d 662 ( Colo. 2007 ); Coleman v. People, 169 P.3d 659 ( Colo. 2007 ); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).
A defense counsel's erroneous and unreasonable interpretation of this section does not render involuntary a defendant's waiver of his confrontation rights. People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).
Defendant's attorney's failure to comply with subsection (5) waived defendant's right to confront technician who prepared forensic report that was introduced without technician's testimony. Defendant's attorney's ignorance of the statute's requirements does not affect the waiver of the right to confrontation. Defendant received sufficient notice of the existence of the report and its possible introduction at trial. Cropper v. People, 251 P.3d 434 (Colo. 2011).
Before admitting a laboratory report pursuant to subsection (5), some factors the trial court might consider include: Whether an attorney or a pro se litigant actually knew that he was required to notify the opposing party of his desire to have the witness present; the reasons why notice was late or was not given at all; the difficulty of acquiring the presence of the witness; the significance to the case of the report and of the testimony that would be elicited from the technician; and any other pertinent circumstances. People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003).
Forensic laboratory reports are admissible in criminal proceedings without establishing the usual foundation, absent a request that the technician be made available at trial. Testimony about the reports without admitting the reports into evidence does not deny defendant any rights to confrontation or cross-examination. People v. Moses, 64 P.3d 904 (Colo. App. 2002).
Specific requirement in subsection (5) of this section that laboratory testing technician be made available at trial upon timely request overrides general hearsay exception of C.R.E. 803(6). When timely request had been made, trial court erred in admitting laboratory report without technician's testimony as a business record. People v. Williams, 183 P.3d 577 (Colo. App. 2007).
A criminalistics laboratory report may be admitted in evidence in a driving under the influence (DUI) trial without the laboratory technician's testimony because there is no conflict with the general DUI statute, and the constitutional right to confrontation is not violated on its face by requiring the defendant to affirmatively assert such right by requesting the technician to testify. However, a lack of actual notice of the opportunity to require the technician to testify or a mistaken failure to request the testimony may not constitute a voluntary waiver of the right to confrontation. People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003).
Court abused its discretion when it committed to suppress results for tests that had not yet been conducted unless the prosecution allowed the testing to be videotaped or agreed to pay the cost of the defense expert to view the testing. The court was in no position to assess the reasonableness of future conduct. People v. Wartena, 156 P.3d 469 (Colo. 2007).
Court did not err in admitting the lab test through a police officer. The defendant did not file the statutorily required request for the technician to testify in person, so the report could be introduced through another person familiar with the report. The officer did not provide expert testimony in introducing the lab test, so the admission of the report was appropriate. People v. Santana, 240 P.3d 302 (Colo. App. 2009), rev'd on other grounds, 255 P.3d 1126 ( Colo. 2011 ).
16-3-310. Oral advisement and consent prior to search of a vehicle or a person during a police contact.
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- 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).
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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, a valid search incident to or subsequent to a lawful arrest, or 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.
Source: L. 2010: Entire section added, (HB 10-1201), ch. 176, p. 638, § 1, effective April 29.
ANNOTATION
The failure of a police officer to specifically instruct a defendant that consent must be voluntary and that he or she can refuse the request to search is not determinative. A complete reading of the statute demonstrates that an officer's articulation of these two factors is only part of the totality of the circumstances analysis. People v. Munoz-Gutierrez, 2015 CO 9, 342 P.3d 439.
16-3-311. Peace officer incident recordings.
- A person has the right to lawfully record any incident involving a peace officer and to maintain custody and control of that recording and the device used to record the recording. A peace officer shall not seize a recording or recording device without consent, without a search warrant or subpoena, or without a lawful exception to the warrant requirement.
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If a peace officer seeks to obtain from a person a device used to record an incident involving a peace officer in order to access the recording as possible evidence in an investigation, the officer shall first:
- Advise the person of his or her name, his or her badge number or other identifying number, and the name of the law enforcement agency;
- Identify the legal reason for which the information is requested; and
- If practicable under the circumstances, inquire whether the person will voluntarily provide the officer with a copy of the specific recording that is relevant to the investigation either by voluntarily providing the device to the officer or immediately electronically transferring the information to the officer or the law enforcement agency so that the person may retain possession of his or her device, the recording, and any personal non-evidentiary private information contained on the device.
- If the person consents voluntarily to the transfer of the device to law enforcement, the peace officer shall limit his or her search of the device to a search for the recording that is relevant evidence to the investigation, and the device shall be returned to the person upon request and with all convenient speed.
- If the person consents to an electronic transfer of the recording, the electronic transfer shall take place as soon as possible and without unnecessary delay.
- In circumstances when the immediate electronic transfer is not practicable or if the person does not consent to the electronic transfer of the evidentiary information or to the seizure of the device, the peace officer may arrange for the transfer or delivery of the information or device with the person to the peace officer or to the law enforcement agency by any alternative means consistent with any policies and procedures of the law enforcement agency.
- Notwithstanding the provisions of this section, a peace officer has the authority to temporarily seize and maintain control over a device that was used to record an incident involving a peace officer for no longer than seventy-two hours to obtain a search warrant when exigent circumstances exist such that the peace officer believes it is necessary to save a life or when the peace officer has a reasonable, articulable, good-faith belief that seizure of the device is necessary to prevent the destruction of the evidentiary recording while a warrant is obtained.
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If a peace officer seeks to obtain from a person a device used to record an incident involving a peace officer in order to access the recording as possible evidence in an investigation, the officer shall first:
- The provisions of this section do not apply to devices seized incident to arrest.
- Nothing in this section shall be construed to allow a person to interfere with a peace officer in the lawful performance of his or her duties.
Source: L. 2015: Entire section added, (SB 15-1290), ch. 212, p. 774, § 2, effective May 20, 2016.
PART 4 RIGHTS OF PERSONS IN CUSTODY
16-3-401. Treatment while in custody.
- No unlawful means of any kind shall be used to obtain a statement, admission, or confession from any person in custody.
- Persons arrested or in custody shall be treated humanely and provided with adequate food, shelter, and, if required, medical treatment. Anyone receiving medical treatment while held in custody may be assessed a medical treatment charge as provided in section 17-26-104.5, C.R.S.
Source: L. 72: R&RE, p. 202, § 1. C.R.S. 1963: § 39-3-401. L. 97: (2) amended, p. 192, § 2, effective April 1.
ANNOTATION
Law reviews. For note, "The Admissibility of Confessions Obtained Before Arraignment -- Federal Rule", see 21 Rocky Mt. L. Rev. 98 (1948). For note, "Involuntary Confessions -- Fourth Stage in Colorado", see 31 Dicta 133 (1954).
Subsection (2) not void for vagueness. "Custody" is defined in § 16-1-104 for purposes of this part 4. Denver Health & Hosp. v. City of Arvada, 2016 COA 12 , 405 P.3d 308, rev'd on other grounds, 2017 CO 97, 403 P.3d 609.
The duty imposed by subsection (2) on a detaining governmental entity to provide medical treatment implies an inherent obligation on the part of the entity to pay the costs of such treatment. Poudre Valley Health Care, Inc. v. City of Loveland, 85 P.3d 558 (Colo. App. 2003), overruled in City of Arvada v. Denver Health & Hosp., 2017 CO 97, 403 P.3d 609.
Section does not create a private right of action for a health care provider against an entity holding a person arrested or in custody. Statute does not identify a duty owed to health care providers nor create or impute a private right of action by a health care provider. However, a health care provider may establish a claim for unjust enrichment. City of Arvada v. Denver Health & Hosp., 2017 CO 97, 403 P.3d 609 (overruling Poudre Valley Health Care Inc. v. City of Loveland, 85 P.3d 588 (Colo. App. 2003)).
16-3-402. Right to communicate with attorney and family.
- Persons who are arrested shall have the right to communicate with an attorney of their choice and a member of their family by making a reasonable number of telephone calls or by communicating in any other reasonable manner. Such communication shall be permitted at the earliest possible time after arrival at the police station, sheriff's office, jail, or other like confinement facility to which such person is first taken after arrest.
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If the accused is transferred to a new place of custody, his right to communicate with an attorney and a member of his family is renewed.
(2.5) If the victim is able to demonstrate through the use of caller identification or other credible evidence that the incarcerated defendant has called the victim from the jail or correctional facility in violation of the protection order issued pursuant to section 18-1-1001, C.R.S., or in violation of any other valid protection order or emergency protection order in effect, the defendant shall not be entitled to further telephone calls except to such defendant's attorney, which calls shall be placed by a jail or correctional facility staff member. If the defendant was arrested for violating an order not to contact certain family members, the right to contact those family members by telephone shall be prohibited, and the jail or correctional facility staff shall place all outgoing telephone calls that the defendant wishes to make that are not identified in the protection order as prohibited.
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- Consistent with the provisions of section 21-1-103, C.R.S., if any person in custody indicates in any manner his desire to speak with an attorney or the court determines that an inquiry into the matter of indigency should occur, the public defender shall be permitted to communicate with that person to determine whether that person has counsel and, if the person desires that the public defender represent him, to make an initial determination as to whether the person is indigent. If the public defender determines that the person is indigent, such person shall apply for representation by the public defender in accordance with section 21-1-103, C.R.S.
- The public defender, upon his request and with due regard for reasonable law enforcement administrative procedures, shall be permitted to determine whether or not any person in custody has been taken without unnecessary delay before the nearest available county or district judge.
Source: L. 72: R&RE, p. 202, § 1. C.R.S. 1963: § 39-3-402. L. 81: Entire section R&RE, p. 924, § 1, effective May 26. L. 86: (3)(a) amended, p. 731, § 1, effective July 1. L. 88: (3)(a) amended, p. 663, § 1, effective July 1. L. 94: (2.5) added, p. 2035, § 13, effective July 1. L. 2003: (2.5) amended, p. 1013, § 19, effective July 1. L. 2008: (2.5) amended, p. 1883, § 20, effective August 5.
ANNOTATION
Annotator's note. For further annotations concerning the right to counsel, see § 16 of art. II, of the Colo. Const.
Section codifies constitutional right to counsel. This section was enacted in 1972 as a part of the Colorado code of criminal procedure, and as such, the statute is merely a codification of the constitutional right to counsel in criminal cases. Cooper v. Dir. of Dept. of Rev., 42 Colo. App. 109, 593 P.2d 1382 (1979).
Statement during process of booking was voluntary. The identification, during the process of booking of defendants, of a baggage locker key as part of personal property, with the added statement, "Go see for yourself", cannot be challenged as not voluntary merely because defendant's father was not called before defendant was booked; nor can the failure to take defendant before a judge before defendant was booked affect the voluntariness of the identification of his personal belongings. Hubbard v. Patterson, 374 F.2d 856 (10th Cir.), cert. denied, 389 US 868, 88 S. Ct. 142, 19 L. Ed. 2d 144 (1967) (decided under repealed § 39-1-1, C.R.S. 1963).
Suppression of evidence is not the proper remedy for an alleged violation of this statute. Suppression is generally a remedy for only constitutional violations not statutory violations. People v. Clayton, 207 P.3d 831 (Colo. 2009).
16-3-403. Right to consult with attorney.
Any person committed, imprisoned, or arrested for any cause, whether or not such person is charged with an offense, shall be allowed to consult with an attorney-at-law of this state whom such person desires to see or consult, alone and in private at the place of custody, as many times and for such period each time as is reasonable. Except where extradition proceedings have been completed or are not required by law, when any such person is about to be moved beyond the limits of this state, the person to be moved shall be entitled to a reasonable delay for the purpose of obtaining counsel and of availing himself of the laws of this state for the security of personal liberty.
Source: L. 72: R&RE, p. 203, § 1. C.R.S. 1963: § 39-3-403.
ANNOTATION
Annotator's note. Since § 16-3-403 is similar to repealed laws antecedent to CSA, C 48, § 560, relevant cases construing those provisions have been included in the annotations to this section.
Language of this section and § 16-3-404 does not confer a statutory right to private attorney-client consultation which is broader than the corollary constitutional right. People v. Dehmer, 931 P.2d 460 (Colo. App. 1996).
Under this section any person restrained of his liberty for any cause whatever has the right to consult counsel. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).
And the person denied rights of such paramount importance must of necessity be the person aggrieved, for this section cannot well be held to refer to any other. McPhail v. Delaney, 48 Colo. 411, 110 P. 64 (1910).
Commitment to state hospital does not deny right. The commitment of a defendant adjudged not guilty by reason of insanity to the state hospital cannot be construed to deny the right given by this section. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).
Only remedy for violation of statutory provision is the fine provided for in § 16-3-404 (2). People v. Parsons, 15 P.3d 799 (Colo. App. 2000).
16-3-404. Duty of officers to admit attorney.
- All peace officers or persons having in custody any person committed, imprisoned, or arrested for any alleged cause shall forthwith admit any attorney-at-law in this state, upon the demand of the prisoner or of a friend, relative, spouse, or attorney of the prisoner, to see and consult the person so imprisoned, alone and in private, at the jail or other place of custody, if such person so imprisoned expressly consents to see or to consult with the attorney.
- Any peace officer or person violating the duty imposed by this section or section 16-3-403 shall forfeit and pay not less than one hundred dollars nor more than one thousand dollars to the person imprisoned or to his attorney for the benefit of the person imprisoned, to be recovered in any court of competent jurisdiction.
Source: L. 72: R&RE, p. 203, § 1. C.R.S. 1963: § 39-3-404.
Cross references: For the crime of official oppression for denial of opportunity to consult an attorney, see § 18-8-403 (1)(b).
ANNOTATION
Law reviews. For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950).
Annotator's note. Since § 16-3-404 is similar to repealed laws antecedent to CSA, C 48, § 560, relevant cases construing those provisions have been included in the annotations to this section.
Language of this section and § 16-3-403 does not confer a statutory right to private attorney-client consultation which is broader than the corollary constitutional right. People v. Dehmer, 931 P.2d 460 (Colo. App. 1996).
This section is a general statute, and in an action against a sheriff for refusing to permit counsel to consult a prisoner, it is not necessary to specifically declare upon the statute, but a complaint which states the facts is sufficient. McConathy v. Deck, 34 Colo. 232, 82 P. 702 (1905).
It is intended for benefit of prisoner. There is but one aggrieved person, either the attorney or the prisoner, and the section is plainly intended for the exclusive protection and benefit of the prisoner. The object is to give the individual restrained of his liberty the opportunity to see and consult an attorney, to determine whether he is unlawfully imprisoned, and to prepare for and properly make defense against whatever charge is preferred. McPhail v. Delaney, 48 Colo. 411, 110 P. 64 (1910).
Only remedy for violation of statutory provision is the fine provided for in subsection (2). People v. Parsons, 15 P.3d 799 (Colo. App. 2000).
Applied in Nees v. Bishop, 524 F. Supp. 1310 (D. Colo. 1981).
16-3-405. Strip searches - when authorized or prohibited.
- No person arrested for a traffic or a petty offense shall be strip searched, prior to arraignment, unless there is reasonable belief that the individual is concealing a weapon or a controlled substance or that the individual, upon identification, is a parolee or an offender serving a sentence in any correctional facility in the state or that the individual is arrested for driving while under the influence of drugs.
- As used in this section, "strip search" means having an arrested person remove or arrange some or all of his or her clothing so as to permit a visual inspection of the genitals, buttocks, anus, or female breasts of such person.
- Any strip search that is conducted shall be performed by a person of the same sex as the arrested person and on premises where the search cannot be observed by persons not physically conducting the search.
- Every peace officer or employee of a police department or sheriff's department conducting a strip search shall obtain the written permission of the police commander or an agent thereof or a sheriff or an agent thereof designated for the purposes of authorizing a strip search in accordance with this section.
- No search of any body cavity other than the mouth shall be conducted without the written permission of the police commander or an agent thereof or a sheriff or an agent thereof authorizing a body cavity search. The search must be performed under sanitary conditions and conducted by a licensed physician or nurse.
- Any peace officer or employee of a police department or a sheriff's department who knowingly or intentionally fails to comply with any provision of this section commits second degree official misconduct, as defined in section 18-8-405, C.R.S. Nothing contained in this section shall preclude prosecution of a peace officer or employee of a police department or sheriff's department under any other provision of the law.
- Nothing in this section shall be construed as limiting the statutory or common-law rights of any person for the purposes of any civil action or injunctive relief.
- The provisions of subsections (1) to (6) of this section shall not apply when, following arraignment and pursuant to a court order, the person is taken into custody by or remanded to a sheriff or a correctional facility.
Source: L. 82: Entire section added, p. 305, § 1, effective April 5.
Cross references: For definition of "controlled substance", see § 12-280-402 (1); for "driving under the influence" of any drug, see § 42-4-1301.
PART 5 WARRANTS AND BONDS FOR PERSONS ILLEGALLY IN THE COUNTRY
Cross references: For the legislative declaration contained in the 2007 act enacting this part 5, see section 1 of chapter 397, Session Laws of Colorado 2007.
16-3-501. Warrants issued for persons illegally in the country.
- If a person has posted a bond in a criminal case, at any stage of a criminal proceeding, and the person is released to the United States immigration and customs enforcement agency, the court shall issue a warrant commanding the arrest of the person when contacted anywhere within the United States and shall set the amount of the bond on the warrant. The warrant shall be entered in the Colorado crime information center and the national crime information center databases. The criminal case shall remain active for an indefinite period of time; except that the case may be dismissed upon a motion by the district attorney.
- A bond issued pursuant to this section shall include all known aliases for the person and the person's date of birth.
Source: L. 2007: Entire part added, p. 1770, § 2, effective June 1.
16-3-502. No dismissal of cases against persons illegally in the country.
- A court shall not dismiss criminal charges against a person because the person has been removed or is facing removal from the United States prior to a conviction or other disposition of all criminal charges against the person; except that the court may dismiss the criminal charges upon a motion of the district attorney.
- A court shall not dismiss criminal charges against a person who has been convicted or pled guilty to a crime because the person has been removed or is facing removal from the United States. The defendant shall serve his or her sentence and pay all restitution prior to removal.
- If the provisions of part 3 of article 4.1 of title 24, C.R.S., apply, the victim shall be consulted pursuant to the provisions of sections 24-4.1-302.5 and 24-4.1-303, C.R.S.
Source: L. 2007: Entire part added, p. 1771, § 2, effective June 1.
16-3-503. Bonds for persons with immigration-related issues.
On and after June 6, 2017, a law enforcement agency holding a defendant charged with a criminal offense shall not notify the defendant's bail bonding agent or a noncompensated surety before the bond is posted that his or her bond or fees may be forfeited if the defendant is removed from the country. On and after June 6, 2017, a law enforcement officer shall no longer ask a defendant or a person other than a bail bonding agent to execute a waiver prior to posting a bond for a person charged with a criminal offense that states that he or she understands that the bond or fees shall be forfeited if the defendant is removed from the country. A bail bonding agent shall not communicate to a defendant that his or her bond or fees shall be forfeited if the defendant is removed from the country.
Source: L. 2007: Entire part added, p. 1771, § 2, effective June 1. L. 2008: (2) amended, p. 923, § 2, effective July 1; (3)(n) amended, p. 1884, § 21, effective August 5. L. 2012: (1)(c) amended, (HB 12-1266), ch. 280, p. 1525, § 43, effective July 1. L. 2017: Entire section R&RE, (HB 17-1369), ch. 379, p. 1950, § 4, effective June 6.
Cross references: (1) For the legislative declaration contained in the 2008 act amending subsection (2), see section 1 of chapter 248, Session Laws of Colorado 2008.
(2) For the short title ("Bond Surety Protection Act") in HB 17-1369, see section 1 of chapter 379, Session Laws of Colorado 2017.
PART 6 RECORDING CUSTODIAL INTERROGATIONS
16-3-601. Recording custodial interrogations - definitions.
- On and after July 1, 2017, except as provided for in subsection (2) of this section, when a peace officer reasonably believes he or she is investigating a class 1 or class 2 felony or a felony sexual assault described in section 18-3-402, 18-3-404, 18-3-405, or 18-3-405.5, C.R.S., the peace officer shall electronically record a custodial interrogation occurring in a permanent detention facility of any person suspected of such an offense.
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Subsection (1) of this section does not apply if:
- The defendant requests the interrogation not be recorded, as long as this request is preserved by electronic recording or in writing;
- The recording equipment fails;
- Recording equipment is unavailable, either through damage or extraordinary circumstances;
- Exigent circumstances relating to public safety prevent the preservation by electronic recording; or
- The interrogation is conducted outside the state of Colorado.
- Nothing in this section prevents a court from admitting a statement made in a custodial interrogation in a permanent detention facility as rebuttal or impeachment testimony of the defendant.
- If a law enforcement agency does not make an electronic recording of the custodial interrogation as required by this section, the court may still admit evidence from the interrogation. If the prosecution, when offering the evidence from the interrogation, establishes by a preponderance of the evidence that one of the exceptions identified in subsection (2) of this section applies or the circumstances described in subsection (3) of this section apply, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet this burden of proof, the court shall provide a cautionary instruction to the jury regarding the failure to record the interrogation after admitting the evidence. The court shall instruct the jury that the failure to record the interrogation is a violation of the law enforcement agency's policy and state law and that the violation may be considered by the jury in determining the weight that is given to any statement of the defendant in violation of this policy in the course of the jury's deliberations.
- By July 1, 2017, all law enforcement agencies shall have available equipment for making electronic recordings and have in place policies and procedures for the preservation of custodial interrogations consistent with this section.
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For the purposes of this section, the following definitions apply:
- "Custodial interrogation" means any interrogation of a person while such person is in custody.
- "Custody" means restraint on a person's freedom such that a reasonable person would believe he or she is in police custody to the degree associated with a formal arrest.
- "Electronic recording" means an audio-visual recording that accurately preserves the statements of all parties to a custodial interrogation.
- "Interrogation" means words or conduct initiated by a law enforcement officer that the officer should know are reasonably likely to elicit an incriminating response from the suspect.
- "Permanent detention facility" means any building, structure, or place where persons are or may lawfully be held in custody or confinement under the jurisdiction of the state of Colorado or any political subdivision of the state of Colorado, including a building housing the offices of a law enforcement agency. "Permanent detention facility" does not include a vehicle, trailer, mobile office, or temporary structure.
Source: L. 2016: Entire part added, (HB 16-1117), ch. 329, p. 1334, § 1, effective June 10.
ARTICLE 4 RELEASE FROM CUSTODY PENDING FINAL ADJUDICATION
Editor's note: This article was repealed and reenacted in 1972. For historical information concerning the repeal and reenactment, see the editor's note before the article 1 heading.
Section
PART 1 RELEASE ON BAIL
Editor's note:
- This part 1 was numbered as article 4 of chapter 39, C.R.S. 1963. This article was repealed and reenacted in 1972, and this part 1 was subsequently repealed and reenacted in 2013, resulting in the addition, relocation, or elimination of sections as well as subject matter. For amendments to this part 1 prior to 2013, consult the 2012 Colorado Revised Statutes and the Colorado statutory research explanatory note beginning on page vii in the front of this volume.
- For historical information concerning the 1972 repeal and reenactment of this article, see the editor's note following the article 1 heading.
16-4-101. Bailable offenses - definitions.
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All persons shall be bailable by sufficient sureties except:
- For capital offenses when proof is evident or presumption is great; or
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When, after a hearing held within ninety-six hours of arrest and upon reasonable notice, the court finds that the proof is evident or the presumption is great as to the crime alleged to have been committed and finds that the public would be placed in significant peril if the accused were released on bail and such person is accused in any of the following cases:
- A crime of violence alleged to have been committed while on probation or parole resulting from the conviction of a crime of violence;
- A crime of violence alleged to have been committed while on bail pending the disposition of a previous crime of violence charge for which probable cause has been found;
- A crime of violence alleged to have been committed after two previous felony convictions, or one such previous felony conviction if such conviction was for a crime of violence, upon charges separately brought and tried under the laws of this state or under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States which, if committed in this state, would be a felony;
- A crime of possession of a weapon by a previous offender alleged to have been committed in violation of section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), C.R.S.;
- Sexual assault, as described in section 18-3-402, sexual assault in the first degree, as described in section 18-3-402, as it existed prior to July 1, 2000, sexual assault in the second degree, as described in section 18-3-403, as it existed prior to July 1, 2000, sexual assault on a child, as described in section 18-3-405, or sexual assault on a child by one in a position of trust, as described in section 18-3-405.3 in which the victim is fourteen years of age or younger and seven or more years younger than the accused.
- When a person has been convicted of a crime of violence or a crime of possession of a weapon by a previous offender, as described in section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), C.R.S., at the trial court level and such person is appealing such conviction or awaiting sentencing for such conviction and the court finds that the public would be placed in significant peril if the convicted person were released on bail.
- For purposes of this section, "crime of violence" shall have the same meaning as set forth in section 18-1.3-406 (2), C.R.S.
- In any capital case, the defendant may make a written motion for admission to bail upon the ground that the proof is not evident or that presumption is not great, and the court shall promptly conduct a hearing upon such motion. At such hearing, the burden shall be upon the people to establish that the proof is evident or that the presumption is great. The court may combine in a single hearing the questions as to whether the proof is evident or the presumption great with the determination of the existence of probable cause to believe that the defendant committed the crime charged.
- Except in the case of a capital offense, if a person is denied bail under this section, the trial of the person shall be commenced not more than ninety-one days after the date on which bail is denied. If the trial is not commenced within ninety-one days and the delay is not attributable to the defense, the court shall immediately schedule a bail hearing and shall set the amount of the bail for the person.
- When a person is arrested for a crime of violence, as defined in section 16-1-104 (8.5), or a criminal offense alleging the use or possession of a deadly weapon or the causing of bodily injury to another person, or a criminal offense alleging the possession of a weapon by a previous offender, as described in section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5), C.R.S., and such person is on parole, the law enforcement agency making the arrest shall notify the department of corrections within twenty-four hours. The person so arrested shall not be eligible for bail to be set until at least seventy-two hours from the time of his or her arrest has passed.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 820, § 2, effective May 11.
ANNOTATION
Law reviews. For article, "The Use of 'No Bond' Holds in Colorado", see 32 Colo. Law. 81 (Nov. 2003).
Annotator's note. Since § 16-4-101 is similar to § 16-4-101 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under former provisions similar to that section have been included in the annotations to this section.
Purpose of bail is to insure the defendant's presence at the time of trial and not to punish a defendant before he has been convicted. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
Proviso refers to proof of guilt. The requirement in the constitution that capital offenses are nonbailable when "the proof is evident or the presumption great" simply goes to the proof of guilt, not to the kind of proof needed for the imposition of the death penalty. Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967).
Offense does not cease to be capital where death penalty may not be imposed. Although by statute the death penalty cannot be imposed on the basis of only circumstantial evidence, the petitioner does not cease to be charged with a capital offense and thus become entitled to bail as a matter of right where the prosecution probably did not have the direct evidence necessary to seek the death penalty. The offense with which he was charged was still a capital one, even if it should later develop that the type of evidence adduced did not support a verdict imposing the death penalty. Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967).
And denial of bail unaffected by constitutionality of death penalty. The United States supreme court decision prohibiting imposition of death penalty in the circumstances then before it did not preclude denial of bail pursuant to state constitutional provision that bail may be denied where capital offense is charged when the proof is evident, or the presumption great, that defendant has committed the charged offense. People ex rel. Dunbar v. District Court, 179 Colo. 304 , 500 P.2d 358 (1972).
Standard which the constitution requires before bail may be denied is greater than probable cause though less than that required for a conviction. Gladney v. District Court, 188 Colo. 365 , 535 P.2d 190 (1975).
Guilt or innocence of the accused is not the issue in a bail hearing. Gladney v. District Court, 188 Colo. 365 , 535 P.2d 190 (1975).
Burden on prosecution to show nonbailable case. If bail is to be denied, it is incumbent upon the prosecution to come forward and show that the proof is evident or the presumption great that the crime set forth was committed by the defendant, but if evidence is not presented by the prosecution, it is incumbent upon the court, looking to the guidelines laid down by statute, to set reasonable bail in compliance with the Colorado constitution and the eighth amendment of the constitution of the United States. People ex rel. Dunbar v. District Court, 179 Colo. 304 , 500 P.2d 358 (1972).
The burden is upon the prosecution to show that the exception to the right to bail is applicable, and only with that showing can the conditional freedom secured by bail properly be denied. Gladney v. District Court, 188 Colo. 365 , 535 P.2d 190 (1975).
Denial of bail not foreclosed by fact that defendant was minor. The fact that defendant was 16 years of age, a minor, who could not be subjected to the death penalty, would not have foreclosed the denial of bail. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
Mere filing of an information or the production of evidence which would establish probable cause that the crimes charged were committed will not meet the Colorado constitutional standard for denying bail in capital cases. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
Trial judge exceeded jurisdiction but did not lose right to revoke or modify bail. The trial judge exceeded his jurisdiction by equating probable cause to the Colorado constitutional standard for denying bail in capital cases and by imposing an impermissible condition on the defendant at the time bail was granted. However, the right of the court to revoke or modify bail which has been previously granted after notice is given to the defendant was not negated. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
Only criminal defendants vested with legal rights in bail. Statutory provisions concerning bail do not purport to vest any persons other than criminal defendants with any legal rights in the determination of the terms, amount, or conditions of bail. Wimberly v. Ettenberg, 194 Colo. 163 , 570 P.2d 535 (1977).
Child does not have absolute constitutional or statutory right to bail pending adjudication of the charges filed against him in juvenile court. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).
When juvenile detainable without bail. A trial court may detain a juvenile without bail only after giving due weight to the presumption that a juvenile should be released pending a dispositional hearing except in narrowly defined circumstances where the state establishes that detention is necessary to protect the child from imminent harm or to protect others in the community from serious bodily harm which the child is likely to inflict. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).
In the event a new trial is granted in a capital case, the court is required to hold the defendant without bond until defendant requests admission to bail. Once requested, the court must hold a hearing to set bail, even if the district attorney does not contend the proof is evident or presumption great. People v. Blagg, 2015 CO 2, 340 P.3d 1137.
Applied in Stephenson v. District Court, 629 P.2d 1078 ( Colo. 1981 ); People v. Turman, 659 P.2d 1368 ( Colo. 1983 ); People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 ( Colo. 1984 ).
16-4-102. Right to bail - before conviction.
- Any person who is in custody, and for whom the court has not set bond and conditions of release pursuant to the applicable rule of criminal procedure, and who is not subject to the provisions of section 16-4-101 (5), has the right to a hearing to determine bond and conditions of release. A person in custody may also request a hearing so that bond and conditions of release can be set. Upon receiving the request, the judge shall notify the district attorney immediately of the arrested person's request, and the district attorney has the right to attend and advise the court of matters pertinent to the type of bond and conditions of release to be set. The judge shall also order the appropriate law enforcement agency having custody of the prisoner to bring him or her before the court forthwith, and the judge shall set bond and conditions of release if the offense for which the person was arrested is bailable. It is not a prerequisite to bail that a criminal charge of any kind has been filed.
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- The chief judge of each judicial district shall develop, in conjunction with representatives from sheriffs' offices, public defenders' offices, district attorneys' offices, county commissioners, and any other agencies determined necessary by the chief judge, a plan for setting bond for all in-custody defendants within forty-eight hours of arrest. In developing the plan, the county commissioners, sheriffs, and district attorneys shall provide the chief judge cost estimates of feasibility as well as any potential savings from the proposal, including jail bed costs and savings. In developing the plan, the chief judge shall evaluate the potential of utilizing new or existing audiovisual conference technology. In areas where a lack of broadband coverage makes audiovisual conferencing impossible or unreliable, the chief judge may evaluate the potential of utilizing telephonic hearings. No later than November 1, 2019, the state court administrator's office shall report to the judiciary committees of the house of representatives and the senate, or any successor committees, the plans for all twenty-two judicial districts, not including the Denver county court. The report must include an estimate of resources necessary to implement this subsection (2)(a).
- Unless extraordinary circumstances exist, a defendant, a surety on behalf of the defendant, or another third party on behalf of the defendant must be allowed to post bond within two hours after the sheriff receives the bond information from the court. Notwithstanding the provisions of this section, a sheriff may allow an individual to choose to stay in jail overnight after release when extenuating circumstances exist, including inclement weather, lack of transportation, or lack of shelter.
- The custodian of a jail shall ensure the defendant, a surety on behalf of the defendant, or another third party on behalf of the defendant is not charged more than a ten-dollar bond processing fee.
- The custodian of a jail shall also ensure the defendant, a surety on behalf of the defendant, or another third party on behalf of the defendant is not charged any additional transaction fees including kiosk fees; except that the standard credit card processing fee that the credit card company charges may be charged when a credit card is used, or, when a third-party vendor provides defendants the option to pay monetary bond with a credit card, the defendant can be required to pay up to a three-and-one-half percent credit card payment processing fee.
- Unless extraordinary circumstances exist, the custodian of a jail shall release a defendant as soon as practicable but no later than four hours after the defendant is physically present in the jail and the defendant's bond has been posted. A supervisory condition of release does not serve as a legal basis to continue to detain the defendant; except that, if the defendant is ordered released upon condition of being subject to electronic monitoring, the defendant may be held up to as long as practicable but no longer than twenty-four hours after the defendant is physically present in the jail and the defendant's bond has been posted, if such delay is necessary to ensure the defendant is fitted with electronic monitoring and the court has authorized the defendant to be held until the electronic monitor is fitted. If the court orders electronic monitoring for the protection of a specific individual, and the defendant is ordered to have no contact with that specific individual, and the judge orders that the defendant not be released without electronic monitoring based on finding that the electronic monitoring is necessary for public safety, then the time limits regarding release of the defendant in this subsection do not apply. However, if a defendant is held more than twenty-four hours after posting bond awaiting electronic monitoring fitting, the sheriff shall bring the defendant to the court the next day the court is in session and explain the reason for the delay.
- A defendant who has posted bond must be released regardless of whether the defendant has paid any outstanding fee, cost, or surcharge, including bond processing fees, booking fees, pretrial supervision fees, or electronic monitoring supervision fees.
- For purposes of this section, "extraordinary circumstances" includes an emergency that renders staff unable to process bonds and release defendants, but it does not include a lack of staffing resources or routine administrative practices.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 822, § 2, effective May 11. L. 2019: Entire section amended, (SB 19-191), ch. 288, p. 2666, § 1, effective August 2.
ANNOTATION
Law reviews. For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950).
Annotator's note. Since § 16-4-102 is similar to § 16-4-102 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
The power to grant bail derives not from the constitution, but from the common law. People v. Sanders, 185 Colo. 153 , 522 P.2d 735 (1974).
The manifest policy of this section is to encourage the giving of bail in proper cases, rather than to hold in custody at the state's expense persons accused of bailable offenses. The court should so administer cases arising under this statute as to give effect to this manifest policy. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).
When a trial court grants a motion for a new trial, a defendant is restored to the bond status that existed upon the filing of charges. In a capital case, this requires that the court hold the defendant without bond until the defendant requests admission to bail. Once requested, the court must set a hearing at which the district attorney may seek to have bail denied because the proof is evident or presumption great. Even if the district attorney does not contend the proof is evident or presumption great, the court must hold a hearing to set bail. In either circumstance, because such a hearing is a "critical stage" as defined in § 24-4.1-302, the alleged victim, or the alleged victim's family if the victim is deceased, has the right to be present and heard at the hearing. People v. Blagg, 2015 CO 2, 340 P.3d 1137.
The power to fix bail cannot be delegated. In the absence of a statute providing otherwise, the court or judicial officer vested with the power to fix bail cannot delegate such power to another. But where such power has been exercised by the proper court or officer, the act of taking and approving the bail bond is a ministerial act which may be delegated without statutory authority. Bottom v. People, 63 Colo. 114, 164 P. 697 (1917).
Hearsay evidence is admissible in bail hearings. Gladney v. District Court, 188 Colo. 365 , 535 P.2d 190 (1975).
But denial of bail may not be predicated upon hearsay alone, but such evidence may be admitted in corroboration. Gladney v. District Court, 188 Colo. 365 , 535 P.2d 190 (1975).
Child does not have absolute constitutional or statutory right to bail pending adjudication of the charges filed against him in juvenile court. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).
When child detainable without bail. A trial court may detain a juvenile without bail only after giving due weight to the presumption that a juvenile should be released pending a dispositional hearing except in narrowly defined circumstances where the state establishes that detention is necessary to protect the child from imminent harm or to protect others in the community from serious bodily harm which the child is likely to inflict. L.O.W. v. District Court, 623 P.2d 1253 (Colo. 1981).
Probationer awaiting adjudication of a petition to revoke probation or a deferred judgment is subject to § 16-4-201 (bail after conviction) because probationer has been convicted of the underlying offenses that led to probation, despite the fact that the revocation motions are based on a new charge for which the probationer is presumed innocent. People v. Johnson, 2017 COA 97 , __ P.3d __.
16-4-103. Setting and selection type of bond - criteria.
- At the first appearance of a person in custody before any court or any person designated by the court to set bond, the court or person shall determine the type of bond and conditions of release unless the person is subject to the provisions of section 16-4-101.
- If an indictment, information, or complaint has been filed and the type of bond and conditions of release have been fixed upon return of the indictment or filing of the information or complaint, the court shall review the propriety of the type of bond and conditions of release upon first appearance of a person in custody.
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- The type of bond and conditions of release shall be sufficient to reasonably ensure the appearance of the person as required and to protect the safety of any person or the community, taking into consideration the individual characteristics of each person in custody, including the person's financial condition.
- In determining the type of bond and conditions of release, if practicable and available in the jurisdiction, the court shall use an empirically developed risk assessment instrument designed to improve pretrial release decisions by providing to the court information that classifies a person in custody based upon predicted level of risk of pretrial failure.
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When the type of bond and conditions of release are determined by the court, the court shall:
- Presume that all persons in custody are eligible for release on bond with the appropriate and least-restrictive conditions consistent with provisions in paragraph (a) of subsection (3) of this section unless a person is otherwise ineligible for release pursuant to the provisions of section 16-4-101 and section 19 of article II of the Colorado constitution. A monetary condition of release must be reasonable, and any other condition of conduct not mandated by statute must be tailored to address a specific concern.
- To the extent a court uses a bond schedule, the court shall incorporate into the bond schedule conditions of release and factors that consider the individualized risk and circumstances of a person in custody and all other relevant criteria and not solely the level of offense; and
- Consider all methods of bond and conditions of release to avoid unnecessary pretrial incarceration and levels of community-based supervision as conditions of pretrial release.
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The court may also consider the following criteria as appropriate and relevant in making a determination of the type of bond and conditions of release:
- The employment status and history of the person in custody;
- The nature and extent of family relationships of the person in custody;
- Past and present residences of the person in custody;
- The character and reputation of the person in custody;
- Identity of persons who agree to assist the person in custody in attending court at the proper time;
- The likely sentence, considering the nature and the offense presently charged;
- The prior criminal record, if any, of the person in custody and any prior failures to appear for court;
- Any facts indicating the possibility of violations of the law if the person in custody is released without certain conditions of release;
- Any facts indicating that the defendant is likely to intimidate or harass possible witnesses; and
- Any other facts tending to indicate that the person in custody has strong ties to the community and is not likely to flee the jurisdiction.
- When a person is charged with an offense punishable by fine only, any monetary condition of release shall not exceed the amount of the maximum fine penalty.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 822, § 2, effective May 11. L. 2014: (1) amended, (SB 14-212), ch. 397, p. 1998, § 1, effective July 1.
ANNOTATION
Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For comment, "Bail Reform in Colorado: A Presumption of Release", see 88 U. Colo. L. Rev. 1067 (2017).
Annotator's note. Since § 16-4-103 is similar to § 16-4-103 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
The sole purpose and function of a bail bond is to produce the defendant in court then and there to answer unto a certain information herein pending against him. Herbertson v. People, 160 Colo. 139 , 415 P.2d 53 (1966).
Conditions not specified in this section are not binding upon the surety. The condition that the principal "abide the order of the court" is of this character. Tanquary v. People, 25 Colo. App. 531, 139 P. 1118 (1914).
Proper imposition of conditions. The imposition of conditions relating to the defendant's right to remain at liberty on bail that comply with the constitution is in keeping with the recommendations of the standards for criminal justice. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
However, the trial judge imposed an improper and unconstitutional condition where the bail order included the following condition: "If probable cause shall be shown to this court that any of the above offenses shall have been committed by either defendant, bond for that particular defendant shall be immediately terminated." However, the right of the court to revoke or modify bail which has been previously granted after notice is given to the defendant was not negated. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
The trial judge imposed an improper and unconstitutional condition where bail bond included condition that defendant arrested on domestic violence charges and alcohol-related misdemeanors and his agents could have no contact with victim. Although the condition was reasonably related to the statutory criterion that the court protect possible witnesses and victims from intimidation or harassment by the defendant, it also interfered with defendant's right to have his counsel effectively represent him at trial by investigating the facts surrounding the alleged event and preparing for trial. Defendant does not, however, have the right to personally contact the victim, her family, or witnesses. Martell v. County Court of Summit County, 854 P.2d 1327 (Colo. App. 1992).
The trial judge erred in ordering defendant arrested on domestic violence charges and alcohol-related misdemeanors to attend counseling for abusive men as a condition of bond since such counseling may encourage or even require participants to admit their abusive behavior. Such counseling before conviction implicates defendant's fifth amendment privilege against self-incrimination and the presumption of innocence. Martell v. County Court of Summit County, 854 P.2d 1327 (Colo. App. 1992).
Statute provides accelerated docket for defendants held in custody. The plain intent of the statute is to provide for an accelerated docket for those defendants who are being held in jail pending trial as a result of the revocation of their prior release on bond, for certain specified reasons, or as a result of an increase in the amount of bond, which would cause them to remain in custody. People v. Olds, 656 P.2d 705 ( Colo. 1983 ) (disapproved in People v. Mascarenas, 706 P.2d 404 ( Colo. 1985 )).
By this section, the legislature meant to enhance speedy trial rights of those who are kept in jail due to revoked bail or increased bail after the issue of their guilt has been raised by a plea of not guilty. People v. Olds, 656 P.2d 705 ( Colo. 1983 ) (disapproved in People v. Mascarenas, 706 P.2d 404 ( Colo. 1985 )); People v. Fields, 697 P.2d 749 (Colo. App. 1984).
And is not to benefit one who misses preliminary hearing. The general assembly did not intend that one accused of the commission of an offense should be permitted to profit from his failure to appear at the preliminary hearing and be in a better position than those other defendants who were released on bond and who had not violated the terms of their bond, or those defendants who had been unable to post bail initially and who had remained incarcerated for the entire pretrial period after arrest. People v. Olds, 656 P.2d 705 ( Colo. 1983 ) (disapproved in People v. Mascarenas, 706 P.2d 404 ( Colo. 1985 )).
A second bail bond entered after the defendant was returned to the custody of the court was not an increase of the first bond, which was forfeited and ceased to exist after the defendant failed to appear at his preliminary hearing. Therefore, the defendant's speedy trial rights were not violated when he was not brought to trial within ninety days after entry of the second bond. People v. Armendariz, 684 P.2d 252 (Colo. App. 1983).
Defendant whose bail was revoked following finding that proof was evident and presumption great in capital offense case pursuant to Art. II, § 19, Colo. Const., had no right to trial within 90 days of revocation. People v. Avery, 736 P.2d 1233 (Colo. App. 1986).
Defendant on bond may leave jurisdiction unless ordered otherwise. Generally, unless the court orders or the surety stipulates otherwise, nothing prevents a defendant on bond from leaving the jurisdiction so long as he appears at all proceedings in his case. People v. Rincon, 43 Colo. App. 155, 603 P.2d 953 (1979).
Subsection (2) modifications permitted only after arraignment. The bail modifications which are the subject of subsection (2) relate only to those bail proceedings which occur after arraignment. People v. Olds, 656 P.2d 705 ( Colo. 1983 ) (disapproved in People v. Mascarenas, 706 P.2d 404 ( Colo. 1985 )); People v. Armedariz, 684 P.2d 252 (Colo. App. 1983).
The term "supervision" used in subsection (2) does not include mandatory counseling as a condition of bond for defendant arrested on domestic violence charges and alcohol-related misdemeanors. Martell v. County Court of Summit County, 854 P.2d 1327 (Colo. App. 1992).
Applied in Stephenson v. District Court, 629 P.2d 1078 ( Colo. 1981 ); People v. Moye, 635 P.2d 194 ( Colo. 1981 ); People v. Fields, 697 P.2d 749 (Colo. App. 1984).
16-4-104. Types of bond set by the court.
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The court shall determine, after consideration of all relevant criteria, which of the following types of bond is appropriate for the pretrial release of a person in custody, subject to the relevant statutory conditions of release listed in section 16-4-105. The person may be released upon execution of:
- An unsecured personal recognizance bond in an amount specified by the court. The court may require additional obligors on the bond as a condition of the bond.
- An unsecured personal recognizance bond with additional nonmonetary conditions of release designed specifically to reasonably ensure the appearance of the person in court and the safety of any person or persons or the community;
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A bond with secured monetary conditions when reasonable and necessary to ensure the appearance of the person in court or the safety of any person or persons or the community. The financial conditions shall state an amount of money that the person must post with the court in order for the person to be released. The person may be released from custody upon execution of bond in the full amount of money to be secured by any one of the following methods, as selected by the person to be released, unless the court makes factual findings on the record with respect to the person to be released that a certain method of bond, as selected by the court, is necessary to ensure the appearance of the person in court or the safety of any person, persons, or the community:
- By a deposit with the clerk of the court of an amount of cash equal to the monetary condition of the bond;
- By real estate situated in this state with unencumbered equity not exempt from execution owned by the accused or any other person acting as surety on the bond, which unencumbered equity shall be at least one and one-half the amount of the security set in the bond;
- By sureties worth at least one and one-half of the security set in the bond; or
- By a bail bonding agent, as defined in section 16-1-104 (3.5).
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A bond with secured real estate conditions when it is determined that release on an unsecured personal recognizance bond without monetary conditions will not reasonably ensure the appearance of the person in court or the safety of any person or persons or the community. For a bond secured by real estate, the bond shall not be accepted by the clerk of the court unless the record owner of such property presents to the clerk of the court the original deed of trust as set forth in subparagraph (IV) of this paragraph (d) and the applicable recording fee. Upon receipt of the deed of trust and fee, the clerk of the court shall record the deed of trust with the clerk and recorder for the county in which the property is located. For a bond secured by real estate, the amount of the owner's unencumbered equity shall be determined by deducting the amount of all encumbrances listed in the owner and encumbrances certificate from the actual value of such real estate as shown on the current notice of valuation. The owner of the real estate shall file with the bond the following, which shall constitute a material part of the bond:
- The current notice of valuation for such real estate prepared by the county assessor pursuant to section 39-5-121, C.R.S.; and
- Evidence of title issued by a title insurance company or agent licensed pursuant to article 11 of title 10, C.R.S., within thirty-five days after the date upon which the bond is filed; and
- A sworn statement by the owner of the real estate that the real estate is security for the compliance by the accused with the primary condition of the bond; and
- A deed of trust to the public trustee of the county in which the real estate is located that is executed and acknowledged by all record owners of the real estate. The deed of trust shall name the clerk of the court approving the bond as beneficiary. The deed of trust shall secure an amount equal to one and one-half times the amount of the bond.
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Unless the district attorney consents or unless the court imposes certain additional individualized conditions of release as described in section 16-4-105, a person must not be released on an unsecured personal recognizance bond pursuant to paragraph (a) of subsection (1) of this section under the following circumstances:
- The person is presently free on another bond of any kind in another criminal action involving a felony or a class 1 misdemeanor;
- The person has a record of conviction of a class 1 misdemeanor within two years or a felony within five years, prior to the bail hearing; or
- The person has willfully failed to appear on bond in any case involving a felony or a class 1 misdemeanor charge in the preceding five years.
- A person may not be released on an unsecured personal recognizance bond if, at the time of such application, the person is presently on release under a surety bond for felony or class 1 misdemeanor charges unless the surety thereon is notified and afforded an opportunity to surrender the person into custody on such terms as the court deems just under the provisions of section 16-4-108.
- Because of the danger posed to any person and the community, a person who is arrested for an offense under section 42-4-1301 (1) or (2)(a), C.R.S., may not attend a bail hearing until the person is no longer intoxicated or under the influence of drugs. The person shall be held in custody until the person may safely attend such hearing.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 824, § 2, effective May 11. L. 2014: IP(1)(c) amended, (SB 14-212), ch. 397, p. 1998, § 2, effective July 1.
ANNOTATION
Law reviews. For comment, "Bail Reform in Colorado: A Presumption of Release", see 88 U. Colo. L. Rev. 1067 (2017).
Annotator's note. Since § 16-4-104 is similar to § 16-4-104 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
The purpose of a recognizance is not to enrich the treasury, but to serve the convenience of the party accused but not convicted, without interfering with or defeating the administration of justice. People v. Pollock, 65 Colo. 275 , 176 P. 329 (1918); Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).
A bail bond with but one surety is sufficient, notwithstanding the fact that § 19 of art. I, Colo. Const., provides for sureties, this being one of the cases where the plural includes the singular. Van Gilder v. People, 75 Colo. 515, 227 P. 386 (1924).
Sureties should be persons of sufficient financial ability and of sufficient vigilance to secure the appearance and prevent the absconding of the accused. People v. Pollock, 65 Colo. 275, 176 P. 329 (1918).
For the form and content of recognizance instrument, see Waters v. People, 4 Colo. App. 97, 35 P. 56 (1893).
For the form of bond, see People v. Mellor, 2 Colo. 705 (1875).
Deposit of percentage of full amount of bail not permitted. This section does not expressly or impliedly authorize courts to permit 10 percent cash bail deposits, and the requirement in subsection (1)(b) that the "full amount of bail" be secured negates the contention that courts may permit the deposit of a percentage of the full amount of the bail before releasing a defendant from custody. People v. District Court, 196 Colo. 116 , 581 P.2d 300 (1978).
This section does not govern bail for defendants awaiting extradition. Questions of bail for defendants awaiting extradition prior to service of a governor's warrant are governed exclusively by § 16-19-117. Fullerton v. County Court, 124 P.3d 866 (Colo. App. 2005).
Applied in People v. Lepik, 629 P.2d 1080 (Colo. 1981).
16-4-105. Conditions of release on bond.
- For each bond, the court shall require that the released person appear to answer the charge against the person at a place and upon a date certain and at any place or upon any date to which the proceeding is transferred or continued. This condition is the only condition for which a breach of surety or security on the bail bond may be subject to forfeiture.
- For a person who has been arrested for a felony offense, the court shall require as a condition of a bond that the person execute a waiver of extradition stating the person consents to extradition to this state and waives all formal procedures incidental to extradition proceedings in the event that he or she is arrested in another state while at liberty on such bail bond and acknowledging that he or she shall not be admitted to bail in any other state pending extradition to this state.
- Additional conditions of every bond is that the released person shall not commit any felony while free on such a bail bond, and the court in which the action is pending has the power to revoke the release of the person, to change any bond condition, including the amount of any monetary condition if it is shown that a competent court has found probable cause to believe that the defendant has committed a felony while released, pending the resolution of a prior felony charge.
- An additional condition of every bond in cases involving domestic violence as defined in section 18-6-800.3 (1), C.R.S., in cases of stalking under section 18-3-602, C.R.S., or in cases involving unlawful sexual behavior as defined in section 16-22-102 (9), is that the released person acknowledge the protection order as provided in section 18-1-1001 (5), C.R.S.
- An additional condition of every bond in a case of an offense under section 42-2-138 (1)(d)(I), C.R.S., of driving while such person's driver's license or privilege to drive, either as a resident or nonresident, is restrained solely or partially because of a conviction of a driving offense pursuant to section 42-4-1301 (1) or (2)(a), C.R.S., is that such person not drive any motor vehicle during the period of such driving restraint.
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- If a person is arrested for driving under the influence or driving while ability impaired, pursuant to section 42-4-1301, C.R.S., and the person has one or more previous convictions for an offense in section 42-4-1301, C.R.S., or one or more convictions in any other jurisdiction that would constitute a violation of section 42-4-1301, C.R.S., as a condition of any bond, the court shall order that the person abstain from the use of alcohol or illegal drugs, and such abstinence shall be monitored.
- A person seeking relief from any of the conditions imposed pursuant to subsection (6)(a) of this section shall file a motion with the court, and the court shall conduct a hearing upon the motion. The court shall consider whether the condition from which the person is seeking relief is in the interest of justice and whether public safety would be endangered if the condition were not enforced. When determining whether to grant relief pursuant to this subsection (6)(b), the court shall consider whether the person has voluntarily enrolled and is participating in an appropriate substance use disorder treatment program.
- Notwithstanding subsection (6)(a) or any other provision of this section, if a person possesses a valid registry identification card, as defined in section 25-1.5-106 (2)(e), that establishes that he or she is a patient who uses medical marijuana, the court shall not require as a condition of any bond that the person abstain from the use of medical marijuana.
- A person may be released on a bond with monetary condition of bond, when appropriate, as described in section 16-4-104 (1)(c).
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In addition to the conditions specified in this section, the court may impose any additional conditions on the conduct of the person released that will assist in obtaining the appearance of the person in court and the safety of any person or persons and the community. These conditions may include, but are not limited to, supervision by a qualified person or organization or supervision by a pretrial services program established pursuant to section 16-4-106. While under the supervision of a qualified organization or pretrial services program, the conditions of release imposed by the court may include, but are not limited to:
- Periodic telephone contact with the program;
- Periodic office visits by the person to the pretrial services program or organization;
- Periodic visits to the person's home by the program or organization;
- Treatment of the person's behavioral, mental health, or substance use disorder, if applicable, including residential treatment if the defendant consents to the treatment;
- Periodic alcohol or drug testing of the person;
- Domestic violence counseling for the defendant if the defendant consents to the counseling;
- Electronic or global position monitoring of the person;
- Pretrial work release for the person; and
- Other supervision techniques shown by research to increase court appearance and public safety rates for persons released on bond.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 826, § 2, effective May 11. L. 2014: (4) amended, (SB 14-212), ch. 397, p. 1999, § 3, effective July 1. L. 2015: (4) amended, (HB 15-1060), ch. 45, p. 112, § 1, effective March 20. L. 2017: (6)(b) and (8)(d) amended, (SB 17-242), ch. 263, p. 1296, § 118, effective May 25; (6)(c) added, (SB 17-178), ch. 115, p. 413, § 1, August 9.
Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.
ANNOTATION
Annotator's note. Since § 16-4-105 is similar to § 16-4-105 as it existed prior to the 2013 repeal and reenactment of this part 1, a relevant case decided under a former provision similar to that section has been included in the annotations to this section.
The primary function of bail is to assure the presence of the accused. People v. Sanders, 185 Colo. 153 , 522 P.2d 735 (1974).
And this end should be met by means which impose the least possible hardship upon the accused. People v. Sanders, 185 Colo. 153 , 522 P.2d 735 (1974).
Subsection (3) merely empowers a court to have a defendant brought before it to modify the conditions of pretrial release; therefore, the court erred in revoking the existing bond and denying defendant the right to pretrial release. A court may only revoke a defendant's bond pursuant to subsection (3) temporarily in order to change any bond conditions. People v. Jones, 2015 CO 20, 346 P.3d 44.
16-4-105.5. Notification of court reminder program.
A person released on bond pursuant to this part 1 who is ordered to appear in a court that participates in the court reminder program established in section 13-3-101 (14)(a)(I), and any person otherwise ordered to appear in a court that participates in the program, must be notified that the person can elect to provide a mobile telephone number that will be used by the court solely to provide text message reminders for future court dates and unplanned court closures, and must be provided the opportunity to provide a mobile telephone number or update a mobile telephone number for that purpose.
Source: L. 2019: Entire section added, (SB 19-036), ch. 293, p. 2687, § 3, effective August 2.
16-4-106. Pretrial services programs.
- The chief judge of any judicial district may order a person who is eligible for bond or other pretrial release to be evaluated by a pretrial services program established pursuant to this section, which program may advise the court if the person is bond eligible, may provide information that enables the court to make an appropriate decision on bond and conditions of release, and may recommend conditions of release consistent with this section. The chief judge may make such order in any or all of the counties of the chief judge's judicial district.
- The chief judge of any judicial district shall endeavor to consult, on an annual basis, with the county or counties within the judicial district in an effort to support and encourage the development by the county or counties, to the extent practicable and within available resources, of pretrial services programs that support the work of the court and evidence-based decision-making in determining the type of bond and conditions of release.
- To reduce barriers to the pretrial release of persons in custody whose release on bond with appropriate conditions reasonably assures court appearance and public safety, all counties and cities and counties are encouraged to develop a pretrial services program in consultation with the chief judge of the judicial district in an effort to establish a pretrial services program that may be utilized by the district court of such county or city and county. Any pretrial services program must be established pursuant to a plan formulated by a community advisory board created for such purpose and appointed by the chief judge of the judicial district. Membership on such community advisory board must include, at a minimum, a representative of a local law enforcement agency, a representative of the district attorney, a representative of the public defender, and a representative of the citizens at large. The chief judge is encouraged to appoint to the community advisory board at least one representative of the bail bond industry who conducts business in the judicial district, which may include a bail bondsman, a bail surety, or other designated bail industry representative. The plan formulated by such community advisory board must be approved by the chief judge of the judicial district prior to the establishment and utilization of the pretrial services program. The option contained in this section that a pretrial services program be established pursuant to a plan formulated by the community advisory board does not apply to any pretrial services program that existed before May 31, 1991.
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Any pretrial services program approved pursuant to this section must meet the following criteria:
- The program must establish a procedure for the screening of persons who are detained due to an arrest for the alleged commission of a crime so that such information may be provided to the judge who is setting the bond and conditions of release. The program must provide information that provides the court with the ability to make an appropriate initial bond decision that is based upon facts relating to the person's risk of failure to appear for court and risk of danger to the community.
- The program must make all reasonable attempts to provide the court with such information delineated in this section as is appropriate to each individual person seeking release from custody;
- The program, in conjunction with the community advisory board, must make all reasonable efforts to implement an empirically developed pretrial risk assessment tool, to be used by the program, the court, and the parties to the case solely for the purpose of assessing pretrial risk, and a structured decision-making design based upon the person's charge and the risk assessment score; and
- The program must work with all appropriate agencies and assist with all efforts to comply with sections 24-4.1-302.5 and 24-4.1-303, C.R.S.
- Any pretrial services program may also include different methods and levels of community-based supervision as a condition of release, and the program must use established methods for persons who are released prior to trial in order to decrease unnecessary pretrial detention. The program may include, but is not limited to, any of the criteria as outlined in section 16-4-105 (8) as conditions for pretrial release.
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Commencing July 1, 2012, each pretrial services program established pursuant to this section shall provide an annual report to the judicial department no later than November 1 of each year, regardless of whether the program existed prior to May 31, 1991. Notwithstanding section 24-1-136 (11)(a)(I), the judicial department shall present an annual combined report to the house and senate judiciary committees of the house of representatives and the senate, or any successor committees, of the general assembly. The report to the judicial department must include, but is not limited to, the following information:
- The total number of pretrial assessments performed by the program and submitted to the court;
- The total number of closed cases by the program in which the person was released from custody and supervised by the program;
- The total number of closed cases in which the person was released from custody, was supervised by the program, and, while under supervision, appeared for all scheduled court appearances on the case;
- The total number of closed cases in which the person was released from custody, was supervised by the program, and was not charged with a new criminal offense that was alleged to have occurred while under supervision and that carried the possibility of a sentence to jail or imprisonment;
- The total number of closed cases in which the person was released from custody and was supervised by the program, and the person's bond was not revoked by the court due to a violation of any other terms and conditions of supervision; and
- Any additional information the judicial department may request.
- For the reports required in subsection (6) of this section, the pretrial services program shall include information detailing the number of persons released on a commercial surety bond in addition to pretrial supervision, the number of persons released on a cash, private surety, or property bond in addition to pretrial supervision, and the number of persons released on any form of a personal recognizance bond in addition to pretrial supervision.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 828, § 2, effective May 11. L. 2014: (4)(c) amended, (SB 14-212), ch. 397, p. 1999, § 4, effective July 1. L. 2017: IP(6) amended, (SB 17-241), ch. 171, p. 624, § 5, effective April 28.
ANNOTATION
Annotator's note. Since § 16-4-106 is similar to § 16-4-105 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
The primary function of bail is to assure the presence of the accused. People v. Sanders, 185 Colo. 153 , 522 P.2d 735 (1974).
And this end should be met by means which impose the least possible hardship upon the accused. People v. Sanders, 185 Colo. 153 , 522 P.2d 735 (1974). Pretrial services program exceeded its statutory authority when it imposed a condition barring defendant from possessing weapons. This statute does not anticipate or permit the court to delegate authority to set conditions of bond to a pretrial services program. People v. Rickman, 178 P.3d 1202 ( Colo. 2008 ).
Pretrial services program did not exceed its statutory authority when it imposed a condition barring defendant from committing a felony while on bail. Section 16-4-103 (2)(c) requires that, as a condition of every bail bond, "the released person not commit any felony while at liberty on such bail bond". Because this prohibition is statutorily mandated, it constitutes a condition of every bail bond regardless of any action by the court or pretrial services program. People v. Rickman, 178 P.3d 1202 (Colo. 2008).
16-4-107. Hearing after setting of monetary conditions of bond.
- If a person is in custody and the court imposed a monetary condition of bond for release, and the person, after seven days from the setting of the monetary condition of bond, is unable to meet the monetary obligations of the bond, the person may file a written motion for reconsideration of the monetary conditions of the bond. The person may only file the written motion pursuant to this section one time during the pendency of the case and may only file the written motion if he or she believes that, upon presentation of evidence not fully considered by the court, he or she is entitled to a personal recognizance bond or an unsecured bond with conditions of release or a change in the monetary conditions of bond. The court shall promptly conduct a hearing on this motion for reconsideration, but the hearing must be held within fourteen days after the filing of the motion. However, the court may summarily deny the motion if the court finds that there is no additional evidence not fully considered by the court presented in the written motion. In considering the motion, the court shall consider the results of any empirically developed risk assessment instrument.
- Nothing in this section shall preclude a person from filing a motion for relief from a monetary condition of bond pursuant to section 16-4-109 at any time during the pendency of the case.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 830, § 2, effective May 11. L. 2014: Entire section amended, (SB 14-212), ch. 397, p. 1999, § 5, effective July 1.
ANNOTATION
Equal protection not violated. Persons detained pursuant to this section are not similarly situated to persons detained pursuant to § 16-4-103 and the difference in treatment accorded the two classes of detainees is rationally related to a legitimate state interest. People v. Fields, 697 P.2d 749 (Colo. App. 1984).
It is not incumbent upon defendant to affirmatively show validity of bond after the bond is executed. Stephenson v. District Court, 629 P.2d 1078 (Colo. 1981).
This section provides for notice where the amount or conditions of bail are to be altered. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
Court not to modify executed bond sua sponte. This section makes no provision for a trial court, sua sponte, to modify a defendant's bond once that bond has been executed. Stephenson v. District Court, 629 P.2d 1078 (Colo. 1981).
There is no prior notice requirement for exoneration of the surety when the principal is surrendered in open court. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
Notification of sureties when bail converted to personal recognizance. The notice provision for sureties in § 16-4-105 (1)(p) applies to a person for whom bail has not yet been fixed and who is on release under a surety bond on a pending charge different from the charge from which he seeks release on personal recognizance. Since defendant is not seeking release, but rather simply seeking to modify the type of bond on which he has already been released, the provisions of this section also do not apply. People v. Anderson, 789 P.2d 1115 (Colo. App. 1990).
16-4-108. When original bond continued.
Once a bond has been executed and the person released from custody thereon, whether a charge is then pending or is thereafter filed or transferred to a court of competent jurisdiction, the original bond shall continue in effect until final disposition of the case in the trial court. If a charge filed in the county court is dismissed and the district attorney states on the record that the charge will be refiled in the district court or that the dismissal by the county court will be appealed to the district court, the county court before entering the dismissal shall fix a return date, not later than sixty-three days thereafter, upon which the defendant must appear in the district court and continue the bond. Any bond continued pursuant to this section is subject to the provisions of section 16-4-109.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 830, § 2, effective May 11.
ANNOTATION
Annotator's note. Since § 16-4-108 is similar to § 16-4-106 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
Purpose of section. The purpose of § 16-4-201 concerning bail after conviction and this section is to authorize the court to exercise discretion rather than follow a fixed policy and to permit a recognizance to remain in effect, without the necessity of a new bond, after conviction and until disposition of the case in the trial court. Trujillo v. District Court, 131 Colo. 428 , 282 P.2d 703 (1955).
This section and § 16-4-201 must be read together and reconciled if possible. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
Where defendant entered plea of guilty, surety's obligation under recognizance bond is terminated. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
And trial court could not continue bond without first obtaining surety's consent. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
Although the trial judge may continue the original bond to final disposition, he must obtain the consent of the surety to continue it beyond conviction. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
Increase of surety's risk without his consent terminates obligation. When one undertakes a surety obligation, the surety undertakes a calculated risk, and events which materially increase that risk without consent of the surety terminate the obligation of the bond. People v. Smith, 645 P.2d 864 (Colo. App. 1982).
Effect of resettings of the case. Where there were resettings of a criminal case for trial at the same term, the contention of a surety on defendant's bond that he was discharged by these continuances without his consent was overruled. Van Gilder v. People, 75 Colo. 515, 227 P. 386 (1924).
Applied in Stephenson v. District Court, 629 P.2d 1078 (Colo. 1981).
16-4-109. Reduction or increase of monetary conditions of bond - change in type of bond or conditions of bond - definitions.
- Upon application by the district attorney or the defendant, the court before which the proceeding is pending may increase or decrease the financial conditions of bond, may require additional security for a bond, may dispense with security theretofore provided, or may alter any other condition of the bond.
- Reasonable notice of an application for modification of a bond by the defendant shall be given to the district attorney.
- Reasonable notice of application for modification of a bond by the district attorney shall be given to the defendant, except as provided in subsection (4) of this section.
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- Upon verified application by the district attorney or a bonding commissioner stating facts or circumstances constituting a breach or a threatened breach of any of the conditions of the bond, the court may issue a warrant commanding any peace officer to bring the defendant without unnecessary delay before the court for a hearing on the matters set forth in the application. Upon issuance of the warrant, the bonding commissioner shall notify the bail bond agent of record by electronic mail to the agent if available within twenty-four hours or by certified mail not more than fourteen days after the warrant is issued. At the conclusion of the hearing, the court may enter an order authorized by subsection (1) of this section. If a bonding commissioner files an application for a hearing pursuant to this subsection (4), the bonding commissioner shall notify the district attorney, for the jurisdiction in which the application is made, of the application within twenty-four hours following the filing of the application.
- As used in this subsection (4), "bonding commissioner" means a person employed by a pretrial services program as described in section 16-4-106 (3), and so designated as a bonding commissioner by the chief or presiding judge of the judicial district.
- The district attorney has the right to appear at all hearings seeking modification of the terms and conditions of bond and may advise the court on all pertinent matters during the hearing.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 830, § 2, effective May 11.
ANNOTATION
Annotator's note. Since § 16-4-109 is similar to § 16-4-107 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
Equal protection not violated. Persons detained pursuant to this section are not similarly situated to persons detained pursuant to § 16-4-103 and the difference in treatment accorded the two classes of detainees is rationally related to a legitimate state interest. People v. Fields, 697 P.2d 749 (Colo. App. 1984).
It is not incumbent upon defendant to affirmatively show validity of bond after the bond is executed. Stephenson v. District Court, 629 P.2d 1078 (Colo. 1981).
This section provides for notice where the amount or conditions of bail are to be altered. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
Court not to modify executed bond sua sponte. This section makes no provision for a trial court, sua sponte, to modify a defendant's bond once that bond has been executed. Stephenson v. District Court, 629 P.2d 1078 (Colo. 1981).
There is no prior notice requirement for exoneration of the surety when the principal is surrendered in open court. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
Notification of sureties when bail converted to personal recognizance. The notice provision for sureties in § 16-4-105 (1)(p) applies to a person for whom bail has not yet been fixed and who is on release under a surety bond on a pending charge different from the charge from which he seeks release on personal recognizance. Since defendant is not seeking release, but rather simply seeking to modify the type of bond on which he has already been released, the provisions of this section also do not apply. People v. Anderson, 789 P.2d 1115 (Colo. App. 1990).
16-4-110. Exoneration from bond liability.
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Any person executing a bail bond as principal or as surety shall be exonerated as follows:
- When the condition of the bond has been satisfied; or
- When the amount of the forfeiture has been paid; or
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- When the surety appears and provides satisfactory evidence to the court that the defendant is unable to appear before the court due to such defendant's death or the detention or incarceration of such defendant in a foreign jurisdiction if the defendant is incarcerated for a period in excess of ninety-one days and the state of Colorado has refused to extradite such defendant; except that, if the state extradites such defendant, all costs associated with such extradition shall be borne by the surety up to the amount of the bond.
- For the purposes of this paragraph (c), "costs associated with extradition" shall be calculated as and limited to the round-trip mileage between the Colorado court of jurisdiction and the location of the defendant's incarceration at the rate allowed for reimbursement pursuant to section 24-9-104, C.R.S., up to the amount of the bond.
- Upon surrender of the defendant into custody at any time before a judgment has been entered against the sureties for forfeiture of the bond, upon payment of all costs occasioned thereby. A surety may seize and surrender the defendant to the sheriff of the county wherein the bond is taken, and it is the duty of the sheriff, on such surrender and delivery to him or her of a certified copy of the bond by which the surety is bound, to take the person into custody and, by writing, acknowledge the surrender. If a compensated surety is exonerated by surrendering a defendant prior to the initial appearance date fixed in the bond, the court, after a hearing, may require the surety to refund part or all of the bond premium paid by the defendant if necessary to prevent unjust enrichment.
- After three years have elapsed from the posting of the bond, unless a judgment has been entered against the surety or the principal for the forfeiture of the bond, or unless the court grants an extension of the three-year time period for good cause shown, upon motion by the prosecuting attorney and notice to surety of record.
-
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When the surety provides satisfactory evidence to the court that the defendant has been removed from the country. The court shall exonerate the bail bond if all of the following occur:
- The surety files a motion requesting exoneration of the bail bond;
- The surety files an affidavit along with the motion stating that the surety has received information from the United States department of homeland security, the United States immigration and customs enforcement, or a foreign consulate that the defendant has been detained or removed from the United States. If the surety is unable to obtain such information from the above sources, the surety must file an affidavit that is signed under penalty of perjury by a person with personal knowledge that the defendant has been detained or removed from the United States.
- The district attorney does not object.
- If the court exonerates the liability on the bail bond pursuant to subsection (1)(f)(I) of this section and the bond premium has been paid, any collateral securing the bail bond is released.
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When the surety provides satisfactory evidence to the court that the defendant has been removed from the country. The court shall exonerate the bail bond if all of the following occur:
- If, within fourteen days after the posting of a bond by a defendant, the terms and conditions of the bond are changed or altered either by order of court or upon the motion of the district attorney or the defendant, the court, after a hearing, may order a compensated surety to refund a portion of the premium paid by the defendant, if necessary and supported by factual findings, to prevent unjust enrichment. If more than fourteen days have elapsed after posting of a bond by a defendant, the court shall not order the refund of any premium.
- Upon entry of an order for deferred prosecution as it existed before August 7, 2013, a diversion authorized by section 18-1.3-101, C.R.S., or deferred judgment as authorized in sections 18-1.3-101 and 18-1.3-102, C.R.S., sureties upon any bond given for the appearance of the defendant shall be released from liability on such bond.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 831, § 2, effective May 11; (3) amended, (HB 13-1156), ch. 336, p. 1957, § 3, effective August 7. L. 2014: (2) amended, (SB 14-212), ch. 397, p. 1999, § 6, effective July 1. L. 2017: (1)(f) added, (HB 17-1369), ch. 379, p. 1949, § 2, effective June 6.
Cross references: For the short title ("Bond Surety Protection Act") in HB 17-1369, see section 1 of chapter 379, Session Laws of Colorado 2017.
ANNOTATION
Law reviews. For note, "One Year Review of Colorado Law-1964", see 42 Den. L. Ctr. J. 140 (1965).
Annotator's note. Since § 16-4-110 is similar to § 16-4-108 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
For compensated sureties, the framework for forfeiture proceedings is provided by § 16-4-112 and not this section. People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).
An accused person released on bail, is, in contemplation of law, in the custody of his sureties. People v. Loomis, 60 Colo. 202, 152 P. 143 (1915).
In the case of exoneration of a surety, the common law considers the principal to be within the custody of the surety. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
When surety can avail himself of section. The surety has the right to avail himself of the exoneration provisions of the statute for any reason sufficient to himself. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
Where denial of motion for exoneration deemed error. Where a defendant fails to appear at a scheduled hearing, then, through the surety's efforts, is located, apprehended, and taken into custody in another state, but, through the failure of the states, the defendant is not extradited and returned to custody in Colorado, a trial judge abuses his discretion in denying the surety's motion for exoneration. People v. Campbell, 633 P.2d 509 (Colo. App. 1981).
Surety not entitled to exoneration where the defendant was temporarily in the state's custody on later charges but was not surrendered into custody on the earlier charges for which the bond was posted and he was not prevented from making the appearances required on those charges. People v. Soto-Gallegos, 953 P.2d 946 (Colo. App. 1997).
No requirement of actual or threatened breach of bail conditions in requirements for exoneration. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
Subsection (1)(b.5) does not apply to postjudgment motions for exoneration from bond liability. People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).
There is no prior notice requirement for exoneration of the surety when the principal is surrendered in open court. Vaughn v. District Court, 192 Colo. 348 , 559 P.2d 222 (1977).
When sureties may seize and surrender. Sureties may seize and surrender an accused person to the sheriff of the county in which the recognizance was taken, at any time before forfeiture and execution is ordered against them. If, at the same time, a certified copy of the recognizance is delivered to the sheriff, it is his duty to take the accused into custody, and, in writing, acknowledge the surrender. People v. Loomis, 60 Colo. 202, 152 P. 143 (1915).
Surety who surrenders his principal before final judgment is exonerated under this section. Scott v. People ex rel. Bd. of Comm'rs, 64 Colo. 396, 172 P. 9 (1918).
No common law bonding agent's privilege. Based on the requirement in § 18-1-103 (1) that all defenses to defined offenses must be codified, the common law bonding agent's privilege has been abrogated by the general assembly in the general provisions of the criminal code and the burglary statutes. Oram v. People, 255 P.3d 1032 ( Colo. 2011 ); Weinstein v. People, 255 P.3d 1057 ( Colo. 2011 ).
Surrender effective before final disposition of the case. A surety on a criminal recognizance may be released from liability thereon by the surrender of the principal, even after forfeiture and judgment against him on the bond, if he acts before final disposition of the case, extending to a review on error. Van Gilder v. City & County of Denver, 104 Colo. 76 , 89 P.2d 529 (1939).
But appearance for trial is not a surrender. The appearance of the defendant in a criminal case in court for trial is not equivalent to a surrender of his person by a surety on his bond. Van Gilder v. People, 75 Colo. 515, 227 P. 386 (1924).
Nor is incarceration after appearance date. The rule that incarceration of a principal on the return date of his bond permits relief from forfeiture of the bond has no application where the principal was at large and was not imprisoned until 30 days after the date he was to appear in Colorado, and the surety, through its agent, had the opportunity to return the principal to Colorado before judgment was entered and thus be absolved under our statutes of any liability other than costs incurred by the people by reason of the principal's failure to appear. Union Benefit Fire Ins. Co. v. People, 160 Colo. 211 , 416 P.2d 368 (1966).
However, surety not liable if principal is arrested and jailed for another offense. Under this section where, after forfeiture but before judgment against the sureties, their principal was arrested and placed in the jail of the county under a different charge than that for which the bond was given, the sureties were entitled to a discharge from liability upon their formal offer to surrender and the payment of the costs, although they did nothing towards the rearresting and returning to custody of the prisoner. And they were not liable for costs incurred in arresting and returning their principal under a different charge than the one in which the bond was given. Huston v. People ex rel. Collins, 12 Colo. App. 271, 55 P. 262 (1898).
Or if a cause brought by the state is in fact abandoned by the state, by reason of which the presence of the accused in court is no longer required or desired for trial or matters incident thereto, the purpose of the bail bond has been served, its function fulfilled and performed, and it should thenceforth be regarded as functus officio and the formal discharge of defendant and of his sureties therefrom should be entered upon application. Herbertson v. People, 160 Colo. 139 , 415 P.2d 53 (1966).
Surety needs not personally accomplish the seizure and surrender. Where defendant was stopped for a traffic offense and was taken into custody by sheriff's deputies on the outstanding warrant, surety was entitled to exoneration under this section. People v. Madison, 909 P.2d 551 (Colo. App. 1995).
The term "costs", as used in this section, includes whatever the law officers may legitimately pay out, or have a right to charge, in connection with the return of the criminal for trial. Ayres v. People, 3 Colo. App. 117, 32 P. 77 (1893).
Liability of surety for costs. Sureties must pay the expenses incurred by the county in procuring the return of their principal from another state upon a requisition. Ayres v. People, 3 Colo. App. 117, 32 P. 77 (1893).
To accomplish the purpose of giving bail, courts have been liberal in vacating judgments entered on bail bonds, exercising always a broad discretion and in proper cases preserving the equities of the public by deducting such costs and expenses as may have been incurred by the state. To hold otherwise would discourage the giving of bail and defeat the manifest purpose of the statute. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).
When court may require return of premium. A court has the discretion to require a surety to return all or a portion of the premium paid for a bail bond where the bond is terminated by court order. People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 ( Colo. 1984 ) (decided prior to enactment of subsection (1)(d) in 1985).
Subsection (1)(c) takes precedence over bond provisions. The language of subsection (1)(c) protecting against unjust enrichment takes precedence over, and nullifies, a provision in a bond purporting to make a bond premium nonrefundable. People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 ( Colo. 1984 ) (decided prior to enactment of subsection (1)(d) in 1985).
Subsection (1.5) is broader than the rule in Yording in that it permits a refund under circumstances other than an error of law, subject to the time limitation. People v. Goldsmith, 955 P.2d 561 (Colo. App. 1997).
This section does not grant authority to the court to refund a bond premium to a defendant whose surrender occurred after the defendant's required initial appearance. Under subsection (1)(d), a court may order return of the premium to prevent unjust enrichment only if the surrender occurred prior to a defendant's initial appearance. People v. Fallis, 2017 COA 131 M, __ P.3d __.
Reincarceration of the defendant on separate charges is not included among the additional grounds for exoneration of the surety. People v. Goldsmith, 955 P.2d 561 (Colo. App. 1997).
Even though both subsections (1)(c) and (1.5) were inapplicable, court had common law authority to order bond premium refund where the bond at issue did not involve a defendant, but rather a nonparty, and surety would have been unjustly enriched if allowed to retain the bond premium. People v. Gonzales, 28 P.3d 967 (Colo. App. 2001).
The 30-day limitation referred to in subsection (1.5) applies only to the interval between the posting of the bond and any changes in its terms or conditions, and not to the time within which an order for refund of bond premium must be entered. People v. Perse, 750 P.2d 923 (Colo. App. 1988).
Determination of amount of premium refund due to defendant in case of conversion of bond into release on personal recognizance. The determination of the amount of premium refund due to the defendant is a matter within the trial court's discretion, and the court may not be reversed absent an abuse of discretion. People v. Anderson, 789 P.2d 1115 (Colo. App. 1990).
"Appearance date", as used in this subsection (1)(c), includes appearance up to the date of conviction. Thus, surety was required to refund a bond premium to a defendant whom surety surrendered prior to such date. People v. Carrethers, 867 P.2d 189 (Colo. App. 1993).
Trial court correctly entered judgment of forfeiture of bond posted by surety where, even if the notice of order of forfeiture was mailed several days late, nothing in the record indicated that surety suffered any resulting prejudice or that surety asserted any grounds under this section or § 16-4-109 for setting aside the order of forfeiture or vacating the judgment. People v. King, 924 P.2d 1092 (Colo. App. 1996).
16-4-111. Disposition of security deposits upon forfeiture or termination of bond.
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- If a defendant is released upon deposit of cash in any amount or upon deposit of any stocks or bonds and the defendant is later discharged from all liability under the terms of the bond, the clerk of the court shall return the deposit to the person who made the deposit.
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- If the depositor of the cash bond is the defendant and the defendant owes court costs, fees, fines, restitution, or surcharges at the time the defendant is discharged from all liability under the terms of the bond, the court may apply the deposit toward any amount owed by the defendant in court costs, fees, fines, restitution, or surcharges if the defendant voluntarily agrees in writing to the use of the deposit for such purpose. A defendant shall not be required to agree to apply the deposit toward any amount owed by the defendant as a condition of release. If any amount of the deposit remains after paying the defendant's outstanding court costs, fees, fines, restitution, or surcharges, the court shall return the remainder of the deposit to the defendant.
- If the depositor of the cash bond is not the defendant, but the defendant owes court costs, fees, fines, restitution, or surcharges at the time the defendant is discharged from all liability under the terms of the bond, the court shall not apply the deposit toward the amount owed by the defendant in court costs, fees, fines, restitution, or surcharges. The court shall return the deposit to the depositor.
- A depositor of a cash bond who is not the defendant may deposit bond funds directly with the jail. The depositor shall not be required to pay any additional fees, costs, or surcharges other than the bond amount and bond processing fee. The depositor shall not be required to apply bond funds to the defendant's inmate account for payment of the bond and shall not be required to deposit money in the defendant's name.
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- Upon satisfaction of the terms of the bond, the clerk of the court shall execute, within fourteen days after such satisfaction, a release of any deed of trust given to secure the bond and an affidavit that states that the obligation for which the deed of trust had been recorded has been satisfied, either fully or partially, and that the release of such deed of trust may be recorded at the expense of the record owner of the property described in such deed of trust.
- If there is a forfeiture of the bond pursuant to this section, and if the forfeiture is not set aside pursuant to subsection (4) of this section, the deed of trust may be foreclosed as provided by law.
- If there is a forfeiture of the bond pursuant to this section, but the forfeiture is set aside pursuant to subsection (3) of this section, the clerk of the court shall execute a release of any deed of trust given to secure the bond and an affidavit that states that the obligation for which the deed of trust had been recorded has been satisfied, either fully or partially, and that the release of such deed of trust may be recorded at the expense of the record owner of the real estate described in such deed of trust.
- When the defendant has been released upon deposit of cash or property, upon an unsecured personal recognizance bond with a monetary condition pursuant to section 16-4-104 (1)(a) or (1)(b), or upon a surety bond secured by property, if the defendant fails to appear in accordance with the primary condition of the bond, the court shall declare a forfeiture. Notice of the order of forfeiture shall be mailed by the court to the defendant, all sureties, and all depositors or assignees of any deposits of cash or property if such sureties, depositors, or assignees have direct contact with the court, at their last-known addresses. Such notice shall be sent within fourteen days after the entry of the order of forfeiture. If the defendant does not appear and surrender to the court having jurisdiction within thirty-five days from the date of the forfeiture or within that period satisfy the court that appearance and surrender by the defendant is impossible and without fault by such defendant, the court may enter judgment for the state against the defendant for the amount of the bond and costs of the court proceedings. Any cash deposits made with the clerk of the court shall be applied to the payment of costs. If any amount of such cash deposit remains after the payment of costs, it shall be applied to payment of the judgment.
- The court may order that a forfeiture be set aside, upon such conditions as the court may impose, if it appears that justice so requires.
- If, within one year after judgment, the person who executed the forfeited bond as principal or as surety effects the apprehension or surrender of the defendant to the sheriff of the county from which the bond was taken or to the court which granted the bond, the court may vacate the judgment and order a remission less necessary and actual costs of the court.
- The provisions of this section shall not apply to appearance bonds written by compensated sureties, as defined in section 16-4-114 (2)(c), which bonds shall be subject to the provisions of section 16-4-114.
- On and after July 1, 2008, all moneys collected from payment toward a judgment entered for the state pursuant to paragraph (b) of subsection (1) of this section shall be transmitted to the state treasurer for deposit in the judicial stabilization cash fund created in section 13-32-101 (6), C.R.S.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 832, § 2, effective May 11. L. 2014: (3) amended, (SB 14-212), ch. 397, p. 2000, § 7, effective July 1. L. 2019: (1)(b) amended, (SB 19-191), ch. 288, p. 2668, § 2, effective August 2.
ANNOTATION
Annotator's note. Since § 16-4-111 is similar to § 16-4-109 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
There must be due process before any judgment may issue in connection with a bond forfeiture, and want of conformance to the procedure outlined by law is a violation of the surety's rights. Herbertson v. People, 160 Colo. 139 , 415 P.2d 53 (1966).
"Forthwith" means promptly and without unnecessary delay. Notices of orders of forfeiture which were mailed to sureties 34 days and 43 days after the entry of such orders did not comply with the "forthwith" standard. Moreno v. People, 775 P.2d 1184 (Colo. 1989).
A trial court's failure to give surety "forthwith" notice does not result in a presumption of prejudice to the surety. Moreno v. People, 775 P.2d 1184 (Colo. 1989).
Forfeiture of a bond based on a defendant's failure to appear is not disfavored. Moreno v. People, 775 P.2d 1184 (Colo. 1989).
Judgment cannot be entered same day as forfeiture. In a bail bond forfeiture proceeding at a hearing to determine whether the principal is in default, judgment against the surety cannot be entered on the same day. Herbertson v. People, 160 Colo. 139 , 415 P.2d 53 (1966).
Section does not authorize setting aside a judgment on a forfeiture; it only authorizes setting aside a forfeiture prior to judgment. People v. Caro, 753 P.2d 196 (Colo. 1988).
Judgment for penal sum or costs allowed. When it appears that the defendant was pursued, apprehended, and returned by the state, without any assistance from those answerable for his appearance, judgment should be entered for the penal sum of the bond, unless the court, in light of all of the circumstances surrounding defendant's failure to appear in the exercise of its sound discretion may see fit to enter judgment for a lesser amount. In no event should judgment be entered for an amount less than the full amount of costs occasioned by the defendant's failure to appear. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).
A judgment based on forfeiture of a criminal recognizance is final. Van Gilder v. City & County of Denver, 104 Colo. 76 , 89 P.2d 529 (1939).
Surety should act promptly where recognizance forfeited. A surety on a criminal recognizance which has been forfeited who wishes to obtain relief from liability should act promptly and while evidence against the defendant is still available. Van Gilder v. City & County of Denver, 104 Colo. 76 , 89 P.2d 529 (1939).
Acts of God, of the state, or of law relieve a surety from liability. A trial court has no jurisdiction to relieve the surety from liability on a bail bond except on grounds generally recognized by the law as excusing the performance of the undertaking, and such grounds exist only when the appearance of accused is made impossible by an act of God, an act of the state which is the beneficiary of the bond, or an act of law. Where the principal in a bail bond dies before the day of performance or is prevented by illness from appearing, the case is within the first category. Where the principal in a bail bond is in prison within the state, pursuant to a judgment of a court of competent jurisdiction of the state, the case comes within the second category. Where the party has been turned over to the federal court within the state by a prior bondsman and is serving a sentence by that court, or if the party has been arrested in the state where the obligation is given and sent out of the state by the governor upon requisition from another state or foreign jurisdiction, the case falls within the third category. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).
Where the defendant in a criminal case is imprisoned in another state at the time his case is called for trial and cannot appear pursuant to the conditions of his bond, and the surety thereon offers to defray the costs and expenses involved in returning the defendant to Colorado upon completion of the imprisonment which prevented his attendance in the trial court, the surety is relieved from a forfeiture. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).
Where the defendant is not produced at all, or turns up only after a long lapse of time, the courts will ordinarily deny remission without regard to the mitigating factors asserted in connection with his nonappearance, except in cases of death, insanity, or imprisonment. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).
Defendant who is transferred from the state's custody to a federal agency pursuant to a detainer has never been released into the legal custody of the surety who is consequently discharged from any liability on the bond. People v. Gonzales, 745 P.2d 263 (Colo. App. 1987).
Hospitalization is valid excuse for failure to appear. The defendant's hospitalization following an automobile accident is a valid excuse for his failure to appear at a scheduled hearing. People v. Smith, 673 P.2d 1026 (Colo. App. 1983).
The standard in subsection (3) is essentially an appeal to the conscience of the court. No clear rule can be set down which will guide the trial court in every case since the facts and circumstances of each individual case must be considered in their totality. No one factor will be determinative in all cases. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).
And court has discretion to relieve forfeiture for other reasons. Following the rule that the discretion is in the court to do as it sees fit about forfeiting a bond, matters which would appeal to the sympathy of the ordinary individual, even if not to a judge, should be put in evidence. Allison v. People, 132 Colo. 156 , 286 P.2d 1102 (1955).
The decision as to whether or not a forfeited bond should be remitted is entrusted to the trial court's discretion by subsection (3) of this section and Crim. P. 46. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).
Trial court abused its discretion where the sureties made substantial efforts to locate, seize, and surrender defendant to authorities, and defendant was in custody in the adjoining county due principally to the efforts of the sureties. People v. Mendez, 708 P.2d 126 (Colo. App. 1985).
Forfeiture proceeding not to enrich public treasury. The enriching of the public treasury is not part of the object at which a forfeiture proceeding is aimed. People v. Campbell, 633 P.2d 509 (Colo. App. 1981).
Effect of material increase of risk to bondsman. When a bondsman enters into a surety agreement, he undertakes a calculated risk, so that events which materially increase that risk have the effect of terminating the obligation. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).
Court not required to notify surety of defendant's permitted absence. Neither the case law nor subsection (2) imposes a duty on the court to give a surety notice of the permitted absence of a defendant from a hearing. People v. Smith, 673 P.2d 1026 (Colo. App. 1983).
By approving defendant's departure from state without notice to surety, the court terminates any control the surety might have had over the defendant and the court's action discharges the surety from any obligation under a bail bond. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).
Words "without leave" in the bond do not include departure from the jurisdiction of the court. But where the defendant given permission to absent himself only from the court and not from the court's jurisdiction, the court complies with the existing conditions of the bond contract, rather than changing them, materially or otherwise. People v. Smith, 673 P.2d 1026 (Colo. App. 1983).
Considerations in determining whether to order remission of forfeited bond. In exercising its discretion as to whether to order remission of a forfeited bond, the trial court may consider whether the defendant has been produced within a reasonable time after forfeiture, whether the people have lost any rights against the defendant, whether the defendant's failure to appear was wilful, and whether a forfeiture will subject the surety to an extreme hardship. People v. Schliesser, 39 Colo. App. 54, 563 P.2d 377, rev'd on other grounds sub nom. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).
Such as hardship to surety. When state incurred no expenses and lost no legal rights due to defendant's nonappearance and guarantor of bond was subjected to extreme hardship due to monthly payments on the bond, the trial court abused its discretion in denying a motion for return of the forfeited bond. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977).
The only factor which the courts of this state have considered as basis for remission where the principal disappears is whether the surety will thereby suffer extreme hardship, such hardships as will cause destitution to a family, deprive children of support and education, or creditors of their just debts. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).
Where defendant is produced within reasonable time after forfeiture, remission will be granted to a surety if the people have not lost any rights as a result of his nonappearance, especially if his failure to appear was other than deliberate and wilful. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).
Where the accused had not been returned to custody at the time of the hearing on the motion to remit the bond, and where the guarantor did not establish that he would suffer extreme hardship as a result of the forfeiture, the trial court did not abuse its discretion by denying the motion for reimbursement. People v. Gossett, 680 P.2d 1323 (Colo. App. 1984).
One of the functions of a bond is to relieve state of burden of securing appearance in court by giving bondsman a strong incentive to insure such attendance. Where person posting bond made money available to the court and did all that could be expected in attempting to secure defendant's attendance in court, purposes of bond were served and state will not be penalized by bond's remittance. People v. Saviano, 677 P.2d 414 (Colo. App. 1983).
Setting aside of bond forfeitures not warranted by this section where the defendant, released on bail after posting of bond, failed to appear at her hearing because police had told her that she would be arrested on another charge as soon as the arrest warrant for her was located. People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979).
Limitation on reversal of decision not to order remission. The decision not to order remission of a forfeited bond may be reversed only if it appears that the trial court has abused its discretion. People v. Schliesser, 39 Colo. App. 54, 563 P.2d 377, rev'd on other grounds sub nom. Owens v. People, 194 Colo. 389 , 572 P.2d 837 (1977); People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979); People v. Saviano, 677 P.2d 414 (Colo. App. 1983).
Determination of "material increase of risk" to bondsman dependent upon terms of bond agreement. The court must look to the bond agreement to determine whether a trial court's action in allowing withdrawal of a guilty plea materially increases the risk of the bondsman and terminates the bondsman's surety obligation. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976); People v. Tyler, 797 P.2d 22 ( Colo. 1990 ).
Failure of district attorney to seek international extradition of defendant does not exonerate surety from liability where the defendant, a Mexican national, is located by surety in Mexico and it is known that Mexico does not extradite its nationals. People v. Bustamante-Payan, 856 P.2d 42 (Colo. App. 1993).
Applied in People v. Walker, 665 P.2d 154 (Colo. App. 1983), aff'd sub nom. Yording v. Walker, 683 P.2d 788 ( Colo. 1984 ).
16-4-112. Enforcement when forfeiture not set aside.
By entering into a bond, each obligor, whether he or she is the principal or a surety, submits to the jurisdiction of the court. His or her liability under the bond may be enforced, without the necessity of an independent action, as follows: The court shall order the issuance of a citation directed to the obligor to show cause, if any there be, why judgment should not be entered against him or her forthwith and execution issue thereon. Said citation may be served personally or by certified mail upon the obligor directed to the address given in the bond. Hearing on the citation shall be held not less than twenty-one days after service. The defendant's attorney and the prosecuting attorney shall be given notice of the hearing. At the conclusion of the hearing, the court may enter a judgment for the state and against the obligor, and execution shall issue thereon as on other judgments. The district attorney shall have execution issued forthwith upon the judgment and deliver it to the sheriff to be executed by levy upon the stocks, bond, or real estate which has been accepted as security for the bond.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 834, § 2, effective May 11.
ANNOTATION
Annotator's note. Since § 16-4-112 is similar to § 16-4-110 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision and former provisions similar to that section have been included in the annotations to this section.
Following proper forfeiture, the court should issue a citation, or other process in the nature of scire facias, directing those against whom judgment is sought to appear and answer within a reasonable time. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).
Following an order declaring a bond forfeited, the court should issue a citation or other process in the nature of scire facias, as provided in this section and Crim. P. 46, ordering the surety to show cause why judgment should not be entered against him. E. & E. Bonding Co. v. People, 160 Colo. 185 , 415 P.2d 860 (1966).
Bond is not debt until forfeiture. Where no order is ever entered by the trial court in a criminal case declaring a bail bond forfeited nor a citation or other process issued as provided in this section and Crim. P. 46, it follows that the defense that a civil complaint against the sureties for a debt on the bond failed to state a claim upon which relief could be granted is good. E & E Bonding Co. v. People, 160 Colo. 185 , 415 P.2d 860 (1966).
Unnecessary to grant delay while surety searches for principal. To grant delay in order that sureties have time to search for, produce, and surrender the defendant would be without warrant. People v. Johnson, 155 Colo. 392 , 395 P.2d 19 (1964).
Effect of material increase of risk to bondsman. When a bondsman enters into a surety agreement, he undertakes a calculated risk, so that events which materially increase that risk have the effect of terminating the obligation. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).
By approving defendant's departure from state without notice to surety, the court terminates any control the surety might have had over the defendant and the court's action discharges the surety from any obligation under a bail bond. People v. Calloway, 40 Colo. App. 543, 577 P.2d 1109 (1978).
16-4-113. Type of bond in certain misdemeanor cases.
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In exercising the discretion mentioned in section 16-4-104, the judge shall release the accused person upon personal recognizance if the charge is a class 3 misdemeanor or any unclassified offense for a violation of which the maximum penalty does not exceed six months' imprisonment, and he or she shall not be required to supply a surety bond, or give security of any kind for his or her appearance for trial other than his or her personal recognizance, unless one or more of the following facts are found to be present:
- The arrested person fails to sufficiently identify himself or herself; or
- The arrested person refuses to sign a personal recognizance; or
- The continued detention or posting of a surety bond is necessary to prevent imminent bodily harm to the accused or to another; or
- The arrested person has no ties to the jurisdiction of the court reasonably sufficient to assure his or her appearance, and there is substantial likelihood that he or she will fail to appear for trial if released upon his or her personal recognizance; or
- The arrested person has previously failed to appear for trial for an offense concerning which he or she had given his written promise to appear; or
- There is outstanding a warrant for his or her arrest on any other charge or there are pending proceedings against him or her for suspension or revocation of parole or probation.
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- For a defendant charged with a traffic offense, a petty offense, or a comparable municipal offense, a court shall not impose a monetary condition of release. If the comparable municipal offense is a property crime and the factual basis reflects a value of less than fifty dollars and the offense would be a petty offense under state law, this subsection (2)(a) applies.
- For a defendant charged with a municipal offense for which there is no comparable state misdemeanor offense, the court shall not impose a monetary condition of release.
- After arrest, but prior to an individual consideration of bond by a judge, bonding commissioner, judicial officer, or judicial designee with the power to set conditions of release, this subsection (2) does not prohibit the release of a defendant pursuant to local pretrial release policies, including those that require payment of a monetary condition of release, if the defendant is first informed that the defendant is entitled to release on a personal recognizance bond.
- Nothing in this subsection (2) prohibits the issuance of a warrant with monetary conditions of bond for a defendant who fails to appear in court as required or who violates a condition of release. If a defendant is unable to post the monetary condition of bond prior to the next individualized consideration of bond, the judge, bonding commissioner, judicial officer, or judicial designee with the power to set conditions of release shall release the person on personal recognizance.
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The provisions of this subsection (2) do not apply to:
- A traffic offense involving death or bodily injury or a municipal offense with substantially similar elements;
- Eluding or attempting to elude a police officer as described in section 42-4-1413 or a municipal offense with substantially similar elements;
- Operating a vehicle after circumventing an interlock device as described in section 42-2-132.5 (10) or a municipal offense with substantially similar elements; and
- A municipal offense that has substantially similar elements to a state misdemeanor offense.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 834, § 2, effective May 11. L. 2019: IP(1) amended and (2) added, (HB 19-1225), ch. 132, p. 590, § 1, effective April 25.
16-4-114. Enforcement procedures for compensated sureties - definitions.
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- The general assembly hereby finds, determines, and declares that the simplicity, effectiveness, and uniformity of bail forfeiture procedures applicable to compensated sureties who are subject to the regulatory authority of the Colorado division of insurance are matters of statewide concern.
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It is the intent of the general assembly in adopting this section to:
- Adopt a board system that will simplify and expedite bail forfeiture procedures by authorizing courts to bar compensated sureties who fail to pay forfeiture judgments from writing further bonds;
- Minimize the need for day-to-day involvement of the division of insurance in routine forfeiture enforcement; and
- Reduce court administrative workload.
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As used in this section, unless the context otherwise requires:
- "Bail insurance company" means an insurer as defined in section 10-1-102 (13), C.R.S., engaged in the business of writing appearance bonds through bonding agents, which company is subject to regulation by the division of insurance in the department of regulatory agencies.
- "Board system" means any reasonable method established by a court to publicly post or disseminate the name of any compensated surety who is prohibited from posting bail bonds.
- "Compensated surety" means any person who is in the business of writing appearance bonds and who is subject to regulation by the division of insurance in the department of regulatory agencies, including bonding agents and bail insurance companies. Nothing in this paragraph (c) authorizes bail insurance companies to write appearance bonds except through bail bonding agents.
- "On the board" means that the name of a compensated surety has been publicly posted or disseminated by a court as being ineligible to write bail bonds pursuant to paragraph (e) or (f) of subsection (5) of this section.
- Each court of record in this state shall implement a board system for the recording and dissemination of the names of those compensated sureties who are prohibited from posting bail bonds in the state due to an unpaid judgment as set forth in this section.
- By entering into a bond, each obligor, including the bond principal and compensated surety, submits to the jurisdiction of the court and acknowledges the applicability of the forfeiture procedures set forth in this section.
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Liability of bond obligors on bonds issued by compensated sureties may be enforced, without the necessity of an independent action, as follows:
- In the event a defendant does not appear before the court and is in violation of the primary condition of an appearance bond, the court may declare the bond forfeited.
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- If a bond is declared forfeited by the court, notice of the bail forfeiture order shall be served on the bonding agent by certified mail and on the bail insurance company by regular mail within fourteen days after the entry of said forfeiture. If the compensated surety on the bond is a cash bonding agent, only the cash bonding agent shall be notified of the forfeiture. Service of notice of the bail forfeiture on the defendant is not required.
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The notice described in subparagraph (I) of this paragraph (b) shall include, but need not be limited to:
- A statement intended to inform the compensated surety of the entry of forfeiture;
- An advisement that the compensated surety has the right to request a show cause hearing pursuant to subparagraph (III) of this paragraph (b) within fourteen days after receipt of notice of forfeiture, by procedures set by the court; and
- An advisement that if the compensated surety does not request a show cause hearing pursuant to subparagraph (III) of this paragraph (b), judgment shall be entered upon expiration of thirty-five days following the entry of forfeiture.
- A compensated surety, upon whom notice of a bail forfeiture order has been served, shall have fourteen days after receipt of notice of such forfeiture to request a hearing to show cause why judgment on the forfeiture should not be entered for the state against the compensated surety. Such request shall be granted by the court and a hearing shall be set within thirty-five days after entry of forfeiture or at the court's earliest convenience. At the conclusion of the hearing requested by the compensated surety, if any, the court may enter judgment for the state against the compensated surety, or the court may in its discretion order further hearings. Upon expiration of thirty-five days after the entry of forfeiture, the court shall enter judgment for the state against the compensated surety if the compensated surety did not request within fourteen days after receipt of notice of such forfeiture a hearing to show cause.
- If such a show cause hearing was timely set but the hearing did not occur within thirty-five days after the entry of forfeiture, any entry of judgment at the conclusion of the hearing against the compensated surety shall not be vacated on the grounds that the matter was not timely heard. If judgment is entered against a compensated surety upon the conclusion of a requested show cause hearing, and such hearing did not occur within thirty-five days after the entry of forfeiture, execution upon said judgment shall be automatically stayed for no more than one hundred twenty-six days after entry of forfeiture.
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- If at any time prior to the entry of judgment, the defendant appears in court, either voluntarily or in custody after surrender or arrest, the court shall on its own motion direct that the bail forfeiture be set aside and the bond exonerated at the time the defendant first appears in court; except that, if the state extradites such defendant, all necessary and actual costs associated with such extradition shall be borne by the surety up to the amount of the bond.
- If, at a time prior to the entry of judgment, the surety provides proof to the court that the defendant is in custody in any other jurisdiction within the state, the court shall on its own motion direct that the bail forfeiture be set aside and the bond exonerated; except that, if the court extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond. If the court elects to extradite the defendant, any forfeiture will be stayed until such time the defendant appears in the court where the bond returns.
- A compensated surety shall be exonerated from liability upon the bond by satisfaction of the bail forfeiture judgment, surrender of the defendant, or order of the court. If the surety provides proof to the court that the defendant is in custody in any other jurisdiction within the state, within ninety-one days after the entry of judgment, the court shall on its own motion direct that the bail forfeiture judgment be vacated and the bond exonerated; except that, if the court extradites the defendant, all necessary and actual costs associated with the extradition shall be borne by the surety up to the amount of the bond. If the court elects to extradite the defendant, any judgment will be stayed until the time the defendant appears in the court where the bond returns.
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A compensated surety shall be exonerated from liability upon the bond when the surety provides satisfactory evidence to the court that the defendant has been removed from the country pursuant action by a federal immigration agency while on bond. The court shall exonerate the bail bond if all of the following occur:
- The compensated surety files a motion requesting exoneration of the bail bond;
- The compensated surety files an affidavit along with the motion stating that the compensated surety has received information from the United States department of homeland security, the United States immigration and customs enforcement, or a foreign consulate that the defendant has been detained or removed from the United States. If the compensated surety is unable to obtain such information from the above sources, the compensated surety must file an affidavit that is signed under penalty of perjury by a person with personal knowledge that the defendant has been detained or removed from the United States.
- The district attorney does not object.
- If the court exonerates the liability on the bail bond pursuant to subsection (5)(b)(VI) of this section and the bond premium has been paid, any collateral securing the bail bond is released.
- Execution upon said bail forfeiture judgment shall be automatically stayed for ninety-one days from the date of entry of judgment; except that, if judgment is entered against a compensated surety upon the conclusion of a requested show cause hearing, and such hearing did not occur within thirty-five days after the entry of forfeiture, the judgment shall be automatically stayed as set forth in subparagraph (IV) of paragraph (b) of this subsection (5).
- Upon the expiration of the stay of execution described in paragraph (c) of this subsection (5), the bail forfeiture judgment shall be paid forthwith by the compensated surety, if not previously paid, unless the defendant appears in court, either voluntarily or in custody after surrender or arrest, or the court enters an order granting an additional stay of execution or otherwise vacates the judgment.
- If a bail forfeiture judgment is not paid on or before the expiration date of the stay of execution described in paragraph (c) of this subsection (5), the name of the bonding agent shall be placed on the board of the court that entered the judgment. The bonding agent shall be prohibited from executing any further bail bonds in this state until the judgment giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court.
- If a bail forfeiture judgment remains unpaid for thirty-five days after the name of the bonding agent is placed on the board, the court shall send notice by certified mail to the bail insurance company for whom the bonding agent has executed the bond that if said judgment is not paid within fourteen days after the date of mailing of said notice, the name of the bail insurance company shall be placed on the board and such company shall be prohibited from executing any further bail bonds in this state until the judgment giving rise to placement on the board is satisfied, vacated, or otherwise discharged by order of the court.
- A compensated surety shall be removed forthwith from the board only after every judgment for which the compensated surety was placed on the board is satisfied, vacated, or discharged or stayed by entry of an additional stay of execution. No compensated surety shall be placed on the board in the absence of the notice required by paragraph (b) or (f) of this subsection (5).
- The court may order that a bail forfeiture judgment be vacated and set aside or that execution thereon be stayed upon such conditions as the court may impose, if it appears that justice so requires.
- A compensated surety shall be exonerated from liability upon the bond by satisfaction of the bail forfeiture judgment, surrender of the defendant, or by order of the court. If the defendant appears in court, either voluntarily or in custody after surrender or arrest, within ninety-one days after the entry of judgment, the court, at the time the defendant first appears in court, shall on its own motion direct that the bail forfeiture judgment be vacated and the bond exonerated; except that, if the state extradites such defendant, all necessary and actual costs associated with such extradition shall be borne by the surety up to the amount of the bond.
- If, within one year after payment of the bail forfeiture judgment, the compensated surety effects the apprehension or surrender of the defendant and provides reasonable notice to the court to which the bond returns that the defendant is available for extradition, the court shall vacate the judgment and order a remission of the amount paid on the bond less any necessary and actual costs incurred by the state and the sheriff who has actually extradited the defendant.
- Bail bonds shall be deemed valid notwithstanding the fact that a bond may have been written by a compensated surety who has been placed on the board pursuant to paragraph (e) or (f) of this subsection (5) and is otherwise prohibited from writing bail bonds. The ineligibility of a compensated surety to write bonds because the name of the compensated surety has been placed on the board pursuant to paragraph (e) or (f) of this subsection (5) shall not be a defense to liability on any appearance bond accepted by a court.
- The automatic stay of execution upon a bail forfeiture judgment as described in paragraph (c) of this subsection (5) shall expire pursuant to its terms unless the defendant appears and surrenders to the court having jurisdiction or satisfies the court that appearance and surrender by the defendant was impossible and without fault by such defendant. The court may order that a forfeiture be set aside and judgment vacated as set forth in paragraph (h) of this subsection (5).
- A bail insurance company shall not write bail bonds unless through a licensed bail bonding agent.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 835, § 2, effective May 11. L. 2017: (5)(b)(VI) and (5)(b)(VII) added, (HB 17-1369), ch. 379, p. 1950, § 3, effective June 6.
Cross references: For the short title ("Bond Surety Protection Act") in HB 17-1369, see section 1 of chapter 379, Session Laws of Colorado 2017.
ANNOTATION
Annotator's note. Since § 16-4-114 is similar to § 16-4-112 as it existed prior to the 2013 repeal and reenactment of this part 1, relevant cases decided under that provision have been included in the annotations to this section.
Subsection (5)(h) authorizes a trial court to order that a bail forfeiture judgment be set aside upon such conditions as the court may impose, "if it appears that justice so requires". This standard is essentially an appeal to the conscience of the court. No clear rule can be set down that will guide the trial court in every instance, because the court must consider the totality of facts and circumstances in each individual case. People v. Escalera, 121 P.3d 306 (Colo. App. 2005); People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).
Factors the court should consider include: (1) The willfulness of the defendant's violations of the conditions of bail; (2) the surety's participation in locating or apprehending the defendant; (3) the cost, inconvenience, and prejudice suffered by the state resulting from the violation; (4) any intangible costs; (5) the public interest in ensuring the defendant's appearance; and (6) any other mitigating factors. These factors encompass the principle that generally only acts of God, of the state, or of law will relieve a surety from liability. People v. Bustamante-Payan, 856 P.2d 42 (Colo. App. 1993) (decided under former § 16-4-109 (3) ); People v. Escalera, 121 P.3d 306 (Colo. App. 2005); People v. Diaz-Garcia, 159 P.3d 679 (Colo. App. 2006).
In exercising its discretion, a trial court should be mindful of the policies concerning bail, including the policy that sureties should not be penalized when it appears they are unable, through no fault of their own, to perform the condition of the bond. People v. Escalera, 121 P.3d 306 (Colo. App. 2005).
16-4-115. Severability.
If any provision of this part 1 or the application thereof to any person or circumstance is held invalid, such invalidity does not affect other provisions or applications of this part 1 that can be given effect without the invalid provision or application, and to this end the provisions of this part 1 are declared to be severable.
Source: L. 2013: Entire part R&RE, (HB 13-1236), ch. 202, p. 839, § 2, effective May 11.
PART 2 BAIL AFTER CONVICTION
16-4-201. Bail after conviction.
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- After conviction, either before or after sentencing, the defendant may orally, or in writing, move for release on bail pending determination of a motion for a new trial or motion in arrest of judgment or during any stay of execution or pending review by an appellate court, and, except in cases where the defendant has been convicted of a capital offense, the trial court, in its discretion, may continue the bond given for pretrial release, or may release the defendant on bond with additional conditions including monetary conditions, or require bond under one or more of the alternatives set forth in section 16-4-104.
- The district attorney must be present at the time the court passes on a defendant's motion for release on bail after conviction.
- Bond shall not be continued in effect following a plea of guilty or of nolo contendere or following conviction unless the written consents of the sureties, if any, are filed with the court. In the initial bond documents filed with the court, a surety shall indicate, in writing and at the time of the posting of bond, if the surety consents to the continuance of the bond through sentencing of the defendant. If the surety does not provide written consent at the time of the initial posting of bond, the surety may provide written consent at the time of the plea of guilty or nolo contendere or within a reasonable time thereafter as determined by the court. A court shall not require the posting of any form of bond that allows for the continuance of said bond after a plea of guilty or of nolo contendere or following conviction without filing with the court the written consents of the sureties, if any.
- For a defendant who has been convicted of a felony offense, a condition of bail bond shall be that the court shall require the defendant to execute or subscribe a written prior waiver of extradition stating that the defendant consents to extradition to this state and waives all formal procedures incidental to extradition proceedings in the event that he or she is arrested in another state while released on such bail bond and acknowledging that he or she shall not be admitted to bail in any other state pending extradition to this state.
- After conviction, a defendant who is granted probation pursuant to section 18-1.3-202, C.R.S., may orally, or in writing, move for a stay of probation pending determination of a motion for a new trial or a motion in arrest of judgment or pending review by an appellate court. The trial court, in its discretion, may grant a stay of probation and require the defendant to post an appeal bond under one or more of the alternatives set forth in section 16-4-104. The district attorney shall be present at the time the court passes on a defendant's motion for stay of probation after conviction.
Source: L. 72: R&RE, p. 209, § 1. C.R.S. 1963: § 39-4-201. L. 85: Entire section amended, p. 621, § 3, effective July 1. L. 94: Entire section amended, p. 97, § 2, effective July 1. L. 2002: (2) amended, p. 1490, § 131, effective October 1. L. 2006: (1) amended, p. 341, § 3, effective July 1. L. 2012: (1)(c) amended, (HB 12-1310), ch. 268, p. 1393, § 5, effective June 7. L. 2013: (1)(a) amended, (HB 13-1236), ch. 202, p. 839, § 3, effective May 11.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (2), see section 1 of chapter 318, Session Laws of Colorado 2002.
ANNOTATION
Law reviews. For article, "Staying Enforcement of a Judgment Pending Appeal", see 48 Colo. Law. 30 (May 2019).
Annotator's note. Since § 16-4-201 is similar to repealed § 39-2-19, CRS 53, and laws antecedent to CSA, C. 48, § 443, relevant cases construing those provisions have been included in the annotations to this section.
The court had authority at common law to admit to bail after conviction. People v. Junes, 77 Colo. 38, 233 P. 1109 (1925).
The trial court retains jurisdiction to grant or deny an appeal bond even after the defendant has filed a notice of appeal. The trial court retains jurisdiction to act with respect to matters which are not relative to or do not affect the order or judgment on appeal. Since the granting or denial of an appeal bond has no impact or bearing upon the underlying conviction or related issues pending on appeal, the trial court retains jurisdiction. People v. Stewart, 26 P.3d 17 (Colo. App. 2000), rev'd on other grounds, 55 P.3d 107 ( Colo. 2002 ).
Purpose of section. The purpose of § 16-4-106 and this section is to authorize the court to exercise discretion rather than follow a fixed policy and to permit a recognizance to remain in effect, without the necessity of a new bond, after conviction and until disposition of the case in the trial court. Trujillo v. District Court, 131 Colo. 428 , 282 P.2d 703 (1955).
Section 16-4-106 and this section must be read together and reconciled if possible. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
Power to admit to bail after conviction is discretionary with the trial court; it is not a matter of right. People v. Junes, 77 Colo. 38, 233 P. 1109 (1925).
Probationer awaiting adjudication of a petition to revoke probation or a deferred judgment does not have a right to bond despite the fact that the revocation motions are based on a new charge for which the probationer is presumed innocent. People v. Johnson, 2017 COA 97 , __ P.3d __.
Entry of guilty verdict or acceptance of guilty plea completes conviction. For purposes of the bail bond statute, a "conviction" occurs and is complete either upon the entry of a guilty verdict following trial or upon the acceptance of a plea of guilty, either to the original charge or to a lesser included charge. People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975).
"Conviction" occurs upon entry of a plea of guilty. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
The word "conviction" in this section cannot include sentencing; it must refer to an occurrence before sentence. People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975).
Misdescription of crime in recognizance, after conviction, is not fatal. People v. Junes, 77 Colo. 38, 233 P. 1109 (1925).
Where defendant entered plea of guilty, surety's obligation under recognizance bond was terminated. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
And trial court could not continue bond without first obtaining surety's consent. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
Although the trial judge may continue the original bond to final disposition, he must obtain the consent of the surety to continue it beyond conviction. Rodriguez v. People, 191 Colo. 540 , 554 P.2d 291 (1976).
This section does not require separate or renewed consent of sureties at various stages of the proceeding. O'Neil v. People, 198 Colo. 9 , 595 P.2d 235 (1979).
Statutes relating to bail constitute part of the surety's contract. People v. Hampton, 662 P.2d 498 (Colo. App. 1983).
Applicability of pretrial bond to post-trial period. While the terms of the original pretrial bond may also cover the post-trial period, without such a provision, this section is controlling as to post-trial continuances of a bond. Where the language and terms of the original bond do not provide the court with the requisite written consent to continue liability beyond conviction, oral statements to the court, after the defendant fails to appear, do not bind the surety. People v. Hampton, 662 P.2d 498 (Colo. App. 1983).
Where contract deemed to impose postconviction liability. By executing bail bond contracts containing language binding them until the final sentence or order of the court, sureties are deemed to have given the statutorily required written consent to continue their liability on the bonds after conviction and until sentencing. O'Neil v. People, 198 Colo. 9 , 595 P.2d 235 (1979).
Defendant's tender of signed petition and stipulation constituted a "plea of guilty" within the meaning of the bond statute, and a formal statement by the court accepting the guilty plea was not necessary. People v. Hernandez, 902 P.2d 846 (Colo. App. 1995).
A conviction is not necessary to exonerate the surety; a plea of guilty suffices. People v. Hernandez, 902 P.2d 846 (Colo. App. 1995).
Entry of a guilty plea constitutes an "answer" to the charges and satisfies the terms of a bond that bound the surety until the defendant "answered" the charges against him. People v. Hernandez, 902 P.2d 846 (Colo. App. 1995).
Applied in People v. Tyler, 784 P.2d 815 (Colo. App. 1989).
16-4-201.5. Right to bail after a conviction - exceptions.
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The court may grant bail after a person is convicted, pending sentencing or appeal, only as provided by this part 2; except that no bail is allowed for persons convicted of:
- Murder;
- Any felony sexual assault involving the use of a deadly weapon;
- Any felony sexual assault committed against a child who is under fifteen years of age;
- A crime of violence, as defined in section 18-1.3-406, C.R.S.;
- Any felony during the commission of which the person used a firearm;
- A crime of possession of a weapon by a previous offender, as described in section 18-12-108 (2)(b), (2)(c), (4)(b), (4)(c), or (5);
- Child abuse, as described in section 18-6-401 (7)(a)(I), C.R.S.;
- A class 5 felony act of domestic violence, as described in section 18-6-801 (7);
- A second or subsequent offense for stalking that occurs within seven years after the date of a prior offense for which the person was convicted, as described in section 18-3-602 (3)(b); or
- Stalking when there was a temporary or permanent protection order, injunction, or condition of bond, probation, or parole or any other court order in effect that protected the victim from the person, including but not limited to stalking, as described in section 18-3-602 (5).
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The court shall not set bail that is otherwise allowed pursuant to subsection (1) of this section unless the court finds that:
- The person is unlikely to flee and does not pose a danger to the safety of any person or the community; and
- The appeal is not frivolous or is not pursued for the purpose of delay.
- The provisions of this section shall apply to offenses committed on or after January 1, 1995.
Source: L. 99: Entire section added, p. 57, § 8, effective March 15. L. 2000: (1) amended, p. 635, § 6, effective July 1. L. 2002: (1)(d) amended, p. 1490, § 132, effective October 1. L. 2007: (1)(e) and (1)(f) amended and (1)(g) added, p. 1686, § 2, effective July 1. L. 2017: (1)(f) amended and (1)(h), (1)(i), and (1)(j) added, (HB 17-1150), ch. 182, p. 665, § 1, effective August 9.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(d), see section 1 of chapter 318, Session Laws of Colorado 2002.
16-4-202. Appeal bond hearing - factors to be considered.
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The court shall consider the following factors in deciding whether or not an appeal bond should be granted and determining the type of bond and conditions of release required:
- The nature and circumstances of the offense before the court and the sentence imposed for that offense;
- The defendant's length of residence in the community;
- The defendant's employment, family ties, character, reputation, and mental condition;
- The defendant's past criminal record and record of appearance at court proceedings;
- Any showing of intimidation or harassment of witnesses or potential witnesses, or likelihood that the defendant will harm or threaten any person having a part in the trial resulting in conviction;
- Any other criminal charges pending against the defendant and the potential sentences should the defendant be convicted of those charges;
- The circumstances of, and sentences imposed in, any criminal case in which the defendant has been convicted but execution stayed pending appeal;
- The likelihood that the defendant will commit additional criminal offenses during the pendency of such defendant's appeal; and
- The defendant's likelihood of success on appeal.
Source: L. 72: R&RE, p. 209, § 1. C.R.S. 1963: § 39-4-202. L. 93: Entire section amended, p. 1726, § 3, effective July 1. L. 2013: IP(1) amended, (HB 13-1236), ch. 202, p. 840, § 4, effective May 11.
ANNOTATION
Trial court must hold hearing and make findings on defendant's motion for an appeal bond. People v. Yi, 741 P.2d 1264 (Colo. App. 1987).
But defendant not entitled to a hearing on a motion for an appeal bond pending appeal of a postconviction order, since defendant had already had the opportunity for and the benefit of a meaningful appellate review of his conviction. People v. Roca, 17 P.3d 835 (Colo. App. 2000).
16-4-203. Appeal bond hearing - order.
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After considering the factors set forth in section 16-4-202, the court may enter one of the following orders:
- Deny the defendant appeal bond; or
- Repealed.
- Grant the defendant appeal bond.
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If the court determines that an appeal bond should be granted, the court shall set the amount of bail and order either:
- An appeal bond in the amount of the bail to be executed and secured by depositing cash or property as provided by statute or by an approved surety or sureties; or
- An appeal bond in the amount of the bail to be executed on the personal recognizance of the defendant.
(2.5) If the court determines that an appeal bond should be granted, the court shall provide as an explicit condition of the appeal bond that the defendant not harass, molest, intimidate, retaliate against, or tamper with the victim of or any prosecution witnesses to the crime, unless the court makes written findings that such condition is not necessary.
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In addition to the above, the court may:
- Place the defendant in the custody of the probation department or a designated person who agrees to supervise him;
- Place restrictions on the travel, activities, associations, or place of abode of the defendant during the pendency of the appeal;
- Impose any other condition deemed necessary to assure defendant's appearance as required.
- Upon written motion of the state or the defendant, the sentencing court may increase or reduce the amount of appeal bond, alter the security for or conditions of the appeal bond, or revoke the appeal bond. Notice of hearing on the motion shall be given in the manner provided in section 16-4-107.
- If the defendant has been charged with committing another felony, level 1 drug misdemeanor, or class 1 misdemeanor while he or she is at liberty on an appeal bond, and probable cause has been found with respect to such other felony, level 1 drug misdemeanor, or class 1 misdemeanor or the defendant has waived his or her right to a probable cause determination as to the felony, level 1 drug misdemeanor, or class 1 misdemeanor, the court shall revoke his or her appeal bond on motion of the attorney general or district attorney.
Source: L. 72: R&RE, p. 210, § 1. C.R.S. 1963: § 39-4-203. L. 82: (1)(a) amended and (1)(b) repealed, p. 307, §§ 1, 2, effective March 17. L. 94: (2.5) added, p. 2022, § 1, effective June 3. L. 2013: (5) amended, (SB 13-250), ch. 333, p. 1928, § 37, effective October 1.
ANNOTATION
Law reviews. For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982).
Imposition of a "cash only" appeal bond is within a trial court's authority and discretion. People v. Hoover, 119 P.3d 564 (Colo. App. 2005).
16-4-204. Appellate review of terms and conditions of bail or appeal bond.
- After entry of an order pursuant to section 16-4-109 or 16-4-201, the defendant or the state may seek review of said order by filing a petition for review in the appellate court. If an order has been entered pursuant to section 16-4-104, 16-4-109, or 16-4-201, the petition shall be the exclusive method of appellate review.
- The petition shall be in writing, shall be served as provided by court rule for service of motions, and shall have appended thereto a transcript of the hearing held pursuant to section 16-4-109 or 16-4-203. The opposing party may file a response thereto within seven days or as provided by court rule.
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After review, the appellate court may:
- Remand the petition for further hearing if it determines that the record does not disclose the findings upon which the court entered the order; or
- Order the trial court to modify the terms and conditions of bail or appeal bond; or
- Order the trial court to modify the terms and conditions of bail or appeal bond and remand for further hearing on additional conditions of bail or appeal bond; or
- Dismiss the petition.
- Nothing contained in this section shall be construed to deny any party the rights secured by section 21 of article II of the Colorado constitution.
Source: L. 72: R&RE, p. 211, § 1. C.R.S. 1963: § 39-4-204. L. 2012: (2) amended, (SB 12-175), ch. 208, p. 848, § 69, effective July 1. L. 2016: (1) and (2) amended, (SB 16-189), ch. 210, p. 759, § 26, effective June 6.
ANNOTATION
Annotator's note. Since § 16-4-204 is similar to repealed § 39-2-17, CRS 53, relevant cases construing that provision have been included in the annotations to this section.
Pursuant to this section, an appellate court may hear an appeal of an order entered pursuant to § 16-4-109. In 2013, the provisions of § 16-4-107 were moved with minor changes to § 16-4-109, but a conforming amendment was not made to this section to include the new § 16-4-109. This created a question of ambiguity as to whether this section still applies to the subject matter that was originally in § 16-4-107 but is now contained in § 16-4-109. The ambiguity does not limit an appellate court from appeals related to the subject matter of the original § 16-4-107 with respect to the reduction or increase in the amount of bail. People v. Jones, 2015 CO 20, 346 P.3d 44.
This section authorizes an appeal of a court order modifying a bail bond using the criteria in § 16-4-105 since the authority for the order is found in § 16-4-109. This section authorizes an appeal of a court order related to determination, modification, and continuation of bail bonds. Although § 16-4-105 provided the evidentiary basis for changing a defendant's bond, a court's authority to modify the bond is found in § 16-4-109, which serves as a basis for hearing the appeal. People v. Jones, 2015 CO 20, 346 P.3d 44.
Review of excessive bail. Where the bond fixed by the trial court in a criminal case is so grossly excessive as to amount to a denial of the right of accused to be admitted to bail in a reasonable amount, the supreme court will direct that the accused be admitted to bail in reasonable amount. Altobella v. District Court, 153 Colo. 143 , 385 P.2d 663 (1963).
If the bail is deemed excessive, relief may be sought by suitable proceedings, but not through appeal after conviction of the crime charged. Corbett v. People, 153 Colo. 457 , 387 P.2d 409 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1346, 12 L. Ed. 2d 302 (1964).
Review of refusal to admit prisoner to bail. Where a petitioner is adjudged guilty of contempt of court for refusal to answer questions before the grand jury and is sentenced to four months in jail, refusal of the trial court to stay execution or admit the petitioner to bail pending review by the supreme court is an abuse of discretion. Smaldone v. People, 153 Colo. 208 , 385 P.2d 127 (1963).
A claim of error that court refused to admit defendant to bail may be raised by appropriate proceedings, but not by appeal after conviction of the crime charged. Corbett v. People, 153 Colo. 457 , 387 P.2d 409 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1346, 12 L. Ed. 2d 302 (1964).
Applied in People v. Velasquez, 641 P.2d 943 (Colo. 1982), appeal dismissed, 459 U.S. 805, 103 S. Ct. 28, 74 L. Ed. 2d 43 (1982), reh'g denied, 459 U.S. 1138, 103 S. Ct. 774, 74 L. Ed. 2d 986 (1983).
16-4-205. When appellate court may fix appeal bond.
If a trial court fails or refuses to grant or deny an appeal bond within forty-eight hours following application for such bond, the defendant may move the appellate court for such an order, and that court shall promptly hear and rule upon the motion.
Source: L. 72: R&RE, p. 211, § 1. C.R.S. 1963: § 39-4-205.
16-4-206. Notification of court reminder program.
A person released on bond pursuant to this part 2 who is ordered to appear in a court that participates in the court reminder program established in section 13-3-101 (14)(a)(I), and any person otherwise ordered to appear in a court that participates in the program, must be notified that the person can elect to provide a mobile telephone number that will be used by the court solely to provide text message reminders for future court dates and unplanned court closures, and must be provided the opportunity to provide a mobile telephone number or update a mobile telephone number for that purpose.
Source: L. 2019: Entire section added, (SB 19-036), ch. 293, p. 2687, § 4, effective August 2.
PART 3 UNIFORM RENDITION OF ACCUSED PERSONS ACT
16-4-301. Short title.
This part 3 shall be known and may be cited as the "Uniform Rendition of Accused Persons Act", and shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.
Source: L. 72: R&RE, p. 213, § 1. C.R.S. 1963: § 39-4-304.
16-4-302. Arrest of person illegally in state.
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If a person who has been charged with crime in another state and released from custody prior to final judgment, including the final disposition of any appeal, is alleged to have violated the terms and conditions of his release, and is present in this state, a designated agent of the court, judge, or magistrate who authorized the release may request the issuance of a warrant for the arrest of the person and an order authorizing his return to the demanding court, judge, or magistrate. Before the warrant is issued, the designated agent shall file with the judge of a court of record of this state the following documents:
- An affidavit stating the name and whereabouts of the person whose return is sought, the crime with which the person was charged, the time and place of the crime charged, and the status of the proceedings against him; and
- A certified copy of the order or other document specifying the terms and conditions under which the person was released from custody; and
- A certified copy of an order of the demanding judge, court, or magistrate stating the manner in which the terms and conditions of the release have been violated and designating the affiant its agent for seeking the return of the person.
- Upon initially determining that the affiant is a designated agent of the demanding judge, court, or magistrate, and that there is probable cause for believing that the person whose return is sought has violated the terms and conditions of his release, the judge of this state shall issue a warrant to a peace officer of this state for the person's arrest.
- The judge of this state shall notify the district attorney of his action and shall direct him to investigate the case and to ascertain the validity of the affidavits and documents required by subsection (1) of this section and the identity and authority of the affiant.
Source: L. 72: R&RE, p. 211, § 1. C.R.S. 1963: § 39-4-301.
16-4-303. Hearing and right to counsel.
- The person whose return is sought shall be brought before the judge of this state immediately upon arrest pursuant to the warrant; whereupon the judge shall set a time and place for hearing and shall advise the person of his right to have the assistance of counsel, to confront the witnesses against him, and to produce evidence in his own behalf at the hearing.
- The person whose return is sought may at this time in writing waive the hearing and agree to be returned to the demanding court, judge, or magistrate. If a waiver is executed, the judge shall issue an order pursuant to section 16-4-304.
- The judge may impose conditions of release authorized by the laws of this state which will reasonably assure the appearance at the hearing of the person whose return is sought.
Source: L. 72: R&RE, p. 212, § 1. C.R.S. 1963: § 39-4-302.
16-4-304. Order of return to demanding court.
The district attorney shall appear at the hearing and report to the judge the results of his investigation. If the judge finds that the affiant is a designated agent of the demanding court, judge, or magistrate, and that the person whose return is sought was released from custody by the demanding court, judge, or magistrate, and that the person has violated the terms or conditions of his release, the judge shall issue an order authorizing the return of the person to the custody of the demanding court, judge, or magistrate forthwith.
Source: L. 72: R&RE, p. 212, § 1. C.R.S. 1963: § 39-4-303.
ARTICLE 5 COMMENCEMENT OF CRIMINAL ACTION
Editor's note: This article was repealed and reenacted in 1972. For historical information concerning the repeal and reenactment, see the editor's note before the article 1 heading.
Section
PART 1 GENERAL PROVISIONS
16-5-101. Commencement of prosecution.
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Unless otherwise provided by law, a criminal action for violation of any statute may be commenced in one of the following ways:
- By the return of an indictment by a grand jury;
- By the filing of an information in the district court;
- By the filing of a felony complaint in the county court;
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Prosecution of a misdemeanor or petty offense may be commenced in the county court by:
- The issuance of a summons and complaint;
- The issuance of a summons following the filing of a complaint;
- The filing of a complaint following an arrest; or
- The filing of a summons and complaint following arrest; or, in the event that the offense is a class 2 petty offense, by the issuance of a notice of penalty assessment pursuant to section 16-2-201.
- The procedures governing felony complaints filed in the county court and warrants or summons issued in connection therewith shall be in accordance with and as required by the applicable provisions of the rules of criminal procedure promulgated by the supreme court of Colorado.
- Where the offense charged is a misdemeanor or petty offense, the action may be commenced in the county court as provided in subsection (1)(d) of this section, and the issues shall then be tried in the county court. As to misdemeanors or petty offenses thus filed and tried in the county court, the simplified procedures enumerated in part 1 of article 2 of this title shall be applicable.
Source: L. 72: R&RE, p. 213, § 1. C.R.S. 1963: § 39-5-101.
ANNOTATION
Prosecution may seek a grand jury indictment after dismissal by a county court on a preliminary hearing for lack of probable cause as an alternative to appealing to or filing a direct information in the district court. People v. Noline, 917 P.2d 1256 (Colo. 1996).
One charged with crime must be brought into court on a complaint, information, or indictment made, or found, according to the requirements of the law. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957) (decided under repealed § 39-4-1, CRS 53).
It was not essential for all members of a grand jury who issued a true bill to specifically observe the formal charging paper and approve its formal language. People v. Campbell, 194 Colo. 451 , 573 P.2d 557 (1978).
Grand jury may properly return an indictment even after the prosecution has filed a criminal complaint. Defendant is not entitled to a preliminary hearing after a grand jury returned an indictment. People v. Huynh, 98 P.3d 907 (Colo. App. 2004).
When a felony case starts in county court pursuant to subsection (1)(c) and is resolved by a plea to only misdemeanor charges, it is a county court matter and an appeal must be made to the district court. People v. Vargas-Reyes, 2018 COA 181 , 434 P.3d 1198.
Applied in People v. Lopez, 41 Colo. App. 75, 587 P.2d 792 (1978); Thomas v. County Court, 198 Colo. 87 , 596 P.2d 768 (1979); People v. Abbott, 638 P.2d 781 ( Colo. 1981 ).
16-5-102. Summons to corporate defendant.
- When a corporation is charged with the commission of an offense, the court shall issue a summons setting forth the nature of the offense and commanding the corporation to appear before the court at a certain time and place.
- The summons for the appearance of a corporation may be served by a peace officer in the manner provided for service of summons upon a corporation in a civil action.
Source: L. 72: R&RE, p. 213, § 1. C.R.S. 1963: § 39-5-102.
16-5-103. Identity theft victims - definitions.
- A person whose identifying information has been mistakenly associated with an arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction is a victim of identity theft for the purposes of this section. A victim of identify theft may proceed either through the judicial process in subsection (2) of this section or the Colorado bureau of investigation process in subsection (3) of this section.
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- If a criminal charge is not pending, a victim of identity theft may, with notice to the prosecutor, petition the court with jurisdiction over the arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction to judicially determine the person's factual innocence. Alternatively, the court, on its own motion, may make such a determination in the case. If a criminal charge is pending, the prosecuting attorney may request the court to make such a determination. A judicial determination of factual innocence made pursuant to this section may be determined, with or without a hearing, upon declarations, affidavits, or police reports or upon any other relevant, material, reliable information submitted by the parties and records of the court.
- If the court determines that there is no reasonable cause to believe that a victim of identity theft committed the offense for which the victim's identity has been mistakenly associated with an arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction, the court shall find the victim factually innocent of that offense. If the victim is found factually innocent, the court shall issue an order certifying this determination.
- After the court has determined that a person is factually innocent, the court shall provide the Colorado bureau of investigation with the order of factual innocence. Upon receipt of the order of factual innocence, the Colorado bureau of investigation shall modify the victim of identity theft's law enforcement-only and public criminal history record accordingly.
- A court that issues a determination of factual innocence pursuant to this section may at any time vacate that determination if the petition, or information submitted in support of the petition, contains material misrepresentation or fraud. If the court vacates a determination of factual innocence, the court shall issue an order rescinding any orders made pursuant to this subsection (2).
- (2.5) (a) A person who has had his or her identity stolen or used that is not associated with an arrest, summons, summons and complaint, felony complaint, information, indictment, or conviction may petition the district court in the county where the person lives for an order of factual innocence. A judicial determination of factual innocence made pursuant to this section may be determined, with or without a hearing, upon declarations, affidavits, or any other relevant, material, reliable information submitted by the parties and records of the court.
- If the court finds that the person's identity was stolen or used by another, the court shall issue an order certifying this determination.
- A court that issues a determination of factual innocence pursuant to this subsection (2.5) may at any time vacate that determination if the petition, or information submitted in support of the petition, contains material misrepresentation or fraud. If the court vacates a determination of factual innocence, the court shall issue an order rescinding any orders made pursuant to this subsection (2.5).
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- A victim of identity theft may contact the Colorado bureau of investigation and submit a records challenge to one or more criminal charges the victim of identity theft is alleged to have committed. The victim of identity theft shall include a copy of his or her fingerprints with the records challenge.
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- A Colorado bureau of investigation fingerprint examiner shall compare the submitted fingerprints in the records challenge to the fingerprints obtained in each criminal case that the victim of identity theft is making a records challenge.
- The fingerprint examiner shall determine either that the fingerprints submitted in the records challenge are not the same as the individual arrested or that they are the same as the individual arrested.
- If the fingerprint examiner determines the fingerprints submitted in the fingerprint challenge are not the same as the individual arrested, the Colorado bureau of investigation shall issue a letter of misidentification and shall modify the victim of identity theft's law enforcement-only and public criminal history record accordingly. The letter of misidentification shall state the holder of the letter is a victim of identity theft in each criminal case identified by the letter.
- A person who knows or reasonably suspects that his or her identifying information has been unlawfully used by another person may initiate a law enforcement investigation by contacting the local law enforcement agency that has jurisdiction over the victim's residence or over the place where a crime was committed. Such agency shall take a police report of the matter, provide the complainant with a copy of that report, and begin an investigation of the facts. If the suspected crime was committed in a different jurisdiction, the local law enforcement agency may refer the matter to the local law enforcement agency where the suspected crime was committed for investigation of the facts.
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For the purposes of this section:
- "Biometric data" means data, such as fingerprints, voice prints, or retina and iris prints that capture, represent, or enable the reproduction of the unique physical attributes of an individual.
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"Identifying information" means information that, alone or in conjunction with other information, identifies an individual, including but not limited to such individual's:
- Name;
- Address;
- Birth date;
- Telephone, social security, taxpayer identification, driver's license, identification card, alien registration, government passport, or checking, savings, or deposit account number;
- Biometric data;
- Unique electronic identification device; and
- Telecommunication identifying device.
- "Telecommunication identifying device" means a number, code, or magnetic or electronic device that enables the holder to use telecommunications technology to access an account; obtain money, goods, or services; or transfer funds.
Source: L. 2004: Entire section added, p. 1736, § 2, effective July 1. L. 2013: Entire section amended, (HB 13-1146), ch. 43, p. 116, § 1, effective March 15.
PART 2 INDICTMENTS AND INFORMATIONS
16-5-201. Indictments - allegations - form.
Every indictment or accusation of the grand jury shall be deemed sufficient technically and correct which states the offense in the terms and language of the statute defining it, including either conjunctive or disjunctive clauses, or so plainly that the nature of the offense may be easily understood by the jury. Pleading in either the conjunctive or the disjunctive shall place a defendant on notice that the prosecution may rely on any or all of the alternatives alleged. The commencement of the indictment shall be in substance as follows:
STATE OF COLORADO ) ) ss. County of.................................................) Of the ........ term of the ........ court, in the year ........ . The grand jurors chosen, selected, and sworn, in and for the county of .........., in the name and by the authority of the people of the state of Colorado, upon their oaths, present. (Here insert the offense, the name of the person charged, and the time and place of committing the same, with reasonable certainty.) Every indictment shall be signed by the foreman of the grand jury returning it and by the prosecuting attorney, his or her assistant, or his or her deputy.
Source: L. 72: R&RE, p. 214, § 1. C.R.S. 1963: § 39-5-201. L. 2003: Entire section amended, p. 972, § 1, effective April 17.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For article, "Being Specific", see 29 Dicta 195 (1952).
Annotator's note. Since § 16-5-201 is similar to repealed § 39-3-1, C.R.S. 1963, CSA, C. 48, § 447, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
It is the province of the general assembly to provide what elements of an offense must be set forth in an indictment or information. Edwards v. People, 176 Colo. 478 , 491 P.2d 566 (1971).
Purpose of section. This section and § 16-10-202 , dealing with variance between allegations and proof, undoubtedly were adopted by the general assembly with a view of removing from consideration those technical rules of pleading long the bane of criminal procedure at common law and the occasion of many miscarriages of justice in antiquated times. Helser v. People, 100 Colo. 371 , 68 P.2d 543 (1937).
One purpose of the requirements of this section is to provide sufficient notice to defendants to permit the preparation of defenses prior to trial. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).
Purposes of criminal indictment by grand jury are twofold: First, it must give the defendant sufficient notice of the crime that has allegedly been committed so that a defense may be prepared; second, it must define the acts which constitute the crime with sufficient definiteness so that the defendant may plead the resolution of the indictment as a bar to subsequent proceedings. People v. Tucker, 631 P.2d 162 (Colo. 1981).
This section does not encourage subtleties and hypertechnical refinements in criminal cases. Sweek v. People, 85 Colo. 479, 277 P. 1 (1929).
An information or indictment charging offense in language of the statute is sufficient. Schneider v. People, 30 Colo. 493 , 71 P. 369 (1903); Knepper v. People, 63 Colo. 396 , 167 P. 779 (1917); Balfe v. People, 66 Colo. 94 , 179 P. 137 (1919); People v. Maestas, 199 Colo. 143 , 606 P.2d 849 (1980).
An indictment or information is sufficient which describes an offense either in the language of the statute or so plainly that the nature of the crime may be readily and easily understood by a jury. Albert v. People, 90 Colo. 219 , 7 P.2d 822 (1932).
A charge so worded that it is "sufficient technically and correct", sufficiently sets forth the substance of the offense. If an indictment is correct when it charges in the words of the statute, then it must contain the substance of the offense. Papas v. People, 98 Colo. 306 , 55 P.2d 1330 (1936).
It need not follow the exact language of the statute. Sarno v. People, 74 Colo. 528 , 223 P. 41 (1924); Albert v. People, 90 Colo. 219 , 7 P.2d 822 (1932).
It must be so charged that it may be readily understood by accused and jury. Tracy v. People, 65 Colo. 226 , 176 P. 280 (1918); Junes v. People, 72 Colo. 86 , 209 P. 512 (1922); McConnell v. People, 73 Colo. 99 , 213 P. 674 (1923); Sarno v. People, 74 Colo. 528 , 223 P. 41 (1924); Cliff v. People, 84 Colo. 254 , 269 P. 907 (1928); Compton v. People, 84 Colo. 106 , 268 P. 577 (1928); Albert v. People, 90 Colo. 219 , 7 P.2d 822 (1932); Updike v. People, 92 Colo. 125 , 18 P.2d 472 (1933); Schreiner v. People, 95 Colo. 392 , 36 P.2d 764 (1934).
But it need not furnish such detail as to bar further prosecution. An indictment or information need not plead an offense in such detail as to be self-sufficient as a bar to further prosecution for the same offense for the judgment constitutes the bar. Howe v. People, 178 Colo. 248 , 496 P.2d 1040 (1972).
The ultimate test of the sufficiency of an indictment is whether it is sufficiently definite to inform the defendant of the charges against him so as to enable him to prepare a defense and to plead the judgment in bar of any further prosecutions for the same offense. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975); People v. Donachy, 196 Colo. 289 , 586 P.2d 14 (1978).
An indictment must be definite enough to give defendant sufficient notice of the crime alleged to prepare a defense. People v. Gable, 647 P.2d 246 (Colo. App. 1982).
Right to be informed of nature of charges. It is a defendant's right to be informed with reasonable certainty of the nature of the charges against him by requiring that an indictment answer the questions of "who, what, where and how" in cases where the acts constituting the offense are not adequately described by the statute. People v. Donachy, 196 Colo. 289 , 586 P.2d 14 (1978).
Exceptions to general rule. If, as is not uncommon, the court by construction restricts a statute to a narrower application than its general words would indicate, an indictment on it in the statutory words will be ill; it must follow the court's narrower construction. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903).
If the statute does not sufficiently set out the facts which constitute the offense so that the defendant may have notice of what he is charged, or if the words of the statute by their generality embrace cases which fall within the terms but not within the spirit or meaning of the statute, then a more particular statement of facts is necessary, and the specific facts to bring the defendant precisely within the inhibition of the law must be alleged. Schneider v. People, 30 Colo. 493, 71 P. 369 (1903); Knepper v. People, 63 Colo. 396, 167 P. 779 (1917); Balfe v. People, 66 Colo. 94, 179 P. 137 (1919).
Where the acts constituting the offense are not described by the statute, an indictment merely reciting the statutory words is insufficient. People v. Xericos, 186 Colo. 21 , 525 P.2d 415 (1974).
Bill of particulars not part of indictment. Although the purpose of a bill of particulars is to define more specifically the offense charged, a bill of particulars is not a part of an indictment nor an amendment thereto. It cannot in any way aid an indictment fundamentally bad. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).
Defendant is not legally charged by ineffective indictment. Where indictment is ineffective because it charges petitioner with offense alleged to have occurred at time subsequent to filing of indictment, defendant is not legally charged or subject to jurisdiction of court as to that transaction until reindicted. Rowse v. District Court, 180 Colo. 44 , 502 P.2d 422 (1972).
An insufficient indictment does not legally charge a crime or subject defendant to the jurisdiction of the court. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).
And omission of essential ingredient of offense may be taken advantage of at any stage. If any essential ingredient of an offense is omitted, advantage thereof may be taken, at any stage of the proceedings, even after sentence has been pronounced. Iwerks v. People, 88 Colo. 578, 298 P. 644 (1931).
Defective indictment may be asserted on appeal. Although defendant did not raise the insufficiency of the indictment at trial or in his motion for new trial, he is not thereby precluded from asserting that defect now on appeal. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).
But technicalities not affecting substantial rights will not be considered on review. Updike v. People, 92 Colo. 125 , 18 P.2d 472 (1933); Helser v. People, 100 Colo. 371 , 68 P.2d 543 (1937).
Charging an impossible date as time of occurrence of alleged offense is matter of substance, not form, and attempt to indict a person for an offense alleged to have occurred subsequent to filing of indictment is a nullity. Rowse v. District Court, 180 Colo. 44 , 502 P.2d 422 (1972).
Jeopardy does not attach by indictment defective in substance. An indictment which is defective in substance merely prevents prosecution on the basis of that particular pleading. No jeopardy attaches, and the defendant may be charged by any appropriate and sufficient pleading. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).
Date of offense is material allegation. Allegations specifying the date on which an accused allegedly committed an offense are always material when the offense charged is one which may be barred by an applicable statute of limitations. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).
Value need not be alleged if not essential. Where the value is not essential to the punishment, as in indictments for robbery, it need not be distinctly alleged or proved. Rowan v. People, 93 Colo. 473 , 26 P.2d 1066 (1933).
Applied in Stoltz v. People, 59 Colo. 342 , 148 P. 865 (1915); Bridge v. People, 63 Colo. 319 , 165 P. 778 (1917); People v. Horkans, 109 Colo. 177 , 123 P.2d 824 (1942).
II. ILLUSTRATIVE CASES.
Assault with intent to rob. An indictment for assault with intent to rob which alleges, as to the assault, that the defendant "did make an assault", without stating all of the particulars comprehended by the statutory definition of that term is sufficient. McNamara v. People, 24 Colo. 61, 48 P. 541 (1897).
Conspiracy. In an indictment for conspiracy, unless the crime which it is alleged defendants conspired to commit is named, the indictment must allege facts constituting every element necessary to establish that offense as fully as if the indictment was for its perpetration. Imboden v. People, 40 Colo. 142, 90 P. 608 (1907).
An indictment for conspiracy need not aver the means by which the conspiracy was to be carried out. Imboden v. People, 40 Colo. 142, 90 P. 608 (1907).
Because of the veil of secrecy surrounding most conspiracies, considerable latitude is allowed in drafting a conspiracy indictment. People v. Gable, 647 P.2d 246 (Colo. App. 1982).
Forgery. An indictment drawn upon the section relating to forgery is framed in the language of the act, and hence it was not essential to use the words "falsely make" or to set out the instrument. Cohen v. People, 7 Colo. 274, 3 P. 385 (1883).
Murder. In an indictment for murder it is not necessary to state more than the statute provides in order to sustain a conviction of murder in the first degree. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905).
An indictment which simply charged that the defendant murdered the victim was upheld as constitutional. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).
Perjury. A perjury indictment which does not set forth the alleged false statements, either verbatim or in substance, is insufficient to charge the crime. People v. Westendorf, 37 Colo. App. 111, 542 P.2d 1300 (1975).
A perjury indictment which tracks the language of § 18-8-502(1) and included a verbatim partial transcript of the defendant's grand jury testimony which was asserted to be materially false, together with the additional averment that the defendant did not believe the testimony to be true, is sufficient to advise the defendant of the charges against him. People v. Maestas, 199 Colo. 143 , 606 P.2d 849 (1980).
For the sufficiency of indictment in prosecution for embezzlement of public property, see People v. Donachy, 196 Colo. 289 , 586 P.2d 14 (1978).
16-5-202. Requisites of information - form.
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The information is sufficient if it can be understood therefrom:
- That it is presented by the person authorized by law to prosecute the offense;
- That the defendant is identified therein, either by name or by the defendant's patterned chemical structure of genetic information, or described as a person whose name is unknown to the informant;
- That the offense was committed within the jurisdiction of the court or is triable therein;
- That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.
- The information may be in the following form:
- An information may be filed using the language of the statute defining the offense, including either conjunctive or disjunctive clauses. Pleading in either the conjunctive or the disjunctive shall place a defendant on notice that the prosecution may rely on any or all of the alternatives alleged.
- A court shall not refuse to accept a complaint or information that contains the requirements of this section.
STATE OF COLORADO ) ) ss. County of.................................................) In the ........ Court ........ The People of the State of Colorado, against ........ A ........ B ........ C ........ D ........, district attorney within and for the .......... judicial district of the state of Colorado, in the county of .......... in the state aforesaid, in the name and by the authority of the people of the state of Colorado, informs the court that A ........ B ........ on the ........ day of ......... A.D. 20 ...., at the said county of .........., did (here state the offense) against the peace and dignity of the people of the state of Colorado. C ............................................. D ............................................ District Attorney. or C ....................... D ......................, District Attorney, by H ...................... M ......................, Deputy.
Source: L. 72: R&RE, p. 214, § 1. C.R.S. 1963: § 39-5-202. L. 2000: (1) amended, p. 454, § 13, effective April 24. L. 2003: (3) and (4) added, p. 972, § 2, effective April 17.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "By Leave of Court First Had", see 8 Dicta 14 (June 1931).
Annotator's note. Since § 16-5-202 is similar to repealed § 39-4-4, C.R.S. 1963, § 39-4-4, CRS 53, CSA, C. 48, § 457, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Purpose of section. The requirement of the signature on the information is for the protection of the defendant as a guarantee that the prosecution is being conducted in good faith. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).
General effect of section. This section means what it says and applies it to all informations except where in so doing it fails to give the defendant the nature and cause of the accusation as required by the constitution. Highley v. People, 65 Colo. 497, 177 P. 975 (1918).
This section is not in conflict with the bill of rights provision that in criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation. Jordan v. People, 19 Colo. 417, 36 P. 218 (1894).
Attorney general has same powers as district attorney. The attorney general may subscribe, present, and prosecute an information against a public offender with the same powers as the district attorney of the proper district. People v. Gibson, 53 Colo. 231, 125 P. 531 (1912).
Signature by deputy is proper. Signature of the prosecuting officer, typewritten, but followed by the name of his deputy, written with his own hand, is a compliance with this section. Almond v. People, 55 Colo. 425, 135 P. 783 (1913).
Additions to special prosecutor's name in information are treated as surplusage. Where the district attorney is disqualified from prosecuting a case and the court appoints a special prosecutor, the prosecutor so appointed is authorized to sign an information in the case in his own name, and the fact that he placed before his name the name of the district attorney and added to his own signature the words "special deputy" neither added to, nor detracted from, the proper authentication in his own name. The additions are treated as surplusage. Williams v. People, 26 Colo. 272, 57 P. 701 (1899).
Failure to sign information is not jurisdictional, but should be pointed out so that the trial court might direct the parties to comply with the statute. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).
Phrase "against the peace and dignity" of people. An information concluding "against the peace and dignity of the same people of the state of Colorado", is in substantial conformity with the requirement of the constitution that all prosecutions shall be carried on in the name and by the authority of the people of the state of Colorado, and conclude against the peace and dignity of the same. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).
The omission from a criminal information of the concluding phrase "and against the peace and dignity of the same" goes to matter of form, and in no degree impairs the jurisdiction of the court. Chemgas v. Tynan, 51 Colo. 35 , 116 P. 1045 (1911); People v. Hunter, 666 P.2d 570 ( Colo. 1983 ).
Use of words "feloniously" and "unlawfully". Appellant complains that the information does not charge that the accused knowingly and wilfully committed the offense. Since the information charges the act as "unlawfully and feloniously" done, the objection does not affect the real merits. McConnell v. People, 73 Colo. 99, 213 P. 674 (1923).
The use of both the words "unlawfully" and "feloniously" in the statute does not require that the former must appear in indictment or information if the latter does. Bridge v. People, 63 Colo. 319, 165 P. 778 (1917).
Separate infractions of same law should be distinguished. In every information or indictment charging a criminal offense, good pleading required that sufficient facts be set forth to identify the crime from another infraction of the same law by the same defendant. This would seem essential in order to safeguard the accused against a second prosecution for the same offense, as well as to acquaint him with what he must meet on trial. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).
No substitution for section identified as subject of prosecution. Where a count of an information in a criminal case identifies with particularity the exact section of the statute upon which a prosecution is based, no other statute can be substituted for the one actually selected as forming the subject matter of the prosecution. Skidmore v. People, 154 Colo. 363 , 390 P.2d 944 (1964).
Amendment of minor irregularities only permitted. Generally, a criminal complaint or affidavit may be amended so as to correct minor irregularities or defects but major defects such as a material misnomer of accused or an omission of essential allegations cannot be cured by amendment on the examination. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).
Any conviction based on an information requiring major amendment is void, for the court is without jurisdiction. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).
When information fails to charge crime, court acquires no jurisdiction. People v. Moore, 200 Colo. 481 , 615 P.2d 726 (1980).
Objections to form of information must be made before trial or they are waived. People v. Hunter, 666 P.2d 570 ( Colo. 1983 ); People v. Joseph, 920 P.2d 850 (Colo. App. 1995); People v. Russell, 36 P.3d 92 (Colo. App. 2001).
Authority of district attorney is a technical matter subject to waiver. Just as a defendant may waive objections to venue, he or she may also waive any objection to the authority of the district attorney to bring a criminal charge. People v. Joseph, 920 P.2d 850 (Colo. App. 1995).
Even if defendant did not waive objection to the form of the information, defendant must demonstrate how any errors prejudiced him in order for a defect in the form to dictate reversal of a conviction. People v. Russell, 36 P.3d 92 (Colo. App. 2001).
Applied in Albert v. People, 90 Colo. 219 , 7 P.2d 822 (1932); Carter v. People, 161 Colo. 10 , 419 P.2d 654 (1966); People v. Bergstrom, 190 Colo. 10 5 , 544 P.2d 396 (1975); People v. Shortt, 192 Colo. 183 , 557 P.2d 388 (1976).
II. SUFFICIENCY OF INFORMATION.
This section governs the sufficiency of informations in criminal cases. Critchfield v. People, 91 Colo. 127 , 13 P.2d 270 (1932).
The requisites of information form are set forth by this section. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).
The sufficiency of an information is not to be determined from the evidence. Compton v. People, 84 Colo. 106, 268 P. 577 (1928).
An information must show the nature and cause of the accusation, that is, it must set out the crime charged. Jordan v. People, 19 Colo. 417, 36 P. 218 (1894); Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).
Indictment must clearly state essential facts and answer questions of who, what, where, and how. People v. Tucker, 631 P.2d 162 (Colo. 1981).
Time when offense committed. The general rule is that, where time is not a material element of the offense, the precise time at which the crime is charged to have been committed is not material. Kogan v. People, 756 P.2d 945 (Colo. 1988).
If, however, information about the time is necessary to enable the defendant to prepare his defense or to guard against a subsequent prosecution for the same crime, such information must be provided. Kogan v. People, 756 P.2d 945 (Colo. 1988).
Standard of review for bill of particulars is whether the bill of particulars as produced sufficiently informs the defendant of the particular charges at issue so that he is given a fair opportunity to properly prepare his defense. Kogan v. People, 756 P.2d 945 (Colo. 1988).
Bill of particulars held insufficient. Bill of particulars which alleged that certain acts had been committed sometime during a nine-month period and the absence of any accompanying detail describing the defendant's alleged acts resulted in clear prejudice to the defendant. Kogan v. People, 756 P.2d 945 (Colo. 1988).
It must advise defendant of charge. An information is sufficient if it advises the defendant of the charge he is facing so that he can adequately defend himself and be protected from another prosecution for the same offense. Digiallonardo v. People, 175 Colo. 560 , 488 P.2d 1109 (1971); Loggins v. People, 178 Colo. 439 , 498 P.2d 1146 (1972); People v. Morones, 39 Colo. App. 451, 569 P.2d 336 (1977); People v. Albo, 195 Colo. 102 , 575 P.2d 427 (1978); People v. Moore, 200 Colo. 481 , 615 P.2d 726 (1980); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Rubanowitz, 688 P.2d 231 ( Colo. 1984 ); People v. Chavez, 730 P.2d 321 ( Colo. 1986 ); People v. Baker, 45 P.3d 753 (Colo. App. 2001).
The ultimate test is that an information is sufficient if it advises a defendant of the charge he is facing. Edwards v. People, 176 Colo. 478 , 491 P.2d 566 (1971).
An information is sufficient if it informs the defendant of the charges against him so as to enable him to prepare a defense and plead the judgment in bar of any further prosecutions for the same offense. People v. Flanders, 183 Colo. 268 , 516 P.2d 418 (1973); People v. Gnout, 183 Colo. 366 , 517 P.2d 394 (1973); People v. Baker, 45 P.3d 753 (Colo. App. 2001).
And must set forth essential elements of crime. An information is sufficient to apprise a defendant of the charge he faces if it sets forth the essential elements charging the crime. Howe v. People, 178 Colo. 248 , 496 P.2d 1040 (1972).
But it need not set out the mode or manner of its perpetration, or the instrument or agency employed to accomplish the result. Jordan v. People, 19 Colo. 417, 36 P. 218 (1894); Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).
Information need not specify lesser included offenses which may have been committed in commission of the described act. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981).
An information is sufficient if it states the offense in language that can be easily understood. Whitfield v. People, 79 Colo. 108, 244 P. 470 (1926).
Or in language of statute defining offense. The allegations of an information which follow the language of the statute defining the offense are sufficient to satisfy constitutional requirements, and the offense charged is set forth with such degree of certainty that the court could lawfully pronounce judgment upon conviction. Lewis v. People, 109 Colo. 89 , 123 P.2d 398 (1942).
An information is sufficient if the charge is in the language of the applicable statute. People v. Morones, 39 Colo. App. 451, 569 P.2d 336 (1977).
An information is sufficient if the charge is in the language of the statute, however, an information need not follow the exact wording of the statute. Loggins v. People, 178 Colo. 439 , 498 P.2d 1146 (1972); People v. Russell, 36 P.3d 92 (Colo. App. 2001).
Or with certainty that will support judgment. Statement of offense in the information is sufficient when set forth with such degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case. Compton v. People, 84 Colo. 106, 268 P. 577 (1928).
But information need not furnish such detail as to bar further prosecution. An indictment or information need not plead an offense in such detail as to be self-sufficient as a bar to further prosecution for the same offense, for the judgment constitutes the bar. Howe v. People, 178 Colo. 248 , 496 P.2d 1040 (1972).
Information need not include every element of the offense that must be proved at trial. Information charging possession of marijuana that failed to include "knowing" possession nevertheless provided sufficient notice to defendant for trial preparation and was adequate to bar further prosecution for the same offense. People v. Flockhart, 310 P.3d 66 (Colo. App. 2009), aff'd in part and rev'd in part, 2013 CO 42, 304 P.3d 227.
The statutory reference in an information is an immaterial part of the information. People v. Marion, 182 Colo. 435 , 514 P.2d 327 (1973).
Incorrect statutory reference not fatal. The incorrect citation of a specific statutory reference in an information is not grounds for reversal, absent substantial prejudice. People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981).
Failure of charges to identify the particular statement or assertion alleged to be false is not a fatal defect. Information was sufficient to allow defendant to prepare a defense, defendant did not object to the charges or request a bill of particulars, and defendant did not demonstrate or even allege prejudice. People v. Vigil, 251 P.3d 442 (Colo. App. 2010).
Technical defects in information do not support reversal. The supreme court, in accordance with the spirit and intent of this section, has consistently refused to reverse criminal convictions for technical defects in the information or indictment which do not tend to prejudice the substantial rights of the defendants on the merits. Helser v. People, 100 Colo. 371 , 68 P.2d 543 (1937); People v. Joseph, 920 P.2d 850 (Colo. App. 1995).
If an information is sufficient to state a charge and to assure fundamental fairness to a defendant, objections both to formal defects and to defects relating to geographical deficiencies involving improper venue or to the district attorney's authority to bring or prosecute a charge must be timely made or they will be deemed waived. People v. Joseph, 920 P.2d 850 (Colo. App. 1995).
Technical defects in an information do not require reversal unless the substantial rights of the defendant are prejudiced. People v. Albo, 195 Colo. 102 , 575 P.2d 427 (1978).
Factual error regarding venue will not make an information insufficient, so long as the information gives defendant notice of factual circumstances surrounding the charges and alleges that the crimes occurred within this state. People v. Brown, 70 P.3d 489 (Colo. App. 2002).
The defendant is entitled to reversal if he was prejudiced, surprised, or hampered in his defense. People v. Albo, 195 Colo. 102 , 575 P.2d 427 (1978).
Each count of information must be independent of others. Absent a clear and specific incorporation by reference, each count of an information, to be valid, must be independent of the others and, in itself, charge the defendant with a distinct and different offense. People v. Moore, 200 Colo. 481 , 615 P.2d 726 (1980).
When identity of victim immaterial. While the name of the victim of an offense should be alleged in an information, failure to do so is an immaterial defect, where the identity of the victim is not an essential element of the offense. People v. Hunter, 666 P.2d 570 (Colo. 1983).
III. ILLUSTRATIVE CASES.
Omission of such words as "at" or "within" is not fatal. The information charged that the defendant "on to wit -- the county of Arapahoe", etc. The omission of any preposition as "at" or "within" before the name of the county was held not to impair the effect of the allegation as to venue. Balfe v. People, 66 Colo. 94, 179 P. 137 (1919).
Charge and information were sufficient, and district court had jurisdiction over defendant's case. The information was sufficient to enable it to be understood that the offense was committed within the jurisdiction of the county district court. Therefore, the information was not required to also allege that the offense was triable in the district court. People v. Perez-Hernandez, 2013 COA 160 , 348 P.3d 451.
An information charging a crime necessarily charges an attempt to commit such crime. Compton v. People, 84 Colo. 106, 268 P. 577 (1928).
Information for murder in the first degree includes all the lower degrees of criminal homicide. Harris v. People, 55 Colo. 407, 135 P. 785 (1913).
Intent to murder sufficiently charged in an information which charges defendant with making an assault with intent "to kill and murder". Hockley v. People, 30 Colo. 119, 69 P. 512 (1902).
An indictment charging that defendant unlawfully, feloniously, wilfully, purposely, and of his malice aforethought, did kill and murder the deceased, is sufficient to warrant a verdict finding that the homicide was committed with deliberation and premeditation. Redus v. People, 10 Colo. 208, 14 P. 323 (1887).
Unnecessary to allege homicide occurred incident to felony. To sustain a conviction for murder in the first degree committed in an attempt to perpetrate robbery, it is not necessary that the information should allege that the murder was committed in an attempt to perpetrate robbery. Andrews v. People, 33 Colo. 193, 79 P. 1031 (1905).
Defendant was convicted of felony murder on an information charging that on a certain date, he "did feloniously, wilfully, and of his premeditated malice aforethought, kill and murder" a named person. Due process was not violated where the information contained every essential element demanded by the Colorado statutes and by generally approved principles of criminal pleading, apprised the defendant of the nature of the charge, the date, and the place, described the victim, and further alleged that the killing was with malice aforethought, but failed to pinpoint the allegation that the homicide occurred incident to a known felony. Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962), aff'd, 316 F.2d 284 (10th Cir. 1963).
Where kidnapping was alleged more generally as an element of felony murder, a finding by the jury of a more specific alternative act of kidnapping and the resulting jury instruction did not constructively amend the felony murder charge. One count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference. Esquivel-Castillo v. People, 2016 CO 7, 364 P.3d 885.
Burglary. Information in prosecution for burglary with force and larceny held sufficient as complying with this section, although the street and number of place burglarized was not given. Hoskins v. People, 119 Colo. 88 , 200 P.2d 932 (1948).
An information is sufficient when it charges that on a certain day defendant unlawfully and willfully, feloniously, and maliciously attempted to break and without force enter a building which was not defendant's property, with the intent to commit theft contrary to the form of the statute in such case made and provided. Loggins v. People, 178 Colo. 439 , 498 P.2d 1146 (1972).
Criminal trespass count that fails to specify the underlying crime that defendant allegedly intended to commit is defective in form, but not in substance; however, since defendant did not pursue a bill of particulars and had notice of the underlying crimes defendant was not prejudiced. People v. Williams, 984 P.2d 56 (Colo. 1999).
Information charging defendant with possession of burglary tools held sufficient. People v. Gnout, 183 Colo. 366 , 517 P.2d 394 (1973).
Information charging interference with a headgate held sufficient. Lambert v. People, 78 Colo. 313, 241 P. 533 (1925).
Information charging transporting intoxicating liquors held sufficient. Highley v. People, 65 Colo. 497, 177 P. 975 (1918).
Information charging defendants with entering into a contract in restraint of trade held sufficient. Campbell v. People, 72 Colo. 213, 210 P. 841 (1922).
Information charging failure to pay income taxes held sufficient. People v. Vickers, 199 Colo. 305 , 608 P.2d 808 (1980).
Information charging defendant with crime of violence held sufficient. People v. Chavez, 730 P.2d 321 (Colo. 1986).
Information that charged defendant with criminal attempt, specified the ulterior crime, and cited to both criminal attempt and first degree murder statutes was substantively sufficient, even though better practice would have been to include the culpability element directly in the charge. People v. Russell, 36 P.3d 92 (Colo. App. 2001).
Information charging violation of bail bond conditions held sufficient. People v. Baker, 45 P.3d 753 (Colo. App. 2001).
Information held sufficient. Stoltz v. People, 59 Colo. 342, 148 P. 865 (1915); Moynahan v. People, 63 Colo. 433, 167 P. 1175 (1917); Whitfield v. People, 79 Colo. 108, 244 P. 470 (1926); Cliff v. People, 84 Colo. 254, 269 P. 907 (1928).
16-5-203. Furnishing witnesses' names.
Whether a prosecution is commenced by indictment, information, or felony complaint, the district attorney shall make available to the defendant not later than twenty-one days after the defendant's first appearance at the time of or following the filing of charges a written list of the names and addresses of the witnesses then known to the district attorney whom he or she intends to call upon at trial. The district attorney shall also furnish the defendant in writing prior to trial the names and addresses of any additional witnesses who have become known to him or her prior to trial and whom he or she intends to call upon at trial, but this shall not preclude the calling of witnesses whose names or the materiality of whose testimony are first learned by the district attorney upon the trial. However, the court may, in its discretion, enter an order that denies the disclosure to the defendant of the names and addresses of witnesses, or that requires the defense counsel not to disclose such information to the defendant, subject to rule 16 part I (d)(2) and part III (d) of the Colorado rules of criminal procedure. The names and addresses of witnesses who are the subject of the order may be withheld pending a ruling of the court, but the prosecution shall notify the defense counsel in writing that a motion to withhold witness information has been filed and that such information will be withheld pending the court's order. Where the defendant has not had or waived a preliminary hearing, there shall be filed with the information the affidavit of some credible person verifying the information upon the personal knowledge of the affiant that the offense was committed.
Source: L. 72: R&RE, p. 215, § 1. C.R.S. 1963: § 39-5-203. L. 90: Entire section amended, p. 985, § 5, effective April 24. L. 95: Entire section amended, p. 464, § 8, effective July 1. L. 96: Entire section amended, p. 737, § 10, effective July 1. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 848, § 70, effective July 1.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "By Leave of Court First Had", see 8 Dicta 14 (June 1931). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963).
Annotator's note. Since § 16-5-203 is similar to repealed §§ 39-3-6 and 39-4-2, C.R.S. 1963, §§ 39-3-6 and 39-4-2, CRS 53, CSA, C. 48, §§ 452 and 455, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
II. LIST OF WITNESSES.
Purpose of witness list. The requirement of this section that the district attorney list his witnesses is to advise the defendant of the witnesses for the people and to give the defendant an opportunity to contact, examine, and question those witnesses. Kelly v. People, 121 Colo. 243 , 215 P.2d 336 (1950).
The requirement of listing the names of witnesses is for the protection of the defendant as a guarantee that the prosecution is being conducted in good faith by the state, and to enable the defendant to find out what the testimony against him will be, and to investigate the character of the witness against him. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).
This section is mandatory, and it is the duty of the district attorney to comply with it. Wickham v. People, 41 Colo. 345, 93 P. 478 (1907).
However, the names of rebuttal witnesses for the people are not required to be listed. Ingles v. People, 90 Colo. 51 , 6 P.2d 455 (1931); Schreiner v. People, 95 Colo. 392 , 36 P.2d 764 (1934).
Neither Crim. P. 16, nor this section specifically require the prosecution to endorse or to disclose which of the endorsed witnesses it will call for rebuttal. People v. Hamrick, 624 P.2d 1333 (Colo. App. 1979), aff'd, 624 P.2d 1320 ( Colo. 1981 ); People v. Avila, 944 P.2d 673 (Colo. App. 1997).
District attorney may list additional names. It is not reversible error to allow, on the day before a case was set for trial, the district attorney to list the names of additional witnesses said to have been known to him when the information was filed, where defendant did not apply for a continuance nor make a showing of surprise or prejudice, and where no such showing is made on appeal. Wickham v. People, 41 Colo. 345, 93 P. 478 (1907).
List may be given after arraignment but before witnesses testify. It is not error to permit the examination of witnesses in chief whose names were not furnished the accused prior to his arraignment, a list of such witnesses being given before they were called to testify, and no objection being made to them upon this ground. Minich v. People, 8 Colo. 440, 9 P. 4 (1885).
Names of witnesses first learned upon the trial may be listed by order of the court. The names of witnesses, the materiality of whose testimony is first learned by the district attorney upon the trial, may be properly listed by order of court. Stone v. People, 71 Colo. 162, 204 P. 897 (1922).
Such permission being discretionary with the court. Permission for listing of the names of witnesses at the trial is discretionary with the court. Baker v. People, 72 Colo. 207, 210 P. 323 (1922).
And when granted will not constitute reversible error in the absence of a request for a continuance or showing of surprise by the defense. Baker v. People, 72 Colo. 207, 210 P. 323 (1922); Stone v. People, 71 Colo. 162, 204 P. 897 (1922).
The endorsement of a codefendant as a witness during the trial, being in no way prejudicial to the defendant, was not an abuse of discretion. Roll v. People, 132 Colo. 1 , 284 P.2d 665 (1955).
Noncompliance does not require reversal where a continuance has not been requested and surprise or prejudice has not been shown. People in Interest of B.R.M., 653 P.2d 77 (Colo. App. 1982).
Failure to list witnesses is not jurisdictional. Failure in listing the names of witnesses is not jurisdictional, but should be pointed out so that the trial court might direct the parties to comply with the statute. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).
Defect may be waived. By failure to timely object to noncompliance with section requiring witnesses' names the defect is waived. Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).
And will not constitute reversible error if nonprejudicial. Omission to furnish a defendant with a list of witnesses prior to arraignment, where no objection was made to such omission at the time of such arraignment, and there is no showing of prejudice resulting therefrom, does not constitute reversible error. Goldsberry v. People, 149 Colo. 431 , 369 P.2d 787 (1962).
But testimony of unlisted witnesses in chief was erroneously admitted. Testimony of witnesses not listed as to the entire transaction was not confined to rebuttal matters and was erroneously admitted where the district attorney did not learn of the existence of the witnesses by anything that occurred at the trial. Eckhardt v. People, 126 Colo. 18 , 247 P.2d 673 (1952).
Failure to require prosecution to furnish addresses on list of witnesses not reversible error in a town of 9,000 people in which the defense should be able to locate witnesses. People v. Smith, 685 P.2d 786 (Colo. App. 1984).
Trial court properly allowed witness endorsed as a perceiving witness to testify as an expert witness after defense raised the issue related to the expertise at trial. People v. Jowell, 199 P.3d 38 (Colo. App. 2008).
III. VERIFICATION AND PRELIMINARY HEARING.
Information must be supported by oath or affirmation. A prosecution and conviction under an information, not supported by the oath or affirmation of any person, is in violation of the bill of rights, § 7 of art. II, Colo. Const. Lustig v. People, 18 Colo. 217, 32 P. 275 (1893).
Summons and complaint charging misdemeanor needs no verification. This section, which specifically requires verification, is to this extent modified by § 16-2-106 , which does not require a verification of a summons and complaint charging a misdemeanor and issued by a peace officer. Stubert v. County Court, 163 Colo. 535 , 433 P.2d 97 (1967).
Where a preliminary hearing has been had, verification upon information and belief by the district attorney is sufficient, since the arrest of the party charged must have been made upon warrant issued upon the requisite affidavit. Brown v. People, 20 Colo. 161, 36 P. 1040 (1894).
It is not necessary in such information to set out that a preliminary hearing had been had. It devolves upon the defendant to establish the same by showing that such preliminary hearing had not been had. Brown v. People, 20 Colo. 161, 36 P. 1040 (1894).
Information need not be verified except in cases in which no preliminary examination has been had or waived. Ratcliff v. People, 22 Colo. 75, 43 P. 553 (1896).
In such cases it must be verified by some person upon his own knowledge. Brown v. People, 20 Colo. 161, 36 P. 1040 (1894).
Where a verification is necessary, as where a preliminary hearing has not been had or waived, it must be contained in the independent affidavit of some credible person having knowledge of the commission of the offense. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).
Accused cannot attack truth of affidavit made as basis of information. When an affidavit is made as the basis of an information in conformity with the requirements of this section, it is not in the power of the accused to attack, by counteraffidavit or otherwise, the truth of any of its material statements. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).
Neither can the statements in the affidavit be attacked by extraneous evidence. Whether or not an affidavit upon which an information is based complies with this section must be determined from the context of the affidavit itself, and its statements cannot be attacked by extraneous evidence. The verification cannot be attacked on the ground that the testimony disclosed that the party who verified it did not have personal knowledge of the guilt of the defendant. Bergdahl v. People, 27 Colo. 302, 61 P. 228 (1900).
It is unnecessary for the affidavit to recite that affiant is a competent witness to testify in the case. His competency will be presumed until the contrary appears. Walt v. People, 46 Colo. 136 , 104 P. 89 (1909); Wilkinson v. People, 86 Colo. 406 , 282 P. 257 (1929); Hubbard v. People, 153 Colo. 252 , 385 P.2d 419 (1963).
Want of a verification on an information is not jurisdictional. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).
Error of failure to verify may be waived. The information is required to be verified as designated, but unless the objection on that ground is properly presented in the trial court it is waived and cannot be raised in the appellate court. Bergdahl v. People, 27 Colo. 302, 61 P. 228 (1900).
The absence of a sufficient affidavit to support a count in the information is, at most, an irregularity, and any objection thereto must be made before trial. Curl v. People, 53 Colo. 578 , 127 P. 951 (1912); Harris v. Municipal Court, 123 Colo. 539 , 234 P.2d 1055 (1951).
The affidavit bears the same relation to an information in a criminal action that it does to a complaint in a civil action. It is no substantial part of either the one or the other, and there is no reason why it may not be waived without prejudice to any substantial right of the defendant, or why he should not be held to have waived any irregularity or defect therein by not objecting before pleading to the merits. Curl v. People, 53 Colo. 578, 127 P. 951 (1912).
An affidavit is for the benefit of the defendant and want of a verification affidavit is waived unless timely objection is made thereto in the trial court. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).
Verification of an information is required by statute but the right to challenge the verification is waived if a timely objection is not interposed. Scott v. People, 176 Colo. 289 , 490 P.2d 1295 (1971).
Verification may be provided before trial at the direction of the trial court once timely objection is made, and it is not error to deny a motion, made and ruled upon before trial, to strike a verification made to an information after service thereof. Bustamante v. People, 136 Colo. 362 , 317 P.2d 885 (1957).
This section does not prescribe before whom the affidavit shall be taken, but by a fundamental principle, when the statute fails to designate the particular officer before whom the oath shall be taken, it may be taken before any officer having general authority to administer oaths. Walker v. People, 22 Colo. 415, 45 P. 388 (1896).
And statute giving notaries the power to take oath in all cases is sufficiently broad to cover affidavits since an affidavit is an oath reduced to writing and attested by him who has authority to administer the same. Walker v. People, 22 Colo. 415, 45 P. 388 (1896).
Affidavit complied with this section where it was attached to the information and particularly recited that the facts stated in the foregoing information were true and the offense charged therein was committed as of the affiant's own personal knowledge. The affidavit was as full and complete as if each and every fact contained in the information had been fully embodied in the affidavit. Ausmus v. People, 47 Colo. 167, 107 P. 204 (1910).
An affidavit to an information which states that the facts stated in the information are true and that the offense was committed of affiant's personal knowledge, is sufficient to make the information good as against a motion to quash for insufficient verification. Wilkinson v. People, 86 Colo. 406, 282 P. 257 (1929).
Applied in Velasquez v. People, 154 Colo. 284 , 389 P.2d 849 (1964).
16-5-204. Witnesses before a grand jury - procedure.
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- Whenever a witness in any proceeding before any grand jury refuses, without just cause shown, to comply with an order of the court to testify or provide other information, including any book, paper, document, record, recording, or other material, the prosecuting attorney may submit an application to the court for an order directing the witness to show why the witness should not be held in contempt. After submission of such application and a hearing at which the witness may be represented by counsel, the court may, if the court finds that such refusal was without just cause, hold the witness in contempt and order the witness to be confined. Such confinement shall continue until such time as the witness is willing to give such testimony or provide such information; however, the court may release the witness from confinement if the court determines that further confinement will not cause the witness to give such testimony or provide such information. No period of such confinement shall exceed the term of the grand jury, including extensions, before which such refusal to comply with the court order occurred, and in no event shall such confinement exceed six months.
- If a witness has been confined in accordance with paragraph (a) of this subsection (1), he or she may, upon petition filed with the court, request a hearing to be held within fourteen days to review the contempt order at which hearing he or she shall have the right to be represented by counsel. The court, at the hearing, may rescind, modify, or affirm the order.
- In any proceeding conducted under this section, counsel may be appointed for a person financially unable to obtain adequate assistance.
- (1.5) (a) Upon verified application of the prosecuting attorney stating that a witness was lawfully served with a subpoena to appear and testify before the grand jury and that the witness failed to appear in accordance with such subpoena, the court shall issue a warrant commanding any peace officer to bring the witness without unnecessary delay before the court for a hearing on the matters set forth in the application and to determine whether the witness should be held in contempt pursuant to subsection (1) of this section.
- Upon issuance of the warrant, the court may fix an appropriate bond and direct, as a condition of the bond, that the witness appear on a date and at a time certain for the hearing.
- No person who has been imprisoned or fined by a court for refusal to testify or provide other information concerning any criminal incident or incidents in any proceeding before a grand jury impaneled before any district court shall again be imprisoned or fined for a subsequent refusal to testify or provide other information concerning the same criminal incident or incidents before any grand jury.
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Upon impanelment of each grand jury, the court shall give to such grand jury adequate and reasonable written notice of and shall assure that the grand jury reasonably understands the nature of:
- Its duty to inquire into offenses against the criminal laws of the state of Colorado alleged to have been committed;
- Its right to call and interrogate witnesses;
- Its right to request the production of documents or other evidence;
- The subject matter of the investigation and the criminal statutes or other statutes involved, if these are known at the time the grand jury is impaneled;
- The duty of the grand jury by an affirmative vote of nine or more members of the grand jury to determine, based on the evidence presented before it, whether or not there is probable cause for finding indictments and to determine the violations to be included in any such indictments; and
- The requirement that the grand jury may not find an indictment in cases of perjury unless at least two witnesses to the same fact present evidence establishing probable cause to find such an indictment.
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At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain the following advisement prominently displayed on the front of the subpoena:
- You have the right to retain an attorney to represent you and to advise you regarding your grand jury appearance.
- Anything you say to the grand jury may be used against you in a court of law.
- You have the right to refuse to answer questions if you feel the answers would tend to incriminate you or to implicate you in any illegal activity.
- If you cannot afford or obtain an attorney, you may request the court to appoint an attorney to consult with or represent you.
- Any witness who is not advised of his rights pursuant to paragraph (a) of this subsection (4) shall not be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he testifies or any evidence he produces, nor shall any such testimony or evidence be used as evidence in any criminal proceeding, except for perjury, against him in any court.
- Repealed.
- Any witness subpoenaed to appear and testify before a grand jury or to produce books, papers, documents, or other objects before such grand jury shall be entitled to assistance of counsel during any time that such witness is being questioned in the presence of such grand jury, and counsel may be present in the grand jury room with his client during such questioning. However, counsel for the witness shall be permitted only to counsel with the witness and shall not make objections, arguments, or address the grand jury. Such counsel may be retained by the witness or may, for any person financially unable to obtain adequate assistance, be appointed in the same manner as if that person were eligible for appointed counsel. An attorney present in the grand jury room shall take an oath of secrecy. If the court, at an in camera hearing, determines that counsel was disruptive, then the court may order counsel to remain outside the courtroom when advising his client. No attorney shall be permitted to provide counsel in the grand jury room to more than one witness in the same criminal investigation, except with the permission of the grand jury.
- Once a grand jury has returned a no true bill based upon a transaction, set of transactions, event, or events, a grand jury inquiry into the same transaction or events shall not be initiated unless the court finds, upon a proper showing by the prosecuting attorney, that the prosecuting attorney has discovered additional evidence relevant to such inquiry.
- An authorized reporter shall be present at all grand jury sessions. All grand jury proceedings and testimony from commencement to adjournment shall be reported. The reporter's notes and any transcripts which may be prepared shall be preserved, sealed, and filed with the court. No release or destruction of the notes or transcripts shall occur without prior court approval.
- Upon application by the prosecutor, or by any witness after notice to the prosecutor, the court, for good cause, may enter an order to furnish to that witness a transcript of his own grand jury testimony, or minutes, reports, or exhibits relating to them.
- Any witness summoned to testify before a grand jury, or an attorney for such witness with the witness's written approval, shall be entitled, prior to testifying, to examine and copy at the witness's expense any statement in the possession of the prosecuting attorney or the grand jury which such witness has made to any law enforcement or prosecution official or under an oath required by law that relates to the subject matter under inquiry by the grand jury. If a witness is proceeding in forma pauperis, he shall be furnished, upon request, a copy of such transcript and shall not pay a fee.
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No person subpoenaed to testify or to produce books, papers, documents, or other objects in any proceeding before any grand jury shall be required to testify or to produce such objects, or be confined as provided in this section, for his failure to so testify or produce such objects if, upon filing a motion and upon an evidentiary hearing before the court which issued such subpoena or a court having jurisdiction under this section, the court finds that:
- A primary purpose or effect of requiring such person to so testify or to produce such objects before the grand jury is or will be to secure testimony for trial for which the defendant has already been charged by information, indictment, or criminal complaint;
- Compliance with a subpoena would be unreasonable or oppressive;
- A primary purpose of the issuance of the subpoena is to harass the witness;
- The witness has already been confined, imprisoned, or fined under this section for his refusal to testify before any grand jury investigating the same transaction, set of transactions, event, or events; or
- The witness has not been advised of his rights as specified in paragraph (a) of this subsection (4).
- Any grand jury may indict a person for an offense when the evidence before such grand jury provides probable cause to believe that such person committed such offense.
- The district court before which the indicted defendant is to be tried shall dismiss any indictment of the grand jury if such district court finds, upon the filing of a motion by the indicted defendant based upon the grand jury record without argument or further evidence, that the grand jury finding of probable cause is not supported by the record.
- Any person may approach the prosecuting attorney or the grand jury and request to testify or retestify in an inquiry before a grand jury or to appear before a grand jury. The prosecuting attorney or the grand jury shall keep a record of all denials of such requests to that prosecuting attorney or grand jury, including the reasons for not allowing such person to testify or appear. If the person making such request is dissatisfied with the decision of the prosecuting attorney or the grand jury, such person may petition the court for hearing on the denial by the prosecuting attorney or the grand jury. If the court grants the hearing, then the court may permit the person to testify or appear before the grand jury, if the court finds that such testimony or appearance would serve the interests of justice.
- The foreman, or acting foreman when designated by the court, of the grand jury may swear or affirm all witnesses who come before the grand jury.
- Any other motions testing the validity of the indictment may be heard by the court based only on the record and argument of counsel, unless there is cause shown for the need for additional evidence.
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At the option of the prosecuting attorney, a grand jury subpoena may contain an advisement of rights. If the prosecuting attorney determines that an advisement is necessary, the grand jury subpoena shall contain the following advisement prominently displayed on the front of the subpoena:
NOTICE
Source: L. 72: R&RE, p. 215, § 1. C.R.S. 1963: § 39-5-204. L. 77: Entire section R&RE, p. 853, § 1, effective June 21. L. 81: (4)(c) repealed, p. 926, § 2, effective July 1. L. 82: (4)(f) amended, p. 623, § 15, effective April 2. L. 2000: (4)(h) amended, p. 428, § 1, effective April 14. L. 2002: (1.5) added, p. 759, § 6, effective July 1. L. 2012: (4)(a) amended, (HB-1310), ch. 268, p. 1393, § 6, effective June 7; (1)(b) amended, (SB 12-175), ch. 208, p. 849, § 71, effective July 1.
ANNOTATION
Law reviews. For article, "State Grand Juries in Colorado: Understanding the Process and Attacking Indictments", see 34 Colo. Law. 63 (April 2005).
Annotator's note. Since § 16-5-204 is similar to repealed CSA, C. 48, § 448, relevant cases construing that provision have been included in the annotations to this section.
Compliance need not appear on face of indictment. Compliance with the provisions of this section need not appear on the face of the indictment because the presumption of regularity pertains. People v. Swanson, 109 Colo. 371 , 125 P.2d 637 (1942).
This section does not prohibit grand jury from questioning persons suspected of crimes. People v. McPhail, 118 Colo. 478 , 197 P.2d 315 (1948).
Even if issuance of subpoena was abuse of grand jury's powers, defendant must show that the abuse prejudiced him before he is entitled to have the fruits of the subpoena suppressed. People v. Vesely, 41 Colo. App. 325, 587 P.2d 802 (1978).
Where subpoena produces only evidence otherwise discoverable, defendant is in no way prejudiced by its issuance, even though erroneous, and any impropriety in the grand jury process is harmless. People v. Vesely, 41 Colo. App. 325, 587 P.2d 802 (1978).
Order suppressing intercepted communications is "just cause". An order suppressing intercepted communications pursuant to § 16-15-102 (10) would constitute a showing of "just cause" within the meaning of subsection (1)(a). In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).
Attorney may not represent more than one witness. To preserve the secrecy and effectiveness of the grand jury process, no attorney who provides counsel in the grand jury room may represent more than one witness in a single investigation without grand jury permission, and this is a constitutionally permissible limitation of the right to counsel. People ex rel. Lasavio v. J.L., 195 Colo. 494 , 580 P.2d 23 (1978).
Legislative intent as to right to counsel. Close scrutiny of this section reveals that the general assembly intended to abolish the established practice of permitting grand jury witnesses to consult with an attorney outside the grand jury room only, and substitute a system which expands the protections afforded grand jury witnesses while insuring continued efficacy of the grand jury process. People ex rel. Lasavio v. J.L., 195 Colo. 494 , 580 P.2d 23 (1978).
Equal protection not violated. Subsection (4)(d) does not create a classification subject to challenge under the equal protection clause. People ex rel. Lasavio v. J.L., 195 Colo. 494 , 580 P.2d 23 (1978).
Oral advisement of rights in presence of grand jury does not meet requirements of this section and does not afford the witness the protection intended by this section that he be permitted to exercise his privilege against self-incrimination outside the presence of the grand jury without having to appear and do so in the presence of the grand jury. People ex rel. Gallagher v. District Court, 198 Colo. 468 , 601 P.2d 1380 (1979).
Inappropriate conduct by district attorney merits court's release of grand jury transcripts to defense. Only in case where clear examples of inappropriate conduct by the district attorney may affect the validity of the defendant's indictment, or the determination of probable cause, should the trial court sacrifice the confidentiality of the grand jury proceedings and release a transcript of the grand jury colloquy to defense counsel. People v. District Court, 199 Colo. 398 , 610 P.2d 490 (1980).
Indictment is culmination of probable cause screening process of grand jury and that procedure functions as a constitutionally adequate substitute for a preliminary hearing. People v. District Court, 199 Colo. 398 , 610 P.2d 490 (1980).
When indictment properly dismissed. Where trial judge, with probable cause as the criteria for determining the sufficiency of the record to support the indictment, concluded that the record was insufficient to support the charges contained in the indictment, the indictment was properly dismissed. People v. Laughlin, 621 P.2d 1388 (Colo. 1981).
Court to evaluate finding of probable cause. The duty of the trial court under subsection (4)(k) is to evaluate the sufficiency of the evidence presented to the grand jury to establish probable cause. People v. Luttrell, 636 P.2d 712 (Colo. 1981).
Standards for review of determination of probable cause. The district court function in conducting a review of the grand jury record, as authorized by subsection (4)(k), is much like the role of the court at a preliminary hearing and the same rule applies in determining the existence or absence of probable cause. The court must draw all inferences in favor of the prosecution, and when there is a conflict in the testimony a question of fact exists for determination at trial. People v. Summers, 197 Colo. 445 , 593 P.2d 969 (1979); People v. Luttrell, 636 P.2d 712 ( Colo. 1981 ).
Subsection (4)(k) unambiguously requires a district court to dismiss "any indictment" from a grand jury that lacks probable cause, including an indictment count that is a sentence enhancer. A proceeding under this section is different from a preliminary hearing in which the court's authority is limited to dismissing "an offense" that lacks probable cause. People v. Soto-Campos, 2018 COA 118 , 436 P.3d 566.
In determining whether compliance with subpoena duces tecum will be "unreasonable or oppressive", the court must balance the competing interests of the individual's right to keep his personal affairs confidential with the grand jury's right to investigate criminal activity. Losavio v. Robb, 195 Colo. 533 , 579 P.2d 1152 (1978).
When evidentiary phase of contempt hearing may be closed to public. The evidentiary phase of a grand jury witness's contempt hearing may be closed to the public and press only upon express findings by the court that: (1) A public hearing would create a clear and present danger to the investigation of matters presently pending before the grand jury; and (2) the prejudicial effect of such information on presently pending grand jury matters cannot be avoided by any reasonable alternative less drastic than closure. In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).
As to procedures at indirect contempt hearing, see In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981).
Grand jury subpoenas not bona fide where obtained by unauthorized persons. Subpoenas for toll records of a telephone subscriber were not bona fide grand jury subpoenas where they were obtained by investigators of strike force who had no authority to represent the state grand jury, and therefore toll records so obtained were properly suppressed. People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 469 U.S. 855, 105 S. Ct. 181, 83 L. Ed. 2d 115 (1984).
Disclosure of grand jury materials to federal prosecutors without prior court approval, in violation of this section, did not violate federal constitutional or statutory rights. United States v. Pignatiello, 628 F. Supp. 68 (D. Colo. 1986).
A writ to transport an inmate to a grand jury hearing is not the functional equivalent of a subpoena to testify at the hearing. As such, an advisement of rights under subsection (4) is not required. People v. Seader, 2012 COA 184 , 292 P.3d 1193.
Written advisement requirement of subsection (4) does not apply to non-subpoenaed, voluntary witnesses. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).
Term "any witness", as used in subsection (4)(b), means any subpoenaed witness who did not receive a written advisement upon the subpoena. It does not include a voluntary witness. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).
The right to service of a subpoena bearing an advance written advisement is a statutory right subject to voluntary waiver. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).
Violation of procedures may warrant dismissal of indictment if behavior of government agents is so outrageous as to violate fundamental fairness and shock the universal sense of justice. People v. Auld, 815 P.2d 956 (Colo. App. 1991); People v. Bergen, 883 P.2d 532 (Colo. App. 1994).
Alleged prosecutorial misconduct held not sufficient to warrant dismissal where evidence against defendant was strong, unauthorized changes to transcript after return of indictment were minor, and review of records and affidavits supported trial court's determination that grand jury discharged its duty without malice, ill will, fear, or favoritism. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).
No right to evidentiary hearing on issue of off-the-record prosecutorial misconduct where evidence presented during recorded proceedings was more than sufficient to support the indictment. Although grand jury secrecy is not absolute, breach of that security should be countenanced only upon compelling need. People v. Bergen, 883 P.2d 532 (Colo. App. 1994).
Applied in Lindsay v. People, 119 Colo. 483 , 204 P.2d 878 (1949); People v. DeJesus, 184 Colo. 230 , 519 P.2d 944 (1974); Thomas v. County Court, 198 Colo. 87 , 596 P.2d 768 (1979); People v. North Ave. Furn. & Appliance, Inc., 645 P.2d 1291 ( Colo. 1982 ); People v. Armstrong, 664 P.2d 713 (Colo. App. 1982); People v. Moyer, 670 P.2d 785 ( Colo. 1983 ).
16-5-205. Informations - authority to file - indictments - warrants and summons.
- The prosecuting attorney may file an information in the court having jurisdiction over the offense charged, alleging that a person committed the criminal offense described therein. The court shall enter an order fixing the amount of bail, if the offense is bailable, and the amount of bail shall be endorsed upon any warrant issued for the arrest of the alleged offender. When a summons is issued instead of a warrant, no bail shall be fixed; except that, when a person is charged with an offense pursuant to section 42-2-138 (1)(d) or 42-4-1301 (1) or (2)(a), C.R.S., the court may enter an order fixing the amount of bail even if a summons is issued.
- Upon the return of an indictment by a grand jury, or the filing of an information, or the filing of a felony complaint in the county court, the prosecuting attorney shall request the court to order that a warrant shall issue for the arrest of the defendant, or that a summons shall issue and be served upon the defendant. If a warrant is requested upon an information or a felony complaint, the information or felony complaint must contain, or be accompanied by, a sworn written statement of facts establishing probable cause to believe that the criminal offense was committed as alleged by the person for whom the warrant is sought. In lieu of such sworn statement, the information or felony complaint may be supplemented by sworn testimony of such facts. Such testimony must be transcribed and then signed under oath by the witness giving the testimony.
- Except as otherwise provided in this article, any information, indictment, felony complaint, warrant, or summons shall comply with the requirements of applicable rules of criminal procedure adopted by the supreme court of Colorado. Any procedures connected with service of summons, the arrest and detention of an alleged offender upon a warrant, and the duties of the arresting officer relating to the summons or arrest, not specifically set forth in this code, shall be as provided by the applicable rules of criminal procedure adopted by the supreme court of Colorado.
- Repealed.
Source: L. 72: R&RE, p. 215, § 1. C.R.S. 1963: § 39-5-205. L. 77: (4) added, p. 856, § 2, effective June 21. L. 89: (4) amended, p. 779, § 7, effective July 1. L. 91: (4) amended, p. 402, § 2, effective June 6. L. 97: (4) repealed, p. 315, § 2, effective October 1. L. 2008: (1) amended, p. 785, § 1, effective July 1.
ANNOTATION
Law reviews. For article, "By Leave of Court First Had", see 8 Dicta 10 (May, 1931). For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963).
Annotator's note. Since § 16-5-205 is similar to repealed § 39-4-1, C.R.S. 1963, § 39-4-1, CRS 53, and CSA, C. 48, § 454, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
This section provides concurrent methods of proceeding against a criminal defendant. Falgout v. People, 170 Colo. 32 , 459 P.2d 572 (1969).
In each method there are provisions to protect the accused against discrimination and oppression on the part of the district attorney. Falgout v. People, 170 Colo. 32 , 459 P.2d 572 (1969).
Constitutionality. Provision allowing prosecutions upon information was held not unconstitutional when surrounded by proper regulations and safeguards and made applicable to all persons and communities in the state without discrimination. In re Dolph, 17 Colo. 35, 28 P. 470 (1891).
Provision requiring a proper and sufficient affidavit supporting information before warrant of arrest can issue was held constitutionally valid as not opposed to § 7 of art. II, Colo. Const., the provision of the bill of rights relating to warrants. Ratcliff v. People, 22 Colo. 75, 43 P. 553 (1896).
The portion of this section which authorizes initiation of criminal proceedings by direct information is not a violation of due process or equal protection of the law. Falgout v. People, 170 Colo. 32 , 459 P.2d 572 (1969).
No constitutional provision forbids indictments and informations as concurrent remedies when surrounded by proper regulations and safeguards. Falgout v. People, 170 Colo. 32 , 459 P.2d 572 (1969).
This section is a valid exercise by the general assembly of its power pursuant to § 23, of art. II, Colo. Const. de'Sha v. Reed, 194 Colo. 367 , 572 P.2d 821 (1977).
This section applies to the extent of any conflict with Crim. P. 6.7. de'Sha v. Reed, 194 Colo. 367 , 572 P.2d 821 (1977).
Information provision pari materia with system of prosecution. The legislative acts providing for the prosecution of crimes, naming the parties who shall prosecute, and prescribing the means and methods to be pursued are all parts of the same system and must be construed in pari materia. People v. Gibson, 53 Colo. 231, 125 P. 531 (1912).
It is general both in form and substance and of uniform operation throughout the state. In re Dolph, 17 Colo. 35, 28 P. 470 (1891).
Neither the prosecuting attorney nor any other officer is authorized to exercise an arbitrary discretion in the matter of instituting criminal prosecutions. Falgout v. People, 170 Colo. 32 , 459 P.2d 572 (1969).
Discretion is given to the prosecuting attorney to determine whether in any given case an information ought or ought not to be filed. He is the official possessed of the power and charged with the duty to accuse of crime by information in like manner as the grand jury is in cases by indictment. Stainer v. San Luis Valley Land & Mining Co., 166 F. 220 (8th Cir. 1908).
Complaining witness or victim of crime has no control over case, since he is not a party to it he can neither require prosecution of the case nor its dismissal. People v. Lucero, 623 P.2d 424 (Colo. App. 1980).
Preliminary hearing unnecessary before filing information. It is not necessary in order to vest power in the prosecuting attorney to file an information that there shall be a preliminary hearing and commitment. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).
There is no procedure for dismissing a felony complaint without prejudice. Once the filing of a felony complaint in county court is dismissed, the prosecution must either obtain a grand jury indictment or file an information directly in the district court. People v. Williams, 987 P.2d 232 (Colo. 1999).
Determination of probable cause after arrest. Where insufficient information was presented to the court at the time of the filing of the information, which was sufficiently verified by a police officer, probable cause could be determined after the arrest. People v. Mundt, 38 Colo. App. 331, 561 P.2d 1272 (1976).
Applied in People v. Read, 132 Colo. 390 , 288 P.2d 347 (1955); People v. Rice, 40 Colo. App. 357, 579 P.2d 647 (1978).
16-5-205.5. Grand jury reports.
- In any case in which a grand jury does not return an indictment, the grand jury may prepare or ask to be prepared a report of its findings if the grand jury determines that preparation and release of a report would be in the public interest, as described in subsection (5) of this section. The determination to prepare and release a report pursuant to this section must be made by an affirmative vote of at least the number of jurors that would have been required to return an indictment. The report shall be accompanied by certification that the grand jury has determined that release of the report is in the public interest, as described in subsection (5) of this section.
- The provisions of this section shall not apply in any instance in which the prosecuting attorney chooses to file charges against the person or business that was the subject of the grand jury investigation.
- Within fourteen days after receiving a report of the grand jury prepared pursuant to subsection (1) of this section, the prosecuting attorney shall notify in writing all persons and businesses named in the grand jury report to give such persons and businesses an opportunity to review the grand jury report and prepare a response to be submitted to the court with the grand jury report. Such notice shall be by personal service or by certified mail return receipt requested. Any responses shall be submitted to the prosecuting attorney within fourteen days after notification.
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Upon completion of the time for submitting responses, the prosecuting attorney shall submit the grand jury report to the court, together with the certification of public interest and any responses that may have been submitted. The court shall examine the report and make an order accepting and filing the report, including the certification and any responses that the respondent, by written notice to the prosecuting attorney and the court, has agreed to release, as a public record only if the court is satisfied that:
- The grand jury and the prosecuting attorney were acting within the statutory jurisdiction of such persons in convening the grand jury; and
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The grand jury foreman and the prosecuting attorney have verified on the record that:
- The certification of public interest by the grand jury complies with the provisions of subsection (5) of this section; and
- The report is based on facts revealed in the course of the grand jury investigation and is supported by a preponderance of the evidence; and
- The report does not contain material the sole effect of which is to ridicule or abuse a person or business or to subject such person or business to public disgrace or embarrassment; and
- The report does not contain material that is personal in nature that does not relate to any lawful inquiry; and
- No confidentiality agreement will be violated and the identity of no confidential informant will be disclosed in making such grand jury report public; and
- The filing of such report as a public record does not prejudice the fair consideration of a criminal matter.
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Release of a grand jury report pursuant to this section may be deemed to be in the public interest only if the report addresses one or more of the following:
- Allegations of the misuse or misapplication of public funds;
- Allegations of abuse of authority by a public servant, as defined in section 18-1-901 (3)(o), C.R.S., or a peace officer, as described in section 16-2.5-101;
- Allegations of misfeasance or malfeasance with regard to a governmental function, as defined in section 18-1-901 (3)(j), C.R.S.;
- Allegations of commission of a class 1, class 2, or class 3 felony.
Source: L. 97: Entire section added, p. 313, § 1, effective October 1. L. 2003: (5)(b) amended, p. 1614, § 8, effective August 6. L. 2012: (3) amended, (SB 12-175), ch. 208, p. 849, § 72, effective July 1.
ANNOTATION
Grand jury had discretion to release a report under this statute even though it did not choose to issue an indictment and trial court was correct in approving the release of the grand jury report in this instance. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).
Term "case" in the statute means any matter that has become the object of investigation arising out of the subject matter of inquiry. If a single, comprehensive investigation by a grand jury led to an indictment, this section prohibits the release of a grand jury report on another issue of the investigation unrelated to the indictment. In re 2003-2004 Term of the State Grand Jury, 148 P.3d 440 (Colo. App. 2006).
Trial court's role in reviewing the grand jury proceedings is limited. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).
Statute's legislative history evidences intent of general assembly that the court should have limited discretion in determining whether a grand jury report should be released. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).
Because the general assembly did not provide in statute for disclosure of grand jury reports and limited the court's role in reviewing grand jury reports, it intended that persons named respond only to the information contained in the report. Open-ended discovery of the grand jury proceedings is not an option. In re 2000-2001 Dist. Grand Jury, 77 P.3d 779 (Colo. App. 2003), aff'd, 97 P.3d 921 ( Colo. 2004 ).
Party to grand jury report failed to demonstrate that this section affects a cognizable due process interest, and, thus, federal due process concerns are not implicated. In re 2000-2001 Dist. Grand Jury, 97 P.3d 921 (Colo. 2004).
Role of a trial court reviewing a grand jury report for the purpose of determining whether it should be released or not is to review the report independently to determine whether, on its face, the report satisfies the requirement that it concern matters of public interest, as defined by the statute, and to measure the certification of the grand jury foreperson and the prosecuting attorney against the facts contained in the report. Trial court had obligation to verify that the report comports with the certification and in this instance the trial court did not err in permitting the release of a report. In re 2000-2001 Dist. Grand Jury Report, 22 P.3d 922 (Colo. 2001).
Purpose of subsection (4) is to prevent the grand jury process from being used as a subterfuge to obtain information for use in other proceedings. Charnes v. Lilly, 197 Colo. 460 , 593 P.2d 967 (1979) (decided under repealed § 16-5-205 (4) ).
Word "report" in subsection (4) is all-inclusive and includes transcripts. Charnes v. Lilly, 197 Colo. 460 , 593 P.2d 967 (1979) (decided under repealed § 16-5-205 (4) ).
"Report" also includes corporate records used in grand jury proceedings. People v. Tynan, 701 P.2d 80 (Colo. App. 1984) (decided under repealed § 16-5-205 (4)).
"Misfeasance" defined as conduct that is not simply bad public policy but an illegal, wrongful, or corrupt exercise of government power. In re 2010 Denver County Grand Jury, 2012 COA 45 , 296 P.3d 168.
16-5-206. Summons in lieu of warrant.
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Except in class 1, class 2, and class 3 felonies, level 1 and level 2 drug felonies, and in unclassified felonies punishable by a maximum penalty of more than ten years, if an indictment is returned or an information, felony complaint, or complaint has been filed prior to the arrest of the person named as defendant therein, the court has power to issue a summons commanding the appearance of the defendant in lieu of a warrant for his or her arrest unless a law enforcement officer presents in writing a basis to believe there is a significant risk of flight or that the victim or public safety may be compromised.
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(1.5) (a) Except in class 1, class 2, class 3, and class 4 felonies; in crimes described in section 24-4.1-302 (1), C.R.S.; and in unclassified felonies punishable by a maximum penalty of more than ten years, a law enforcement officer may issue a summons commanding the appearance of the defendant in lieu of a warrant for his or her arrest based on probable cause if:
- The local district attorney consents to such procedure and has developed and approved criteria for the issuance of such a summons pursuant to this subsection (1.5);
- There is a reasonable likelihood that the defendant will appear;
- The defendant has had no felony arrests during the preceding five years;
- There is no allegation that the defendant used a deadly weapon as defined in section 18-1-901 (3)(e), C.R.S., in the commission of the crime; and
- There are no outstanding warrants for the defendant's arrest.
- No later than ten days after a law enforcement officer issues a summons pursuant to this subsection (1.5), he or she shall deliver a copy to the court and to the office of the district attorney where jurisdiction lies.
- When the procedure described in this subsection (1.5) is used, an information or complaint may be filed in open court on the date specified in the summons.
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(1.5) (a) Except in class 1, class 2, class 3, and class 4 felonies; in crimes described in section 24-4.1-302 (1), C.R.S.; and in unclassified felonies punishable by a maximum penalty of more than ten years, a law enforcement officer may issue a summons commanding the appearance of the defendant in lieu of a warrant for his or her arrest based on probable cause if:
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If a summons is issued in lieu of a warrant under this section:
- It shall be in writing.
- It shall state the name of the person summoned and his address.
- It shall identify the nature of the offense.
- It shall state the date when issued and the county where issued.
- It shall be signed by the judge or clerk of the court with the title of his office or by the law enforcement officer who issued the summons.
- It shall command the person to appear before the court at a certain time and place.
- It shall advise the person summoned that the person can elect to provide a mobile telephone number that will solely be used to provide text message reminders of future court dates and unplanned court closures, and provide an opportunity for the person to provide a mobile telephone number for that purpose.
- A summons issued under this section may be served in the same manner as the summons in a civil action or by mailing it to the defendant's last-known address by certified mail with return receipt requested not less than fourteen days prior to the time the defendant is requested to appear. Service by mail is complete upon the return of the receipt signed by the defendant.
- If any person summoned under this section fails to appear as commanded by the summons, the court shall forthwith issue a warrant for his arrest.
Source: L. 72: R&RE, p. 216, § 1. C.R.S. 1963: § 39-5-206. L. 2009: (1) amended, (HB 09-1262), ch. 104, p. 381, § 1, effective August 5. L. 2012: (3) amended, (SB 12-175), ch. 208, p. 849, § 73, effective July 1. L. 2013: (1) amended, (SB 13-250), ch. 333, p. 1928, § 38, effective October 1. L. 2016: (1.5) added and IP(2) and (2)(e) amended, (HB 16-1104), ch. 118, p. 337, § 1, effective August 10. L. 2019: (2)(g) added, (SB 19-036), ch. 293, p. 2687, § 5, effective July 1, 2020.
16-5-207. Standards and criteria relating to issuance of summons in lieu of warrant.
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A summons shall be issued instead of a warrant in all petty offenses, class 3 misdemeanors, and all unclassified offenses which are punishable by a maximum penalty of six months' imprisonment or less, except in those cases where the court finds that:
- The defendant has previously failed to respond to a summons for an offense; or
- There is a substantial likelihood that the defendant will not respond to a summons; or
- The whereabouts of the defendant is unknown and the issuance of an arrest warrant is necessary in order to subject him to the jurisdiction of the court.
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Except in class 1, class 2, and class 3 felonies or level 1 or level 2 drug felonies, the general policy shall favor issuance of a summons instead of a warrant for the arrest of the defendant except where there is reasonable ground to believe that, unless taken into custody, the defendant will flee to avoid prosecution or will fail to respond to a summons. The court shall issue a summons instead of an arrest warrant when the prosecuting attorney so requests. When an application is made to a court for issuance of an arrest warrant or summons, the court may require the applicant to provide such information as reasonably is available concerning the following:
- The defendant's residence;
- The defendant's employment;
- The defendant's family relationships;
- The defendant's past history of response to legal process; and
- The defendant's past criminal record.
Source: L. 72: R&RE, p. 216, § 1. C.R.S. 1963: § 39-5-207. L. 2013: IP(2) amended, (SB 13-250), ch. 333, p. 1928, § 39, effective October 1.
16-5-208. Information not filed - reasons.
In all cases where on preliminary hearing in the county court concerning the commission of a felony the accused is bound over and is committed to jail, or recognized and held to bail, it is the duty of the district attorney to file an information in the district court. If the district attorney determines in any such case that an information ought not to be filed, he or she shall file with the clerk of the district court having jurisdiction of the supposed offense a written statement containing his or her reasons, in fact and in law, for not filing an information in the case, and such statement shall be filed within sixty-three days following the date upon which the offender was held for appearance.
Source: L. 72: R&RE, p. 217, § 1. C.R.S. 1963: § 39-5-208. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 849, § 74, effective July 1.
16-5-209. Judge may require prosecution.
The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so. The judge shall appoint the special prosecutor from among the full-time district attorneys, assistant district attorneys, or deputy district attorneys who serve in judicial districts other than where the appointment is made; except that, upon the written approval of the chief justice of the supreme court, the judge may appoint any disinterested private attorney who is licensed to practice law in the state of Colorado to serve as the special prosecutor. Any special prosecutor appointed pursuant to this section shall be compensated as provided in section 20-1-308, C.R.S.
Source: L. 72: R&RE, p. 217, § 1. C.R.S. 1963: § 39-5-209. L. 77: Entire section amended, p. 858, § 1, effective May 24. L. 2000: Entire section amended, p. 454, § 12, effective April 24.
ANNOTATION
Purpose of this section is to allow persons who believe that a prosecuting attorney is not pursuing a case with diligence to petition the court to review the status of the case. Dohaish v. Tooley, 670 F.2d 934 (10th Cir.), cert. denied, 459 U.S. 826, 103 S. Ct. 60, 74 L. Ed. 2d 63 (1982).
This section provides a remedy only for a district attorney's refusal to file charges, not for refusal to investigate criminal charges. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).
The scope of appellate court review under this section is a mixed question of law and fact. A district court's factual findings resulting from an evidentiary hearing may only be disturbed if clearly erroneous and not supported by the record. However, the district court's application of the statutory standard may be reviewed de novo. J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).
Evidence necessary for judge to substitute judgment. A district judge should not, in the absence of clear and convincing evidence that the terms of this section have been met, substitute his judgment or discretion for that of the prosecutor in a criminal case. Tooley v. District Court, 190 Colo. 468 , 549 P.2d 772 (1976).
The district attorney's decision not to prosecute a case may not be challenged unless there is a showing that his decision was arbitrary or capricious. People ex rel. Losavio v. Gentry, 199 Colo. 153 , 606 P.2d 57 (1980); Sandoval v. Farish, 675 P.2d 300 ( Colo. 1984 ).
District attorney's decision not to prosecute a woman for alleged theft by deception was not proved to be arbitrary or capricious and without reasonable excuse, and therefore the judge could not substitute his judgment or discretion for that of the prosecutor. Landis v. Farish, 674 P.2d 957 (Colo. 1984).
There must be a clear and convincing showing that the prosecutor's decision not to prosecute was arbitrary and capricious and without reasonable excuse before the court will order prosecution or the appointment of a special prosecutor. The court's finding that there were credibility issues with the alleged victim's claims, the lack of specificity regarding the where and when the events occurred, and the passage of time show the court's decision was not arbitrary and capricious. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).
The first step for a court to consider is whether a prosecuting attorney has made a decision not to prosecute. This section requires a refusal to prosecute for the inquiry to continue. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).
Challenging party has the burden of proof and even a strong showing does not shift the burden of proof to the prosecutor. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990); J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).
This section provides for a prosecutor's appearance at a court-ordered hearing to "explain the refusal" to prosecute. The statute does not require the prosecutor to present evidence. J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).
This section calls for the usual type of hearing in which both parties are given the opportunity to present evidence and argument. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990).
Each party has the right to present rebuttal evidence to the testimony of a witness concerning a material issue, including the right to call witnesses for such purpose. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990).
Actions brought under this section are special statutory proceedings not exempted from application of the rules of civil procedure because this section lacks an adequate, exclusive, full, and complete procedure. To hold otherwise is to render the legislature's mechanism for prevention of prosecutorial abuses a hollow shell and is not consonant with sound judicial administration. Trial court thus erred in denying challenging party's requests for discovery and a continuance to permit discovery and in failing to exercise its discretion concerning whether to allow discovery. Moody v. Larsen, 802 P.2d 1169 (Colo. App. 1990).
The amendment to this section in 2000 effectively eliminated the right to formal discovery and the right to a full evidentiary hearing. Consequently, the trial court may, at its discretion, provide for an evidentiary hearing after it has considered the petitioner's affidavit, the explanation of the district attorney, if required by the court, and any argument of the parties. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).
The 2000 amendment also established that this section creates a special statutory proceeding that is exempted from application of the rules of civil procedure. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).
This section does not require the court to require the prosecuting attorney to appear before the court and explain the refusal to prosecute. Kailey v. Chambers, 261 P.3d 792 (Colo. App. 2011).
This section contemplates that the prosecuting attorney may appear in person before the court and explain the refusal to prosecute. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).
Under this section, the "prosecuting attorney" is the only individual who may be ordered to prosecute a case; therefore, dismissal of assistant attorneys from proceeding brought under this section is proper. Schupper v. Smith, 128 P.3d 323 (Colo. App. 2005).
District attorney's explanation for declining to prosecute identified reasons that were supported by some competent evidence and were proper factors under Sandoval v. Farish, 675 P.2d 300 ( Colo. 1984 ). The district attorney's analysis of factors in support of declining prosecution were not so overwhelmed by factors that favor prosecution as to compel the conclusion that the district attorney's exercise of broad discretion was arbitrary and capricious. J.S. v. Chambers, 226 P.3d 1193 (Colo. App. 2009).
PART 3 PRELIMINARY HEARING
16-5-301. Preliminary hearing or waiver - dispositional hearing.
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- Every person accused of a class 1, 2, or 3 felony or level 1 or level 2 drug felony by direct information or felony complaint has the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. In addition, only those persons accused of a class 4, 5, or 6 felony by direct information or felony complaint which felony requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406, C.R.S., or is a sexual offense under part 4 of article 3 of title 18, C.R.S., shall have the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. The procedure to be followed in asserting the right to a preliminary hearing and the time within which demand therefor must be made, as well as the time within which the hearing, if demanded, shall be had, shall be as provided by applicable rule of the supreme court of Colorado. A failure to observe and substantially comply with such rule shall be deemed a waiver of this right to a preliminary hearing.
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- No person accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony by direct information or felony complaint, except those which require mandatory sentencing or which are crimes of violence as defined in section 18-1.3-406, C.R.S., or which are sexual offenses under part 4 of article 3 of title 18, C.R.S., shall have the right to demand or receive a preliminary hearing; except that such person shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution.
- Any defendant accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony who is not otherwise entitled to a preliminary hearing pursuant to subparagraph (I) of this paragraph (b), may demand and shall receive a preliminary hearing within a reasonable time pursuant to paragraph (a) of this subsection (1), if the defendant is in custody for the offense for which the preliminary hearing is requested; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing.
- The chief justice of the Colorado supreme court is encouraged to promulgate rules defining the term "dispositional hearing" for purposes of this paragraph (b), section 18-1-404 (2), C.R.S., and section 19-2-705 (1.5), C.R.S.
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If a person is accused of an unlawful sexual offense classified as a felony, upon the request of any party to the proceeding, the court may exclude from the preliminary hearing any member of the general public. In making a ruling for exclusion, the court shall:
- Set forth sufficient findings of fact and conclusions of law to support the order; and
- Make its order sufficiently narrow to protect the requesting party's compelling interest considering any reasonable alternative to exclusion for the entire hearing of all members of the general public.
- The court may exempt a victim's advocate from any order entered pursuant to subsection (2) of this section. For the purposes of this section, "victim's advocate" means any person whose regular or volunteer duties include the support of an alleged victim of physical or sexual abuse or assault.
Source: L. 72: R&RE, p. 217, § 1. C.R.S. 1963: § 39-5-301. L. 73: p. 499, § 3. L. 87: Entire section amended, p. 603, § 2, effective July 1. L. 92: Entire section amended, p. 321, § 1, effective July 1. L. 98: (1) amended, p. 1272, § 1, effective July 1. L. 2000: (1)(b)(II) amended, p. 454, § 11, effective April 24. L. 2002: (1)(a) and (1)(b)(I) amended, p. 1490, § 133, effective October 1. L. 2013: (1)(a) and (1)(b)(II) amended, (SB 13-250), ch. 333, p. 1929, § 40, effective October 1. L. 2014: (1)(b)(I) amended, (SB 14-163), ch. 391, p. 1979, § 23, effective June 6.
Cross references: For the legislative declaration contained in the 2002 act amending subsections (1)(a) and (1)(b)(I), see section 1 of chapter 318, Session Laws of Colorado 2002.
ANNOTATION
Law reviews. For article, "By Leave of Court First Had", see 8 Dicta 10 (June 1931). For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For note, "Preliminary Hearings -- The Case for Revival", see U. Colo. L. Rev. 580 (1967). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to right of access to criminal proceedings, see 15 Colo. Law. 1563 (1986). For article, "Felony Preliminary Hearings in Colorado", see 17 Colo. Law. 1085 (1988).
Annotator's note. Since § 16-5-301 is similar to repealed § 39-5-1, C.R.S. 1963, CSA, C. 48, § 461, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Right to preliminary hearing has constitutional foundation. Defendant in requesting and obtaining a preliminary hearing is exercising a right that is not only guaranteed him by statute and rule of court, but also one that has a constitutional foundation. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
There is no constitutional requirement making a preliminary hearing a prerequisite to a prosecution by information. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).
There is no federal constitutional requirement of a preliminary hearing before proceeding by information. Falgout v. People, 170 Colo. 32 , 459 P.2d 572 (1969); People v. Moody, 630 P.2d 74 ( Colo. 1981 ).
The primary purpose of the preliminary hearing is to determine whether probable cause exists to support the prosecution's charge that the accused committed a specific crime. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973); People v. Lancaster, 683 P.2d 1202 ( Colo. 1984 ); People v. District Court, 779 P.2d 385 ( Colo. 1989 ); People v. Sutherland, 886 P.2d 681 ( Colo. 1994 ).
The preliminary hearing is held for the limited purpose of determining if probable cause exists to believe that the crime or crimes charged were committed by the defendant. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).
The sole issue at the preliminary hearing is probable cause. Lucero v. District Court, 188 Colo. 67 , 532 P.2d 955 (1975).
The preliminary hearing is a screening device to determine whether probable cause exists. People v. Weaver, 182 Colo. 221 , 511 P.2d 908 (1973).
A preliminary hearing is a screening device and does not require that the prosecution lay out for inspection and for full examination all witnesses and evidence. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
Evidence to support a conviction is not required at a preliminary hearing. People v. Brisbin, 727 P.2d 374 ( Colo. 1986 ); People v. District Court, 779 P.2d 385 ( Colo. 1989 ).
The preliminary hearing was created as a screening device to afford the defendant an opportunity to challenge the sufficiency of the prosecution's evidence to establish probable cause before an impartial judge. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).
Because the preliminary hearing is a screening device, much latitude is accorded the prosecution at this stage, and the trial court is obligated to view the evidence presented in the light most favorable to the prosecution. People v. District Court, 803 P.2d 193 (Colo. 1990).
Trial court did not have the authority to dismiss defendant's felony charge on the basis that defendant had not received a timely preliminary hearing. Because defendant was not in the custody of the county charging him with the felony, he was not legally entitled to a preliminary hearing. People v. Pena, 250 P.3d 592 (Colo. App. 2009).
Preliminary hearing does not alter proposition that accused entitled to one trial on merits. Although a preliminary hearing provides the defendant with an early opportunity to question the government's case, it is not designed to alter the basic proposition that an accused is entitled to one trial on the merits of the charge. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
Standards for determining probable cause at preliminary hearing are: (1) Probable cause is established when the evidence is sufficient to induce a person of ordinary prudence and caution to a reasonable belief that the defendant committed the crimes charged; (2) the evidence presented must be viewed in the light most favorable to the prosecution; (3) if testimony conflicts, the trial court must draw an inference for the prosecution; and (4) the preliminary hearing is a screening device and not a trial. People v. Williams, 628 P.2d 1011 ( Colo. 1981 ); Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 ( Colo. 1994 ).
Judge without jurisdiction to adjudge ultimate guilt. In a preliminary hearing of one charged with the commission of a crime, the judge is without jurisdiction to adjudge the ultimate guilt or innocence of the accused. Ex parte Snyder, 110 Colo. 35 , 129 P.2d 672 (1942).
Judging the merits of a case is for the trier of facts at trial and not for the trial judge at a preliminary hearing. People v. District Court, 779 P.2d 385 (Colo. 1989).
Hearsay and other evidence may be bulk of evidence at hearing. Hearsay and other evidence, which would be incompetent if offered at the time of trial, may be the bulk of evidence at a preliminary hearing. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
Hearsay evidence considered to establish probable cause. Hearsay evidence, which would otherwise be inadmissible at the trial, may be considered for purposes of establishing probable cause. People v. Williams, 628 P.2d 1011 (Colo. 1981).
Prosecution satisfies minimum requirements for use of hearsay at preliminary hearing if it: (1) Presents some competent nonhearsay evidence that addresses an essential element of the offense; and (2) presents the hearsay evidence through a witness who is connected to the offense or its investigation rather than someone merely reading from a report. In this case, the prosecution satisfied the status elements of the offense through nonhearsay testimony and produced the victim's testimony (hearsay) through the investigating officer who was familiar with the case. People v. Huggins, 220 P.3d 977 (Colo. App. 2009).
Court's failure to apply correct standard for use of hearsay at preliminary hearing was abuse of discretion. Applying the correct standard, the evidence presented at the preliminary hearing established probable cause to believe the defendant committed the charged offenses. People v. Huggins, 220 P.3d 977 (Colo. App. 2009).
Resolving admissibility of such evidence. The admissibility at a preliminary hearing of a confession which is alleged to be involuntary or the admissibility of evidence that may have been seized in violation of the fourth amendment to the United States Constitution need not be resolved on the same basis that would be required when such motion is properly before the trial court or at the time of the trial. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
Failure to establish an articulable suspicion for stopping defendant or probable cause for arrest at preliminary hearing is not grounds for dismissal of charges. People v. Brisbin, 727 P.2d 374 (Colo. 1986).
Probable cause finding may be based largely on hearsay testimony. Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).
However reliance on hearsay evidence must not be abused. Maestas v. District Ct., 541 P.2d 889 ( Colo. 1975 ); Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 ( Colo. 1994 ).
Preliminary hearing deemed waived if not demanded. The statutory right to receive a preliminary hearing is not absolute and requires that either the defendant or his attorney, or the prosecuting attorney, file a written motion demanding the preliminary hearing; if the defendant fails to file a written motion for a preliminary hearing, he is deemed to have waived his right to demand one. People v. Moody, 630 P.2d 74 (Colo. 1981).
A defendant, charged with a class five felony is conferred the right to a preliminary hearing only if that defendant is in custody for the offense for which the preliminary hearing is requested. The defendant's right to a preliminary hearing is lost under the circumstance that he or she is in custody for an offense other than that for which the preliminary hearing is requested. People v. Taylor, 104 P.3d 269 (Colo. App. 2004).
Refusal to appear constitutes waiver. In addition to an express written waiver, refusal by a defendant to appear at a scheduled preliminary hearing where the county judge had advised the defendant's attorney that the defendant's presence was required constitutes an implied waiver and extinguishes the defendant's right to a preliminary hearing in county court. People v. Abbott, 638 P.2d 781 (Colo. 1981).
As does failure to appear. Where it is clear that a defendant was apprised of his right to a hearing and of the date on which he was required to appear, the failure of both the defendant and his attorney to appear constitutes an implied waiver of the preliminary hearing. People v. Abbott, 638 P.2d 781 (Colo. 1981).
Application for deferred sentencing does not constitute waiver of right to preliminary hearing. Celestine v. District Court, 199 Colo. 514 , 610 P.2d 1342 (1980).
Effect of waiver of preliminary hearing. If the defendant elects to waive the preliminary hearing and to proceed to trial, the waiver operates as an admission by the defendant that sufficient evidence does exist to establish probable cause that the defendant committed the crimes charged. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).
An express written waiver by a defendant of his right to a preliminary hearing operates identically to a failure to file within the time limit prescribed by Crim. P. 5(a)(5), both requiring the defendant's case to be bound over for trial. People v. Abbot, 638 P.2d 781 (Colo. 1981).
Once a county court has bound a defendant over to the district court for trial, the district court is without authority or power to grant the defendant a preliminary hearing. People v. Taylor, 104 P.3d 269 (Colo. App. 2004).
District court cannot restore waived right. Under the Colorado rules of criminal procedure and the statutes of this state, a district court is not vested with the power to restore a defendant's statutory right to a preliminary hearing once the defendant had waived that right in county court bind-over proceedings. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974); People v. Abbott, 638 P.2d 781 ( Colo. 1981 ); People v. Taylor, 104 P.3d 269 (Colo. App. 2004).
Where district court finds that defendant's waiver of right to preliminary hearing is ineffective, the district court has the authority to restore defendant's right to a preliminary hearing. People v. Nichelson, 219 P.3d 1064 (Colo. 2009).
Defendant entitled to a preliminary hearing on all class 1, 2, or 3 felonies even when the felony classification results from a sentence enhancer. People v. Simpson, 2012 COA 156 , 292 P.3d 1153.
Defendant entitled to a preliminary hearing pursuant to criteria of subsection (1)(b)(II) for a class 4 felony driving under the influence (DUI). Defendant was charged with a class 4 felony DUI, not a misdemeanor DUI and a separate sentence enhancer. People v. Tafoya, 2019 CO 13, 434 P.3d 1193.
Defendant not entitled to preliminary hearing because the substantive offense with which defendant was charged was a misdemeanor. People v. Garcia, 176 P.3d 872 (Colo. App. 2007).
The charge of habitual domestic violence offender is a sentence enhancer which, if proven, would enhance the level of the misdemeanor offense to a class 5 felony and would require mandatory sentencing. People v. Garcia, 176 P.3d 872 (Colo. App. 2007).
Habitual criminal counts. Inasmuch as habitual criminal counts do not constitute "offenses", probable cause need not be established in the preliminary hearing to bind these charges over to the district court. Maestas v. District Court, 189 Colo. 443 , 541 P.2d 889 (1975).
Habitual criminal charges are not substantive offense and such a count could be added to a complaint without another preliminary hearing. People v. Hodge, 694 P.2d 1277 (Colo. App. 1984).
Juvenile who was transferred to the district court from the juvenile court, after a transfer hearing where probable cause as to the offenses charged was determined, was not entitled in the district court to another determination of probable cause in the form of a preliminary hearing. People v. Flanigan, 189 Colo. 43 , 536 P.2d 41 (1975).
All evidence presented in a preliminary hearing must be viewed in the light most favorable to the prosecution, and all inferences must be resolved in favor of the prosecution. Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).
Where technical difficulties prevented defendant from obtaining a transcript of the preliminary hearing, the judge abused his discretion in denying defendant's motion for a second preliminary hearing. Such motion should have been granted because the testimony presented at the first preliminary hearing was directly relevant and significant to defendant's trial preparation, the prosecution was expected to rely on testimony presented at the preliminary hearing, and there was no alternative method of reconstructing the testimony from the preliminary hearing. Harris v. District Court, 843 P.2d 1316 (Colo. 1993).
District court does not have jurisdiction to review a county court's finding of probable cause pursuant to C.R.C.P. 106. Defendant may seek extraordinary relief under C.A.R. 21. Abbott v. County Ct. in & for County of Grand, 886 P.2d 730 (Colo. 1994).
Applied in People v. Boyette, 635 P.2d 552 ( Colo. 1981 ); Chavez v. District Court, 648 P.2d 658 ( Colo. 1982 ); People v. Elmore, 652 P.2d 571 ( Colo. 1982 ).
PART 4 STATUTE OF LIMITATIONS
16-5-401. Limitation for commencing criminal proceedings and juvenile delinquency proceedings.
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Except as otherwise provided by statute applicable to specific offenses, delinquent acts, or circumstances, no adult person or juvenile shall be prosecuted, tried, or punished for any offense or delinquent act unless the indictment, information, complaint, or petition in delinquency is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant or juvenile within the period of time after the commission of the offense or delinquent act as specified below:
Murder, kidnapping, treason, any sex offense against a
child, and any forgery regardless of the penalty provided:No limit
Attempt, conspiracy, or solicitation to commit murder;
attempt, conspiracy, or solicitation to commit kidnapping;
attempt, conspiracy, or solicitation to commit treason;
attempt, conspiracy, or solicitation to commit any sex
offense against a child; and attempt, conspiracy, or
solicitation to commit any forgery regardless of the
penalty provided:No limit
Vehicular homicide, except as described in paragraph
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of this subsection (1); leaving the scene of an
accident that resulted in the death of a person:Five years
Other felonies:Three years
Misdemeanors:Eighteen months
Class 1 and 2 misdemeanor traffic offenses:One year
Petty offenses:Six months
- The period of time during which an adult person or juvenile may be prosecuted for the offense of vehicular homicide, as described in section 18-3-106, C.R.S., and leaving the scene of an accident that resulted in the death of a person, as described in section 42-4-1601 (2)(c), C.R.S., when both offenses are alleged to have occurred as part of the same criminal episode in the same indictment, information, complaint, or petition in delinquency filed in a court of competent jurisdiction is ten years.
- Repealed.
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For purposes of this section:
- "Delinquent act" has the same meaning as defined in section 19-1-103 (36), C.R.S.
- "Juvenile" means a child as defined in section 19-1-103 (18), C.R.S.
- "Petition in delinquency" means any petition filed by a district attorney pursuant to section 19-2-512, C.R.S.
- "Sex offense against a child" means any "unlawful sexual offense", as defined in section 18-3-411 (1), C.R.S., that is a felony.
- (1.5) (a) Except as otherwise provided in paragraph (b) of this subsection (1.5), the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to offenses and delinquent acts committed on or after July 1, 1996.
- The provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children shall apply to an offense or delinquent act committed before July 1, 1996, if the applicable statute of limitations, as it existed prior to July 1, 2006, has not yet run on July 1, 2006.
- It is the intent of the general assembly in enacting the provisions of paragraph (a) of subsection (1) of this section concerning sex offenses against children to apply an unlimited statute of limitations to sex offenses against children committed on or after July 1, 1996, and to sex offenses against children committed before July 1, 1996, for which the applicable statute of limitations in effect prior to July 1, 2006, has not yet run on July 1, 2006.
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Except as otherwise provided by statute applicable to specific offenses, delinquent acts, or circumstances, no adult person or juvenile shall be prosecuted, tried, or punished for any offense or delinquent act unless the indictment, information, complaint, or petition in delinquency is filed in a court of competent jurisdiction or a summons and complaint or penalty assessment notice is served upon the defendant or juvenile within the period of time after the commission of the offense or delinquent act as specified below:
- The time limitations imposed by this section shall be tolled if the adult offender or juvenile is absent from the state of Colorado, and the duration of such absence, not to exceed five years, shall be excluded from the computation of the time within which any complaint, information, indictment, or petition in delinquency must otherwise be filed or returned.
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- The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if the indictment, information, complaint, or petition in delinquency which commences the prosecution is quashed or the proceedings thereon are set aside or are reversed on appeal.
- The period within which a prosecution must be commenced does not include any period in which a prosecution is pending against the adult defendant or juvenile for the same conduct, even if filed in a court without jurisdiction, when based on a reasonable belief the court possesses jurisdiction.
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When an offense or delinquent act is based on a series of acts performed at different times, the period of limitation prescribed by this code or by the "Colorado Securities Act", article 51 of title 11, C.R.S., starts at the time when the last act in the series of acts is committed.
(4.5) The period within which a prosecution must be commenced begins to run upon discovery of the criminal act or the delinquent act for:
- Offenses relating to the "Uniform Commercial Code", pursuant to part 5 of article 5 of title 18, C.R.S.;
- Cybercrime, pursuant to article 5.5 of title 18;
- Theft, pursuant to section 18-4-401, C.R.S.;
- Theft of trade secrets, pursuant to section 18-4-408, C.R.S.;
- Defacing or destruction of written instruments, pursuant to section 18-4-507, C.R.S.;
- Criminal simulation, pursuant to section 18-5-110, C.R.S.;
- Obtaining signature by deception, pursuant to section 18-5-112, C.R.S.;
- Criminal impersonation, pursuant to section 18-5-113, C.R.S.;
- Offering a false instrument for recording, pursuant to section 18-5-114, C.R.S.;
- Dual contracts to induce loan, pursuant to section 18-5-208, C.R.S.;
- Issuing a false financial statement or obtaining a financial transaction device by false statements, pursuant to section 18-5-209, C.R.S.;
- Unlawful activity concerning the selling of land, pursuant to section 18-5-302, C.R.S.;
- Offenses relating to equity skimming, pursuant to part 8 of article 5 of title 18, C.R.S.;
- Offenses relating to identity theft, pursuant to part 9 of article 5 of title 18, C.R.S.;
- Offenses relating to bribery and corrupt influences, pursuant to part 3 of article 8 of title 18, C.R.S.;
- Offenses relating to abuse of public office, pursuant to part 4 of article 8 of title 18, C.R.S.;
- Offenses relating to perjury, pursuant to part 5 of article 8 of title 18, C.R.S.;
- Offenses relating to the "Colorado Organized Crime Control Act", pursuant to article 17 of title 18, C.R.S.;
- Unlawful concealment of transactions, pursuant to section 11-107-105, C.R.S.;
- Embezzlement or misapplication of funds, pursuant to section 11-107-107, C.R.S.;
- Unlawful acts or omissions relating to financial institutions, pursuant to section 11-107-108, C.R.S.;
- Repealed.
- Criminal offenses relating to savings and loan associations, pursuant to section 11-41-127;
- Criminal offenses relating to securities fraud, pursuant to part 5 of article 51 of title 11;
- Insurance fraud, pursuant to section 18-5-211;
- Tampering with a deceased human body, pursuant to section 18-8-610.5;
- Abuse of a corpse, pursuant to section 18-13-101; and
- Criminal offenses relating to misuse of gametes, pursuant to section 18-13-131.
- The period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years as to any offense or delinquent act charged under sections 18-8-302, 18-8-303, 18-8-306, 18-8-307, 18-8-402, 18-8-406, 18-8-407, 39-21-118, and 39-22-621 (3), C.R.S.
- Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional seven years as to any offense or delinquent act charged under section 18-6-403, C.R.S., or charged as criminal attempt, conspiracy, or solicitation to commit any of the acts specified in said sections.
- When the victim at the time of the commission of the offense or delinquent act is a child under fifteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be extended for an additional three years and six months as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor.
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Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or juvenile may be prosecuted shall be ten years after the commission of the offense or delinquent act as to any offense or delinquent act:
- Charged under section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-6-403, C.R.S.;
- Charged as a felony under section 18-3-404, C.R.S.; or
- Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraphs (I) and (II) of this paragraph (a).
- As criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (II) of this paragraph (a.5).
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Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., if the victim at the time of the commission of an offense or delinquent act is a child under eighteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be ten years after such victim reaches the age of eighteen years as to any offense or delinquent act:
(I) Charged as a felony under section 18-3-403, C.R.S., as said section existed prior to July 1, 2000, or section 18-3-404, C.R.S.; or
(II) Charged as criminal attempt, conspiracy, or solicitation to commit any of the offenses specified in subparagraph (I) of this paragraph (a.3).
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Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., in any case in which the identity of the defendant or juvenile is determined, in whole or in part, by patterned chemical structure of genetic information, and in which the offense has been reported to a law enforcement agency, as defined in section 26-1-114 (3)(a)(III)(B), C.R.S., within ten years after the commission of the offense, there shall be no limit on the period of time during which a person may be prosecuted after the commission of the offense as to any offense or delinquent act charged:
(I) (Deleted by amendment, L. 2016.)
(II) Under section 18-3-403, C.R.S., as said section existed prior to July 1, 2000; or
(III) (Deleted by amendment, L. 2016.)
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- Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or juvenile may be prosecuted shall be twenty years after the commission of the offense or delinquent act as to any offense or delinquent act charged as a felony under section 18-3-402, C.R.S., or as criminal attempt, conspiracy, or solicitation to commit a felony under section 18-3-402, C.R.S.
- Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, if the victim at the time of the commission of an offense or delinquent act is a child under eighteen years of age, the period of time during which an adult person or juvenile may be prosecuted shall be twenty years after such victim reaches eighteen years of age as to any offense or delinquent act charged as a felony under section 18-3-402, C.R.S., or as criminal attempt, conspiracy, or solicitation to commit a felony under section 18-3-402, C.R.S.
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Except as otherwise provided in paragraph (a) of subsection (1) of this section concerning sex offenses against children, in any case in which the identity of the defendant or juvenile is determined, in whole or in part, by patterned chemical structure of genetic information, and in which the offense has been reported to a law enforcement agency, as defined in section 26-1-114 (3)(a)(III)(B), C.R.S., within twenty years after the commission of the offense, there shall be no limit on the period of time during which a person may be prosecuted after the commission of the offense:
- As to any offense or delinquent act charged as a felony under section 18-3-402, C.R.S.;
- Under any other criminal statute if the offense is a felony or would be a felony if committed by an adult and is based on the same act or series of acts arising from the same criminal episode as the offense or delinquent act charged as a felony under section 18-3-402, C.R.S.; except that this sub-subparagraph (B) does not apply if the court finds that there is no probable cause for the felony under section 18-3-402, C.R.S.; or
- As to criminal attempt, conspiracy, or solicitation to commit any of the offenses in this subparagraph (III).
- This subsection (8) shall apply to offenses and delinquent acts committed on or after July 1, 1984; except that subparagraph (III) of paragraph (a.5) of this subsection (8) applies to offenses and delinquent acts committed on or after July 1, 2011.
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Except as otherwise provided in paragraph (a) of subsection (1) of this section pertaining to sex offenses against children or felony sexual assault in violation of section 18-3-402, C.R.S., and except as otherwise provided in paragraphs (a.3) and (a.5) of this subsection (8), the period of time during which an adult person or juvenile may be prosecuted shall be ten years after the commission of the offense or delinquent act as to any offense or delinquent act:
- Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be five years after the commission of the offense or delinquent act as to a misdemeanor charged under section 18-3-404, C.R.S., or criminal attempt, conspiracy, or solicitation to commit such a misdemeanor. This subsection (9) shall apply to offenses and delinquent acts committed on or after January 1, 1986.
- Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the date of the affected election as to a charge of any violation of any provision of the "Fair Campaign Practices Act", article 45 of title 1, C.R.S., or any criminal attempt, conspiracy, or solicitation to violate any provision of the "Fair Campaign Practices Act". This subsection (10) shall apply to offenses and delinquent acts committed on or after July 1, 1991.
- Notwithstanding the provisions of paragraph (a) of subsection (1) of this section, the period of time during which an adult person or juvenile may be prosecuted shall be three years after the discovery of the offense or delinquent act as to any offense or delinquent act charged under section 18-4-408, C.R.S. This subsection (11) shall apply to offenses and delinquent acts committed on or after July 1, 1998.
- The applicable period of limitations specified in subsection (1) of this section shall not apply to charges of offenses or delinquent acts brought to facilitate the disposition of a case, or to lesser included or non-included charges of offenses or delinquent acts given to the court or a jury at a trial on the merits, by the accused.
Source: L. 72: R&RE, p. 218, § 1. C.R.S. 1963: § 39-5-401. L. 75: (5) added, p. 608, § 1, effective May 15. L. 81: (1) amended, p. 890, § 2, effective July 1; (5) amended, p. 1879, § 1, effective July 1. L. 82: (6) and (7) added, p. 314, § 2, effective July 1; (1)(b) amended, p. 655, § 4, effective January 1, 1983. L. 85: (1)(b) repealed, p. 1359, § 8, effective June 28; (6) amended, p. 616, § 5, effective July 1. L. 87: (1)(a) amended, p. 1495, § 4, effective July 1; (6) and (7) amended and (8) and (9) added, p. 618, § 1, effective July 1. L. 89: (1)(a) amended, p. 827, § 34, effective July 1. L. 90: (1)(a) amended, p. 985, § 6, effective April 24. L. 91: (10) added, p. 646, § 3, effective May 29; (1)(a) amended and (4.5) added, p. 403, § 3, effective June 6. L. 92: (4.5) amended, p. 400, § 7, effective June 3. L. 93: (6) and (8) amended, p. 1726, § 4, effective July 1. L. 94: (6) and (7) amended, p. 1049, § 3, effective July 1. L. 95: (2) amended, p. 462, § 1, effective July 1. L. 98: (4.5) amended and (11) added, p. 156, § 2, effective July 1; (10) amended, p. 819, § 17, effective August 5. L. 2000: (12) added, p. 454, § 10, effective April 24; (6) and (8)(a)(I) amended, p. 710, § 47, effective July 1. L. 2001: Entire section amended, p. 730, § 2, effective July 1; (8)(a) amended and (8)(a.5) added, p. 1057, § 1, effective July 1. L. 2002: (8)(a) amended and (8)(a.3) added, p. 1127, § 1, effective June 3. L. 2003: (3) amended, p. 973, § 4, effective April 17; (4) amended, p. 1325, § 1, effective July 1; (4.5)(r) to (4.5)(u) amended, p. 1209, § 19, effective July 1. L. 2006: (1)(a), (1)(c), (6), (7), (8)(a), (8)(a.3), and (8)(a.5) amended and (1.5) added, p. 410, § 1, effective July 1. L. 2009: (1)(a) amended, (HB 09-1081), ch. 302, p. 1609, § 1, effective July 1; (4.5)(m.5) added, (SB 09-093), ch. 326, p. 1738, § 3, effective July 1. L. 2013: IP(4.5) and (4.5)(t) amended and (4.5)(u) repealed, (SB 13-154), ch. 282, p. 1486, § 64, effective July 1; (4.5)(u) and (4.5)(v) amended and (4.5)(w) added, (SB 13-229), ch. 272, p. 1427, § 3, effective July 1. L. 2014: (1)(a) amended and (1)(a.5) added, (SB 14-213), ch. 344, p. 1535, § 2, effective July 1; (8)(a.5) and (8)(b) amended, (SB 14-059), ch. 58, p. 260, § 1, effective July 1. L. 2016: (6), (8)(a), (8)(a.3), and (8)(a.5) amended and (8)(a.7) added, (HB 16-1260), ch. 363, p. 1514, § 1, effective July 1. L. 2017: (4.5)(v) and (4.5)(w) amended and (4.5)(x) added, (HB 17-1048), ch. 68, p. 215, § 2, effective August 9. L. 2018: (4.5)(b) amended, (HB 18-1200), ch. 379, p. 2292, § 3, effective August 8. L. 2020: (4.5)(w) and (4.5)(x) amended and (4.5)(aa) added, (HB 20-1014), ch. 238, p. 1156, § 6, effective September 14; (4.5)(w) and (4.5)(x) amended and (4.5)(y) and (4.5)(z) added, (HB 20-1148), ch. 100, p. 388, § 3, effective September 14.
Editor's note:
- Amendments to this section by HB 01-1187 and HB 01-1344 were harmonized. Amendments to subsection (4.5)(u) by Senate Bill 13-154 and Senate Bill 13-229 were harmonized.
- Section 7(2) of chapter 238 (HB 20-1014), Session Laws of Colorado 2020, provides that the act changing this section applies to causes of action arising or offenses committed on or after September 14, 2020.
- Section 4(2) of chapter 100 (HB 20-1148), Session Laws of Colorado 2020, provides that the act changing subsection (4.5) applies to offenses committed on or after September 14, 2020, and all offenses committed prior to September 14, 2020, for which the statute of limitations has not expired.
Cross references: (1) For the "Uniform Commercial Code", see title 4.
(2) For the legislative declaration in SB 14-213 stating the purpose of, and the provision directing legislative staff agencies to conduct, a post-enactment review pursuant to § 2-2-1201 scheduled in 2019, see sections 1 and 6 of chapter 344, Session Laws of Colorado 2014. To obtain a copy of the review, once completed, go to "Legislative Resources and Requirements" on the Colorado General Assembly's website.
ANNOTATION
Law reviews. For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For article, "Colorado Criminal Procedure -- Does It Meet the Minimum Standards?", see 28 Dicta 14 (1951). For comment on Bustamante v. District Court, see 31 Rocky Mt. L. Rev. 235 (1959). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982).
Annotator's note. Since § 16-5-401 is similar to repealed § 39-1-3, CRS 53, CSA, C. 48, § 446, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
There is no ex post facto violation where the legislature extends the statute of limitations period for prosecutions not yet time-barred as of the date of the extension. When the general assembly enacted subsection (8)(a.5) in July 2001 and extended the statute of limitations indefinitely for sexual assaults committed after July 1, 1991, that meet the identity and reporting criteria of subsection (8)(a.5), prosecution of the charges against defendant was not yet time-barred. People v. Hicks, 262 P.3d 916 (Colo. App. 2011).
Civil and criminal statutes of limitation distinguished. Statutes of limitation in criminal cases create a bar to the prosecution, while in civil cases they are merely statutes of repose. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
Section limits power of courts to proceed. In criminal cases the state has declared it will not prosecute crimes after the period has run, hence has limited the power of the courts to proceed in the matter as an indictment or information which shows on its face that the prosecution of the offense charged is barred by limitations. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
The phrase "discovery of the criminal act" means the point at which the victim or the state knew or through the exercise of reasonable diligence should have known of the facts establishing the elements of the crime at issue. People v. Cito, 2012 COA 221 , 310 P.3d 256.
The time within which an offense is committed is a jurisdictional fact in all cases subject to limitation. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
Thus, indictment must allege offense within limitation or exceptions. The act averred in an indictment must appear to have been committed within the period prescribed by the statute of limitations or it is necessary to allege the exception that relieves it from the bar of the statute of limitations, such as that a defendant was a fugitive from justice during all or a part of the period of limitation. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
Exceptions in the statute must be negatived by the people in an indictment. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
Otherwise the application of this section is automatic whether the crime be a felony or a misdemeanor. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
And denies jurisdiction to prosecute offense not within period limited. The statute of limitations in a criminal case is not merely a defense that may be asserted at a trial as in civil matters, but denies jurisdiction to proceed to prosecute an offense not committed within the period limited. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958), overruling Packer v. People, 26 Colo. 306 , 57 P. 1087 (1899), Wentzel v. People, 55 Colo. 33 , 133 P. 415 (1913), and Thorp v. People, 110 Colo. 7 , 129 P.2d 296 (1942).
Where a misdemeanor indictment contains no allegation of a specific offense committed within 18 months of the day the indictment was filed, a trial court has no jurisdiction to try a defendant on the charge set forth therein. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958), overruling Packer v. People, 26 Colo. 306 , 57 P. 1087 (1899), Wentzel v. People, 55 Colo. 33 , 133 P. 415 (1913), and Thorp v. People, 110 Colo. 7 , 129 P.2d 296 (1942).
Indictment which fails to allege any date upon which the alleged offense was committed does not confer jurisdiction upon the trial court to consider the case. People v. Thimmes, 643 P.2d 780 (Colo. App. 1981).
When a crime is a continuing offense that is perpetrated over time, the crime continues, and the statute of limitations does not begin to run, as long as the illegal conduct continues. People v. Zuniga, 80 P.3d 965 (Colo. App. 2003).
A crime will not be considered a continuing offense unless the language of the substantive criminal statute compels such a conclusion or the nature of the crime involved is such that the legislature must surely have intended that it be treated as a continuing one. People v. Zuniga, 80 P.3d 965 (Colo. App. 2003).
The theft of money was not complete until defendant cashed the unemployment check, therefore the statute of limitations did not begin to run until said date. Issuance of the unemployment check at an earlier date did not initiate the running of the statute of limitations because the "last act" constituting theft was negotiation of the check. People v. Chavez, 952 P.2d 828 (Colo. App. 1997).
The statute of limitations is a matter of defense. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
The bar of this section may be raised at any time, before or after judgment. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
This section is clear, and if a defendant can bring himself under its protective cloak, he may assert his right at any time and in any manner. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
It may be raised by plea of not guilty or by motion to dismiss for lack of jurisdiction. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
Defendant may plead this section specially or meet the question by evidence under the general issue. Dill v. People, 94 Colo. 230 , 29 P.2d 1035 (1934).
And defendant is not required to go to trial. Where prosecution of a criminal case appears upon the face of an indictment to be barred by the statute of limitations, a defendant is not required to proceed to trial and urge the statute as a defense. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
A case barred from prosecution by a statute of limitation cannot be revived by subsequent legislation that acts to extend the limitation period. People v. Sheed, 702 P.2d 267 (Colo. 1985).
Because felony charges against juvenile were not filed in a court of competent jurisdiction until after statute of limitations had run, the tolling provision of subsection (3) does not affect the charges, and district court properly determined that it lacked jurisdiction based upon the statute of limitations. People v. Ware, 39 P.3d 1277 (Colo. App. 2001).
Applicability of subsections (6) and (7). Based upon the specific and explicit indication of legislative intent in § 16-5-401.1, subsections (6) and (7) apply to the prosecution of offenses not already time-barred as of July 1, 1982. People v. Holland, 708 P.2d 119 (Colo. 1985).
This 1982 amendment is clear on its face and its clear intent was that it apply to prosecutions not already time barred. Holland v. District Court, 831 F.2d 940 (10th Cir. 1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1271, 99 L. Ed. 2d 482 (1988).
The 1982 amendment extending the statute of limitations from a three-year period to a seven-year period for the offense of sexual assault on a child applies to all offenses which are not time-barred as of the effective date of the amendatory legislation. People v. Whitesell, 729 P.2d 985 (Colo. 1986).
Statute of limitations as amended in 2002 did not bar defendant's prosecution for charge of sexual assault on a child by one in a position of trust since the effective date clause of the 2002 bill amending the statute did not conflict with the bill's substantive amendments. People v. Boston, 214 P.3d 507 (Colo. App. 2009), overruled in People v. Summers, 208 P.3d 251 ( Colo. 2009 ).
Flat 10-year statute of limitations applies to felony sex offenses allegedly committed against children pursuant to § 18-3-411 before June 3, 2002, due to an ambiguity created in the act enacting the 2002 amendments to § 18-3-411 . The general statutory construction rule of lenity requires that ambiguity in the meaning of a criminal statute must be interpreted in favor of the defendant. Thus, effective date section of the 2002 legislation amending § 18-3-411 and stating that the act applies to offenses committed on or after passage of the act (June 3, 2002) is controlling despite July 1, 1992 date set forth in the substantive provisions of the statute. People v. Summers, 208 P.3d 251 ( Colo. 2009 ) (decided based upon § 18-3-411 as it existed at the time the alleged crimes were committed prior to 2006 amendments) (overruling People v. Boston, 214 P.3d 507 (Colo. App. 2009)).
A defendant is absent from the state for statute of limitations purposes when he or she has been transferred by the department of corrections (DOC) to an out-of-state facility to serve out the remainder of a state sentence. People v. Butler, 2017 COA 117 , 431 P.3d 643.
Applicable limitations period tolled while defendant was incarcerated by DOC in another state. Even though defendant was sent out of state by the DOC and the DOC maintained jurisdiction over him while he was in another state, he was, nonetheless, "absent" from the state. The general assembly did not include in subsection (2) language contemplating a defendant's reason for being out of the state, nor whether the defendant was out of the state voluntarily. People v. Butler, 2017 COA 117 , 431 P.3d 643.
Subsection (8)(a.5) eliminates the statute of limitations for prosecution of sexual assaults committed after July 1, 1991, where the defendant's identity is determined in whole or in part by his or her DNA and the offense was reported to a law enforcement agency within 10 years after the commission of the offense. The 10-year statute of limitations in subsection (8)(a) remains in effect for any sexual assault committed between July 1, 1984, and July 1, 1991, and for sexual assaults committed after July 1, 1991, that do not satisfy the statutory criteria in subsection (8)(a.5). People v. Hicks, 262 P.3d 916 (Colo. App. 2011).
Subsection (8)(a.5) does not require that the victim be the person who reported the offense to a law enforcement agency. People v. Shores, 2016 COA 129 , 412 P.3d 894.
Subsection (8)(a.5) applies when DNA evidence plays some role in establishing a defendant's participation in a sexual assault. It is not limited to just when DNA evidence "determines" the defendant's identity. The fact that defendant was considered a suspect before the DNA results does limit the application of subsection (8)(a.5). People v. Sims, 2019 COA 66 , 457 P.3d 719.
Manner of proof. When the bar of the statute of limitations is raised by a plea of not guilty, proof must be made by the state showing that its right to prosecute and punish for the offense alleged is not barred. Where the state's own indictment makes the time element material there is no need of further proof. It then is merely the duty of a trial court to apply the statute and quash the indictment. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
Prohibition is proper remedy. Where a trial court is without jurisdiction to try defendant under an indictment showing on its face that prosecution is barred by the statute of limitations, prohibition is the proper remedy for relief. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
Section applies to offenses relating to banks. Offenses denounced by § 11-11-102, relating to receipt of deposits during insolvency by banks, are felonies within the three-year limitation of this section. People v. Godding, 55 Colo. 579, 136 P. 1011 (1913).
Section also applies where felony is charged and lesser offense is proved. Where a criminal information charges grand larceny, that will not prevent the operation of this section where the offense upon conviction proves to be of a lesser grade, prosecution for which is barred by the statute. Drott v. People, 71 Colo. 383, 206 P. 797 (1922).
Defendant's request for a lesser offense instruction constituted a waiver of the statute of limitations. Subsection (12) creates an exception to the applicable statute of limitations where the defendant has requested a lesser included or nonincluded offense. People v. Lowry, 160 P.3d 396 (Colo. App. 2007).
Under subsection (12), a plea of guilty to facilitate the disposition of a case constitutes a waiver of the statute of limitations. Defendant waived her right to raise the statute of limitations as a defense to the amount of restitution ordered. People v. Wilson, 251 P.3d 507 (Colo. App. 2010); People ex rel. K.W., 2012 COA 151 , 317 P.3d 1237.
Subsection (12) applies when the prosecution agreed to allow a juvenile defendant to participate in a diversion program as an alternative to prosecuting a petition for delinquency, because the diversion program was offered as an alternative to "facilitate the disposition of the case". People ex rel. K.W., 2012 COA 151 , 317 P.3d 1237.
Section also applies to complaints. The statute of limitations governing criminal offenses classed as misdemeanors makes specific use of the words "indictment", "information", and "complaint". People v. Read, 132 Colo. 390 , 288 P.2d 347 (1955).
"Complaint" for purposes of this section includes a felony complaint that has been filed in a county court to commence felony criminal proceedings. Higgins v. People, 868 P.2d 371 (Colo. 1994).
Indictment charging embezzlement of public money defective. Where an indictment makes a blanket charge of embezzlement of public money averring two dates, one of which is so remote as to be barred by the statute, it is defective. Bustamante v. District Court, 138 Colo. 97 , 329 P.2d 1013 (1958).
In rape cases the complaint must state a specific date or time when it is alleged the transaction occurred. The district attorney may select any act upon which he will rely for a conviction, within the period prescribed in this section for felonies. Laycock v. People, 66 Colo. 441, 182 P. 880 (1919).
In a prosecution for rape where all the acts proved were within the statute of limitation, the prosecution had the right to select from among them that upon which it would rely for conviction; and in the absence of any express election from the record it will be presumed that the prosecution elected to stand by the offense it first introduced evidence to establish; and that evidence of other acts was not introduced to prove substantive offenses, but in corroboration and explanation of the evidence of the act charged. Mitchell v. People, 24 Colo. 532, 52 P. 67 (1898); Abbott v. People, 89 Colo. 121, 299 P. 1053 (1931).
Evidence of acts barred by the statute is inadmissible. In a prosecution for rape it was error to admit evidence of other acts of sexual intercourse that were barred by the statute of limitation. Bigcraft v. People, 30 Colo. 298, 70 P. 417 (1902).
It is error to permit the defendant to be cross-examined, over objection, as to alleged illicit relations with the prosecuting witness occurring more than three years prior to the filing of the information. Curtis v. People, 72 Colo. 350, 211 P. 381 (1922).
In a prosecution for rape evidence of other acts of sexual intercourse with the prosecuting witness, committed within the period of the statute of limitations, is clearly admissible. Schuette v. People, 33 Colo. 325, 80 P. 890 (1905).
And its admission is reversible error. Abbott v. People, 89 Colo. 121, 299 P. 1053 (1931).
Special verdict unnecessary. Special verdict on a plea in bar, based upon the running of the statute of limitations, is not necessary where the issue is presented to the jury under the general issue without objection. Dill v. People, 94 Colo. 230 , 29 P.2d 1035 (1934).
When jury instruction on limitation period proper. Instructing the jury that they can find the defendant guilty of sexual assault on a child if they find that the evidence shows that the crime has occurred at any time within three years prior to the filing of the information is proper if evidence of only one transaction is admitted and there is some question as to the date of the incident. People v. Estorga, 200 Colo. 78 , 612 P.2d 520 (1980).
Amendment of information at close of evidence was permissible where amendment related to acts occurring within the statutory limitation period, date of offense was neither a material element nor an issue at trial, and the amendment did not involve an altered accusation or require a different defense strategy from the one defendant had chosen under the initial information. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).
The statute of limitations set forth in § 13-80-102, and not that in this section, applies to a theft claim brought under § 18-4-405. Michaelson v. Michaelson, 923 P.2d 237 (Colo. App. 1995).
General assembly intended the discovery tolling provision of the statute of limitations to be applicable to theft committed against at-risk adults. Theft against an at-risk adult enhances a general theft crime. Accordingly, it is immaterial that the discovery tolling provision does not expressly include or exclude thefts committed against at-risk adults. People v. McKinney, 99 P.3d 1038 (Colo. 2004).
Because the discovery tolling provision of the statute of limitations, subsection (4.5)(c), applies to general theft, it also includes theft from an at-risk adult, which is an enhanced form of general theft. Accordingly, the period within which a prosecution for theft against an at-risk adult must be commenced does not begin to run until the time the victim discovers the criminal act. People v. McKinney, 99 P.3d 1038 (Colo. 2004).
Applied in People v. Bowen, 658 P.2d 269 (Colo. App. 1982); People v. Green, 658 P.2d 281 ( Colo. 1983 ).
16-5-401.1. Legislative intent in enacting section 16-5-401 (6) and (7).
- The intent of the general assembly in enacting section 16-5-401 (6) and (7) in 1982 was to create a ten-year statute of limitations as to offenses and delinquent acts specified in said subsections committed on or after July 1, 1979.
- (Deleted by amendment, L. 94, p. 1050 , § 4, effective July 1, 1994.)
Source: L. 85: Entire section added, p. 616, § 6, effective June 2. L. 87: Entire section amended, p. 619, § 2, effective July 1. L. 94: Entire section amended, p. 1050, § 4, effective July 1. L. 2001: (1) amended, p. 734, § 3, effective July 1.
ANNOTATION
Effect of section. While subsequent legislative declarations concerning the intent of an earlier statute are not controlling, they are entitled to significant weight. People v. Holland, 708 P.2d 119 ( Colo. 1985 ); People v. Midgley, 714 P.2d 902 ( Colo. 1986 ).
This section was unnecessary to clarify intent since the 1982 amendment to § 16-5-401 was clear on its face. Holland v. District Court, 831 F.2d 940 (10th Cir. 1987), cert. denied, 485 U.S. 977, 108 S. Ct. 1271, 99 L. Ed. 2d 482 (1988).
16-5-402. Limitation for collateral attack upon trial judgment - definitions.
-
Except as otherwise provided in subsection (2) of this section, no person who has been convicted as an adult or who has been adjudicated as a juvenile under a criminal statute of this or any other state of the United States shall collaterally attack the validity of that conviction or adjudication unless such attack is commenced within the applicable time period, as provided in this subsection (1), following the date of said conviction, or for purposes of juvenile adjudication the applicable time period will begin at the time of the juvenile's eighteenth birthday:
(1.5) If an appellate court can determine on the face of the motion, files, and record in a case that a collateral attack is outside the time limits specified in subsection (1) of this section, the appellate court may deny relief on that basis, regardless of whether the issue of timeliness was raised in the trial court.
-
In recognition of the difficulties attending the litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders, the only exceptions to the time limitations specified in subsection (1) of this section are:
- A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the subject matter of the alleged offense;
- A case in which the court entering judgment of conviction or entering adjudication did not have jurisdiction over the person of the defendant or juvenile;
- Where the court hearing the collateral attack finds by a preponderance of the evidence that the failure to seek relief within the applicable time period was caused by an adjudication of incompetence or by commitment of the defendant or juvenile to an institution for treatment as a person with a mental health disorder; or
- Where the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.
- Repealed.
-
For purposes of this section:
- "Adjudication", except as used in paragraph (c) of subsection (2) of this section, includes "adjudicated" and has the same meaning as defined in section 19-1-103 (2), C.R.S.
- "Juvenile" means a child as defined in section 19-1-103 (18), C.R.S.
All class 1 felonies: No limit All other felonies: Three years Misdemeanors: Eighteen months Petty offenses: Six months
Source: L. 81: Entire section added, p. 926, § 3, effective July 1. L. 84: (2)(b) and (2)(c) amended and (2)(d) added, p. 486, § 1, effective February 6. L. 98: (1.5) added, p. 948, § 10, effective May 27. L. 2001: Entire section amended, p. 734, § 4, effective July 1. L. 2002: (4)(b) amended, p. 1016, § 17, effective June 1; (3) repealed, p. 761, § 11, effective July 1. L. 2006: (2)(c) amended, p. 1397, § 41, effective August 7. L. 2018: IP(2) and (2)(c) amended, (SB 18-091), ch. 35, p. 384, § 14, effective August 8.
Cross references: (1) For collateral attacks upon convictions of traffic infractions, see § 42-4-1708 (5); for collateral attacks upon convictions of alcohol- or drug-related traffic offenses, see § 42-4-1702.
(2) For the legislative declaration in SB 18-091, see section 1 of chapter 35, Session Laws of Colorado 2018.
ANNOTATION
Law reviews. For article, "Attacking Prior Convictions in Habitual Criminal Cases: Avoiding the Third Strike", see 11 Colo. Law. 1225 (1982). For article, "Colorado's Revived Collateral Attack Statute", see 19 Colo. Law. 843 (1990).
Convictions which occurred prior to 1972 are included within the statutory limitations. People v. Padilla, 878 P.2d 4 (Colo. App. 1993), rev'd on other grounds, 907 P.2d 601 ( Colo. 1995 ).
Expiration of time period in subsection (1) was not intended to divest the trial court of subject matter jurisdiction to consider defendant's contentions. People v. Shackelford, 851 P.2d 218 (Colo. App. 1992).
The purpose of the limitations period in this section is to alleviate the difficulties attending litigation of stale claims and the potential for frustrating various statutory provisions directed at repeat offenders, former offenders, and habitual offenders. People v. Merchant, 983 P.2d 108 (Colo. App. 1999); Robbins v. People, 107 P.3d 384 ( Colo. 2005 ).
Prosecution must assert the time bar in trial court. Section does not automatically divest trial court of jurisdiction to hear defendant's contentions. People v. Shackelford, 851 P.2d 218 (Colo. App. 1992).
State waived time bar to Crim. P. 35(b) motion by not raising it in trial court. People v. St. John, 934 P.2d 865 (Colo. App. 1996).
The time limits in subsection (1) are specifically categorized by level of offense, so, in a case in which defendant is convicted of a class 1 felony and other felonies, the time limit for the class 1 felony does not control the time limit for all of the convictions that are not class 1 felonies. Defendant's challenges to the non-class 1 felonies in a Crim. P. 35(c) motion were subject to the three-year statute of limitations. People v. Stovall, 2012 COA 7 M, 284 P.3d 151.
The subsection (1) limitation period is not tolled during the litigation of a postconviction relief motion. People v. Clouse, 74 P.3d 336 (Colo. App. 2002).
Neither the timely commencement of a collateral attack, nor the pendency of an appeal from the denial of Crim. P. 35(c) relief, tolls the limitation period with respect to later asserted postconviction claims. People v. Clouse, 74 P.3d 336 (Colo. App. 2002); People v. Silva, 131 P.3d 1082 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 156 P.3d 1164 ( Colo. 2007 ).
A hand-written letter that does not assert any claims for defendant's Crim. P. 35(c) motion does not toll the time limit in this section. People v. Stovall, 2012 COA 7 M, 284 P.3d 151.
Section 13-81-103 (1)(a) does not toll the statute of limitations set forth in subsection (1) of this section for collateral attacks on convictions based on competency because subsection (2) of this section identifies the only exceptions to the time limitations in subsection (1); subsection (2) includes a competency-related exception that does not mirror § 13-81-103 ; this section was enacted after § 13-81-103 ; and this section applies specifically to collateral attacks on convictions while § 13-81-103 applies generally. People v. Worosello, 2019 COA 166 , __ P.3d __.
A late Crim. P. 35(c) motion may still be considered if a defendant can establish justifiable excuse or excusable neglect. Silva v. People, 156 P.3d 1164 (Colo. 2007).
When an illegal sentence is corrected pursuant to Crim. P. 35(a), it renews the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c). Leyva v. People, 184 P.3d 48 (Colo. 2008).
When original judgment of conviction contains an illegal sentence on one count, the entire sentence is illegal. Leyva v. People, 184 P.3d 48 (Colo. 2008).
The sentence is therefore subject to correction, and the judgment of conviction is subject to amendment, making the judgment of conviction not final or fully valid. Leyva v. People, 184 P.3d 48 (Colo. 2008).
When original judgment of conviction contains an illegal sentence on one count, the entire sentence is illegal. Leyva v. People, 184 P.3d 48 (Colo. 2008).
The sentence is therefore subject to correction and the judgment of conviction is subject to amendment, making the judgment of conviction not final or fully valid. Leyva v. People, 184 P.3d 48 (Colo. 2008).
Defendant bears the burden of establishing the existence of justifiable excuse or excusable neglect and must allege facts which, if proven, would carry that burden. Absent such allegations, he is not entitled to a hearing on the applicability of the time bar. People v. Abad, 962 P.2d 290 (Colo. App. 1997); People v. White, 981 P.2d 624 (Colo. App. 1998).
There is no authority for the proposition that a habeas corpus action in federal court affects either the finality of a judgment entered at the conclusion of a criminal appeal in the state courts or the jurisdiction of the state courts to entertain a collateral challenge to the conviction. People v. Abad, 962 P.2d 290 (Colo. App. 1997).
When a trial court fails to consider the factors that could establish excusable neglect, remand for further proceedings is appropriate. People v. Kadell, 2017 COA 124 , 411 P.3d 281.
Ignorance of time bar itself does not constitute justifiable excuse or excusable neglect. People v. White, 981 P.2d 624 (Colo. App. 1998).
The lack of legal assistance does not constitute justifiable excuse or excusable neglect. Nor does the defendant's limited statutory right to post-conviction counsel include the right to have counsel appointed for the purpose of establishing justifiable excuse or excusable neglect unless some factually sufficient grounds to support that assertion are appropriately alleged. People v. White, 981 P.2d 624 (Colo. App. 1998).
An exception to the time limit in subsection (1), for bringing post-conviction motions under Crim. P. 35(c), exists if a defendant demonstrates that the failure to seek timely relief was the result of justifiable excuse or excusable neglect. People v. Green, 36 P.3d 125 (Colo. App. 2001).
Counsel's affirmative and erroneous advice about the immigration consequences of a defendant's plea may constitute justifiable excuse or excusable neglect for failure to pursue timely collateral relief, and therefore merits a hearing. If a trial court finds that justifiable excuse or excusable neglect exists for a late filing, then the trial court should determine the merits of the defendant's section (c) motion. People v. Martinez-Huerta, 2015 COA 69 , 363 P.3d 754.
Standard for holding a hearing is whether the facts alleged, if true, would constitute justifiable excuse or justifiable neglect. People v. Chavez-Torres, 2019 CO 59, 442 P.3d 843. But see People v. Alvarado Hinojos, 2019 CO 60, 444 P.3d 755.
Allegation that counsel failed to advise defendant of immigration consequences of plea, in conjunction with the plea agreement and plea hearing transcript that failed to mention immigration consequences, would constitute justifiable excuse or justifiable neglect entitling defendant to a hearing. People v. Chavez-Torres, 2016 COA 169 M, 410 P.3d 690, aff'd, 2019 CO 59, 442 P.3d 843.
There is no express implication that the equitable doctrine of laches was abrogated by the enactment of this section. Robbins v. People, 107 P.3d 384 (Colo. 2005).
The doctrine of laches is applicable to persons convicted of class one felonies. The absence of a limitations period for class one felonies in subsection (1) is because the general assembly determined that it would be inappropriate to establish a fixed period for post-conviction motions for the most serious offenses. Such a legislative determination does not manifest a clear intent to deprive courts of their preexisting ability to apply the doctrine of laches to class one felony cases. Trial courts may continue to assess individually whether equitable considerations should preclude post-conviction relief when a defendant has been convicted of a class one felony. People v. Robbins, 87 P.3d 120 (Colo. App. 2003), aff'd, 107 P.3d 384 ( Colo. 2005 ).
The doctrine of laches should apply in the analysis when a Crim. P. 35(c) claim is timely filed within statutory limits but not subsequently timely pursued. Crim. P. 35(c) provides a postconviction remedy grounded in equitable principles, and under certain circumstances, laches may work to bar defendant's claim for relief where this section would not. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).
Trial court was correct to consider whether postconviction counsel's conduct constituted justifiable excuse or excusable neglect and may therefore provide an exception to the operation of the doctrine of laches. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).
Detrimental reliance, unlike prejudice, is not an element of laches. Prosecution was prejudiced by defendant's delay in filing postconviction motion and was not required to show that it detrimentally relied on defendant's failure to file a postconviction motion within a reasonable time. People v. Lanari, 2014 COA 73 , 410 P.3d 516.
This section violates due process of law under the federal and state constitutions because it precludes collateral challenges to the constitutional admissibility of prior convictions in pending prosecutions solely on the basis of a time bar, without providing the defendant an opportunity to show that the failure to assert a timely constitutional challenge was the result of circumstances amounting to justifiable excuse or excusable neglect. People v. Leonard, 673 P.2d 37 ( Colo. 1983 ); People v. Dugger, 673 P.2d 351 ( Colo. 1983 ); People v. Germany, 674 P.2d 345 (Colo. 1983) (all decisions decided prior to enactment of subsection (2)(d) in 1984).
Constitutionality. The construction that this section applies to postconviction challenges to criminal convictions under Crim. P. 35(c) does not violate the constitutional protections of habeas corpus, separation of powers, due process, or equal protection of the laws. People v. Wiedemer, 852 P.2d 424 ( Colo. 1993 ); People v. Wiedemer, 852 P.2d 449 ( Colo. 1993 ); People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993).
The application of this section to bar a motion to challenge a prior conviction in an unrelated proceeding does not violate the constitution. The justifiable excuse or excusable neglect exception in subsection (2)(d) provides a defendant with a meaningful opportunity to challenge allegedly unconstitutional convictions. People v. Deskins, 904 P.2d 1358 (Colo. App. 1995), aff'd in part and rev'd in part on other grounds, 927 P.2d 368 ( Colo. 1996 ).
Defendant lacks standing to challenge constitutionality of § 16-5-402 based on the argument that subsection (3) violates due process because subsection (3) is severable from the other provisions of this section that are directly implicated, subsection (3) has no application to the present proceeding, and the defendant failed to show he is effected by the alleged unconstitutionality of subsection (3). It is best to defer validity of subsection (3) until the issue is presented by one whose rights are affected and who has an interest in challenging the statute. People v. Heitzman, 852 P.2d 443 (Colo. 1993).
Subsection (3) is unconstitutional. People v. Thomas, 867 P.2d 880 (Colo. 1994).
Holding in Thomas case could have been anticipated by any reasonable person from holding in People v. Germany, 674 P.2d 345 ( Colo. 1983 ), and thus Crim. P. 35(c) motion was time-barred. People v. Collins, 8 P.3d 520 (Colo. App. 2000).
Five-year grace period from the effective date of this section on July 1, 1984, was implied for person seeking to challenge a constitutionally flawed conviction under § 18-1-410 , where conviction predated the length of time specified as a limitation period under this section. People v. Fagerholm, 768 P.2d 689 ( Colo. 1989 ); People v. Stephens, 837 P.2d 231 (Colo. App. 1992), cert. dismissed, 854 P.2d 231 ( Colo. 1993 ).
However, for the five-year grace period to apply, a conviction must antedate July 1, 1984, the effective date of this section, by an interval of time in excess of the limitations set forth in this section. People v. Brack, 796 P.2d 49 (Colo. App. 1990).
Only convictions occurring after July 1, 1984, the effective date of this section, are unaffected by the five-year grace period. People v. Janke, 895 P.2d 1102 (Colo. App. 1994).
Judicially created five-year grace period under this section does not give notice that same five-year grace period applies to collateral attacks brought under § 42-4-1501.5. People v. Trimble, 839 P.2d 1168 (Colo. 1992).
The U.S. supreme court decision in Custis v. U.S., 511 U.S. 485 (1994), does not require a state court to consider a collateral attack on a state court conviction used to enhance a sentence in federal court when the state court conviction was outside of the five-year grace period. People v. Vigil, 955 P.2d 589 (Colo. App. 1997).
Present need standard for postconviction relief not established under collateral attack statute for 30-year-old conviction for violations of municipal ordinances. City & County of Denver v. Rhinehart, 742 P.2d 948 (Colo. App. 1987).
Present need challenge not available. People v. Robinson, 833 P.2d 832 (Colo. App. 1992).
Statute of limitations set forth in this section does not bar the filing of a Crim. P. 35(c) motion by a defendant convicted of first degree murder, a class 1 felony. Duran v. Price, 868 P.2d 375 (Colo. 1994).
Term "collateral attack" includes challenge to a conviction in a suppression hearing in another criminal proceeding. People v. Fultz, 761 P.2d 242 (Colo. App. 1988).
"Collateral attack" as used in this section includes relief sought pursuant to Crim. P. 35. People v. Robinson, 833 P.2d 832 (Colo. App. 1992); People v. Hampton, 857 P.2d 441 (Colo. App. 1992); People v. Wiedemer, 852 P.2d 424 ( Colo. 1993 ); People v. Wiedemer, 852 P.2d 449 ( Colo. 1993 ).
Term "collateral attack" includes relief sought pursuant to Crim. P. 35. Although a distinction exists between collateral attacks and other types of postconviction relief, a successful attack under Crim. P. 35 results in vacation of the conviction at issue and therefore comes within the commonly accepted meaning of "collateral" in the criminal-law context. People v. Robinson, 833 P.2d 832 (Colo. App. 1992); People v. Wiedemer, 852 P.2d 424 ( Colo. 1993 ); People v. Wiedemer, 852 P.2d 449 ( Colo. 1993 ).
Motions under Crim. P. 35(c) are subject to the time bar of this section. People v. Wiedemer, 852 P.2d 424 ( Colo. 1993 ); People v. Vigil, 983 P.2d 805 (Colo. App. 1999).
To give effect to the legislative intent expressed clearly in subsection (2), a more expansive definition of "collateral attack" is necessary. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).
Reference to collateral attacks in this section was intended to include Crim. P. 35(c) motions that seek directly to set aside a judgment in the same court in which it was obtained as well as motions to suppress convictions in a proceeding where the convictions serve a purpose such as establishing a predicate offense for some other charge. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).
Time bar in this section applies to requests for post-conviction relief under both § 18-1-410 (1)(b) and Crim. P. 35 (c)(2)(II) where defendant's motion is a collateral attack. People v. Vigil, 983 P.2d 805 (Colo. App. 1999).
The limitation period cannot commence until there is a right to pursue a collateral attack. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).
Time bar in this section does not apply to a defendant's Crim. P. 32(d) motion. This section imposes time limitations for commencing collateral attacks on judgments of conviction, but a motion to withdraw a guilty plea under Crim. P. 32(d) is not a collateral attack on a judgment of conviction because no judgment of conviction was ever entered. People v. Corrales-Castro, 2015 COA 34 M, 412 P.3d 701, rev'd on other grounds, 2017 CO 60, 395 P.3d 778.
Defendant's motion alleging a violation of § 16-14-102(3) was time-barred under this section because it did not allege a jurisdictional defect. While violation of § 16-14-102 (3) would have entitled the defendant to dismissal of the charges, regardless of whether he suffered any prejudice, it did not deprive the court of jurisdiction. Therefore, the trial court properly dismissed defendant's motion as untimely under this section. People v. Slusher, 43 P.3d 647 (Colo. App. 2001).
Collateral attacks on infirmities related to the adjudication of habitual criminality correctly considered under this section. People v. Hampton, 876 P.2d 1236 (Colo. 1994).
Timely collateral attack, not completely adjudicated, upon a previous conviction does not toll the limitations period of this section and allow future attacks upon that same conviction regardless of when such later attacks are filed. People v. Merchant, 983 P.2d 108 (Colo. App. 1999).
Rule of lenity does not apply as the intention of the legislature is expressed with sufficient clarity. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).
Time limitations in this section are supplementary to and not in conflict with § 18-1-410 and are intended to apply to all forms of post conviction attacks on judgments. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).
Irreconcilable conflict exists between this section and § 18-1-410, and this section prevails as it is the later enacted statute. People v. Heitzman, 852 P.2d 443 (Colo. 1993).
Statutory limitations in this section do not usurp the supreme court's rule-making authority. While the statute has an incidental effect on judicial procedure, it is primarily an expression of public policy, and therefore it prevails over terms of Crim. P. 35(c)(3) stating that motion may be filed "at any time". People v. Robinson, 833 P.2d 832 (Colo. App. 1992).
Evaluate the applicability of the justifiable excuse or excusable neglect exception by balancing the interests under the facts of a particular case to give effect to the overriding concern that a defendant have the meaningful opportunity required by due process to challenge his conviction. People v. Wiedemer, 852 P.2d 424 ( Colo. 1993 ); People v. Wiedemer, 852 P.2d 449 ( Colo. 1993 ); People v. Shepherd, 43 P.3d 693 (Colo. App. 2001).
In determining if the justifiable excuse or excusable neglect exception applies, consider the following: (1) Circumstances existing throughout the entire period from the inception of the conviction in question; (2) Relative strengths of various interests at stake; (3) Existence of circumstances or outside influences preventing a challenge to a prior conviction; (4) Extent to which a defendant having reason to question the constitutionality of a conviction investigates its validity and takes advantage of avenues of relief available to him; (5) Whether the defendant had any previous need to challenge a conviction; (6) Whether the defendant either knew that it was constitutionally infirm or had reason to question its validity; (7) Whether the defendant had other means of preventing the government's use of the conviction so that a postconviction challenge was previously unnecessary; and (8) Extent of time between the date of conviction and the defendant's challenge and the effect that the passage of time has on the state's ability to defend against the challenge. People v. Wiedemer, 852 P.2d 424 ( Colo. 1993 ); People v. Wiedemer, 852 P.2d 449 ( Colo. 1993 ); People v. Shepherd, 43 P.3d 693 (Colo. App. 2001).
The length of time defendant waited to file a Crim. P. 35(c) motion after learning of new information that may support a justifiable excuse or excusable neglect exception is relevant to determining whether such an exception applies. People v. Alvorada Hinojos, 2019 CO 60, 444 P.3d 755.
Whether the defendant qualifies for the exception under subsection (2)(d) is a question of fact to ordinarily be resolved by the trial court. People v. Wiedemer, 852 P.2d 424 ( Colo. 1993 ); People v. Heitzman, 852 P.2d 443 ( Colo. 1993 ); People v. Wiedemer, 852 P.2d 449 (Colo. 1993); People v. Clouse, 74 P.3d 336 (Colo. App. 2002).
The trial court may rely on the plea agreement or the plea hearing transcript in denying a Crim. P. 35(c) motion without a hearing on timeliness grounds even though a defendant is not required to provide evidentiary support for his allegations regarding justifiable excuse or excusable neglect. People v. Alvorada Hinojos, 2019 CO 60, 444 P.3d 755. But see People v. Chavez-Torres, 2019 CO 59, 442 P.3d 843.
Whether a defendant has demonstrated justifiable excuse or excusable neglect is a question of fact to be resolved by the trial court, whose ruling is not to be overturned if the record supports its findings. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002).
Justifiable excuse and excusable neglect exception was adopted for the specific purpose of preventing an unconstitutional result of the statute being applied in a manner that would violate due process of law. People v. Heitzman, 852 P.2d 443 (Colo. 1993).
Implicit in any finding that the statutory exception is not satisfied in a particular case is the conclusion that, acting as a bar to a defendant's claims, the statute is not unconstitutional as applied. People v. Heitzman, 852 P.2d 443 (Colo. 1993).
This section is applicable to postconviction remedies filed pursuant to Crim. P. 35; accordingly, a defendant must be given an opportunity to present evidence of justifiable excuse or excusable neglect when a court raises the time limitation of this section sua sponte. People v. Lanford, 867 P.2d 50 (Colo. App. 1993).
The limitations of this section are applicable to a proportionality review of a sentence imposed pursuant to the habitual criminal statutes. People v. Talley, 934 P.2d 859 (Colo. App. 1996).
Request for proportionality review alleging that sentence violates the eighth amendment to the U.S. constitution is subject to the limitation period set forth in this section. People v. Moore-El, 160 P.3d 393 (Colo. App. 2007).
For the purpose of this section, the word "conviction" includes the recital of the plea, the verdict or findings, the sentence, the finding of the amount of presentence confinement, and costs. People v. Lanford, 867 P.2d 50 (Colo. App. 1993).
Justifiable excuse or excusable neglect. The "excusable neglect" exception to this section cannot be read so broadly that the statutory limitation becomes meaningless. In this instance, the failure to attack the prior conviction within the time period allowed by this section and the grace period was not justified just because the defendant had no present need to attack the conviction until the habitual offender charges were filed. People v. Stephens, 837 P.2d 231 (Colo. App. 1992), cert. dismissed, 854 P.2d 231 ( Colo. 1993 ); People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993).
"Excusable neglect" not found. No excusable neglect existed where defendant claimed he was unable to appeal because he was under the influence of a drug during appeal period, but made no reasonable effort to appeal once free from that influence. People v. Fultz, 761 P.2d 242 (Colo. App. 1988).
Defendant's claim that he had not challenged previous convictions until habitual criminal charges were filed because he had no present need not excusable neglect. People v. Mershon, 844 P.2d 1240 (Colo. App. 1992), aff'd, 874 P.2d 1025 ( Colo. 1994 ); People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993); People v. Penrod, 892 P.2d 383 (Colo. App. 1994).
Defendant's recent discovery of a legal basis for a collateral attack on his conviction based on the provisions of § 16-14-102 did not constitute excusable neglect where he had not otherwise demonstrated some unavoidable hindrance that would have caused a reasonably prudent person to neglect to pursue timely collateral relief. The alleged ineffective assistance of counsel also did not excuse his delay. People v. Slusher, 43 P.3d 647 (Colo. App. 2001).
Lack of funds while incarcerated does not qualify as justifiable excuse or excusable neglect. People v. Merchant, 983 P.2d 108 (Colo. App. 1999).
Defendant's indigence, ignorance of the law, and lack of legal counsel do not amount to justifiable excuse or excusable neglect. Further, the trial court gave no credence to defendant's claim that his counsel failed to advise him of his postconviction rights, since defendant immediately filed a motion to withdraw his plea when a sentence to the department of corrections was imminent. People v. McPherson, 53 P.3d 679 (Colo. App. 2001).
No justifiable excuse or excusable neglect where defendant did not raise a direct appeal or collateral attack of his Virginia conviction until almost 14 years after his conviction had entered. People v. Landis, 9 P.3d 1165 (Colo. App. 2000).
No justifiable excuse or excusable neglect where defendant waited nine years from the date conviction became final to file collateral attack challenging its validity. People v. Jackson, 98 P.3d 940 (Colo. App. 2004).
No justifiable excuse or excusable neglect where defendant asserted he or she could not file a second motion until the first postconviction proceedings were concluded. People v. Silva, 131 P.3d 1082 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 156 P.3d 1164 ( Colo. 2007 ).
No justifiable excuse or excusable neglect where defendant waited to file his Crim. P. 35(c) motion until he could accumulate an "unassailable mass" of research studies. The studies cited by defendant, unapplied academic theories, did not constitute evidence, let alone new evidence, for purposes of his motion. People v. Bonan, 2014 COA 156 , 357 P.3d 231.
No justifiable excuse or excusable neglect when defendant based his claims on ongoing incompetency, disability, and lack of sufficient mental faculties that resulted in a complete inability to process the unconstitutionality of his conviction, leading him not to investigate or timely pursue post-conviction relief, but defendant had multiple competency evaluations and was found competent to proceed both before he entered his plea and before he was sentenced. People v. Worosello, 2019 COA 166 , __ P.3d __.
Defendant's motion was untimely filed with no justifiable excuse, because, even though she commenced her collateral attack with a motion filed within the three-year period, that motion was denied and defendant did not appeal the denial. A subsequent motion, filed after the three-year period, could not be considered as relating back to the original motion. People v. Cummins, 37 P.3d 507 (Colo. App. 2001).
Ineffective assistance of counsel in Crim. P. 35(c) proceedings is colorable grounds for appointment of conflict-free counsel and a trial court hearing on justifiable excuse and excusable neglect. The allegation that postconviction counsel failed to inform the court of the constitutional limitations of defendant's sentence, which in turn resulted in a sentence twice the constitutionally permissible level, is within the standard for measuring ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Close v. People, 180 P.3d 1015 (Colo. 2008).
Justifiable excuse or excusable neglect would be established if the public defender's conflict of interest was the reason for not filing a motion for post-conviction relief on behalf of defendant. People v. Chang, 179 P.3d 240 (Colo. App. 2007).
Justifiable excuse or excusable neglect would be established if the public defender's failure to file a motion for post-conviction relief on behalf of defendant was the result of ineffective counsel. People v. Chang, 179 P.3d 240 (Colo. App. 2007).
Because there is no requirement that appellate counsel advise a defendant of time limitations for seeking postconviction relief, the absence of such advice is not a justifiable excuse for defendant's neglect. People v. Alexander, 129 P.3d 1051 (Colo. App. 2005).
Defendant's misplaced reliance on parole board's interpretation of law concerning parole decisions for sex offenders did not constitute justifiable excuse or excusable neglect to attack conviction outside of three-year period. People v. Perez, 895 P.2d 1090 (Colo. App. 1994).
A defendant's intentional abandonment of claims raised at an earlier proceeding does not amount to justifiable excuse or excusable neglect that would permit a late filing of a postconviction motion. People v. Abeyta, 923 P.2d 318 (Colo. App. 1996).
Ineffective assistance of counsel can constitute justifiable excuse or excusable neglect. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).
Mere failure to challenge a conviction does not establish ineffective assistance of counsel nor constitute excusable neglect or justifiable excuse. People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993); People v. Penrod, 892 P.2d 383 (Colo. App. 1994); People v. Rhorer, 946 P.2d 503 (Colo. App. 1997), rev'd on other grounds, 967 P.2d 147 ( Colo. 1998 ).
As a matter of law, postconviction counsel's seven-year delay in filing a supplemental motion in a challenge that was filed within the time limits prescribed by this section was, in light of all the circumstances, outside the wide range of professionally competent assistance. People v. Valdez, 178 P.3d 1269 (Colo. App. 2007).
It is appropriate for a trial court to raise the issue sua sponte of whether a defendant's motion for post-conviction relief is untimely under this section. People v. Xiong, 940 P.2d 1119 (Colo. App. 1997).
If a defendant's motion for post-conviction relief is untimely, the trial court may deny the motion without conducting a hearing if the defendant has failed to allege facts which, if true, would establish justifiable excuse or excusable neglect. People v. Xiong, 940 P.2d 1119 (Colo. App. 1997).
The timely commencement of a collateral attack fails to toll the limitations period with respect to additional postconviction claims not contained in the timely filed motion. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002).
For purposes of this section and postconviction review, a "conviction" occurs when the trial court enters judgment and sentence is imposed, if there is no appeal; if an appeal is pursued, then the conviction is not final until the appellate process is exhausted. People v. Hampton, 857 P.2d 441 (Colo. App. 1992), aff'd, 876 P.2d 1236 ( Colo. 1994 ); People v. Clouse, 74 P.3d 336 (Colo. App. 2002).
Where a defendant initiates a direct appeal from a conviction, this section's three-year limitations period does not begin to run until the appeal is exhausted; tolling of the period is not warranted during the pendency of an appeal from the denial of a Crim. P. 35(c) motion. People v. Ambos, 51 P.3d 1070 (Colo. App. 2002).
Direct appeal not reinstated extending the time periods of this section. When, under a Crim. P. 35 motion, post-conviction court appoints counsel to pursue any error in the original appeal, it is not reinstating defendant's direct appeal. People v. Shepard, 151 P.3d 580 (Colo. App. 2006).
Resentencing, upon revocation of probation or rejection from community corrections, does not create a new "conviction". The statutory sentencing scheme, under which a defendant who receives probation may subsequently have his or her probation revoked and receive a sentence to community corrections or to the department of corrections, contemplates a system of escalating sentencing alternatives available to the court. Hence, resentencing after a revocation of probation or a rejection from community corrections does not result in the entry of a new judgment of conviction for purposes of this section. People v. McPherson, 53 P.3d 679 (Colo. App. 2001).
The date of conviction for purposes of this section is the date the appeal is exhausted, not the date of the amended mittimus reflecting the reduction of sentence, where a Crim. P. 35(b) motion has been filed and granted after the conclusion of a direct appeal. People v. Metcalf, 979 P.2d 581 (Colo. App. 1999).
The date of resentencing, after defendant violated the conditions of her probation, does not trigger the commencement of a new three-year period for collateral attack. Even though a Crim. P. 35(b) motion was filed within three years after the defendant was sentenced to the department of corrections for violation of her conditions of probation, the motion was untimely because it was filed more than three years after the date the judgment of conviction was entered. People v. Cummins, 37 P.3d 507 (Colo. App. 2001); People v. Collier, 151 P.3d 668 (Colo. App. 2006).
Subsection (1.5) is discretionary and a court may elect to address a defendant's claims on the merits. People v. Kilgore, 992 P.2d 661 (Colo. App. 1999).
Applied in People v. Smith, 856 P.2d 26 (Colo. App. 1992); People v. Vigil, 983 P.2d 805 (Colo. App. 1999); People v. Russell, 36 P.3d 92 (Colo. App. 2001).
PART 5 INCARCERATION
16-5-501. Prosecuting attorney - incarceration - legal representation and supporting services at state expense. (Repealed)
Source: L. 81: Entire part added, p. 928, § 1, September 1. L. 86: Entire section amended, p. 732, § 1, effective July 1. L. 87: Entire section amended, p. 1496, § 5, effective July 1. L. 2002: Entire section amended, p. 1491, § 134, effective October 1. L. 2013: Entire section amended, (SB 13-250), ch. 333, p. 1929, § 41, effective October 1; entire section repealed, (HB 13-1210), ch. 306, p. 1624, § 3, effective January 1, 2014.
ARTICLE 6 CHANGE OF VENUE AND DISQUALIFICATION OF JUDGE
Editor's note: This article was repealed and reenacted in 1972. For historical information concerning the repeal and reenactment, see the editor's note before the article 1 heading.
Section
PART 1 CHANGE OF VENUE
16-6-101. Grounds for change of venue.
-
The place of trial may be changed:
- When a fair trial cannot take place in the county or district in which the trial is pending; or
- When a more expeditious trial may be had by a change in the place of trial from one county to another; or
- When the parties stipulate to a change in the place of trial to another county in the same judicial district or to a county in an adjoining judicial district.
Source: L. 72: R&RE, p. 218, § 1. C.R.S. 1963: § 39-6-101.
Cross references: For the place of trials, see § 18-1-202 and Crim. P. 18.
ANNOTATION
Annotator's note. Since § 16-6-101 is similar to repealed laws antecedent to CSA, C. 170, § 3, relevant cases construing those provisions have been included in the annotations to this section.
The object of this section is to secure to a party charged with crime a fair and impartial trial by a jury in a county uninfluenced by local bias or prejudice. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
To support a request for a change of venue, a defendant must establish one of two circumstances. First the defendant can show that the pretrial publicity is so massive, pervasive, and prejudicial as to create a presumption that the defendant will be denied a fair trial. Alternatively, the defendant can demonstrate that any pretrial publicity will create actual prejudice and hostility in the jury panel. The defendant must show actual prejudice -- a nexus between pretrial publicity and a panel of partial jurors. People v. Hankins, 2014 COA 71 , 361 P.3d 1033.
Pretrial publicity was extensive, but not so massive, pervasive, and prejudicial as to create a presumption that defendant was denied a fair trial. People v. Hankins, 2014 COA 71 , 361 P.3d 1033.
Record did not show actual prejudice. Only one impaneled juror said he had formed an opinion, and he adamantly declared that he could set it aside. People v. Hankins, 2014 COA 71 , 361 P.3d 1033.
The denial of a fair trial may be presumed when pretrial publicity is massive, pervasive, and prejudicial. People v. Simmons, 183 Colo. 253 , 516 P.2d 117 (1973).
Prejudice must exist in all of several attached counties. Where several counties are attached for judicial purposes, a petition for change of venue, founded upon prejudice of the inhabitants must show that such prejudice exists in all of the counties so attached. Fitzgerald v. People, 1 Colo. 56 (1867).
Motion for change of venue properly denied. Motion for change of venue on ground that pretrial publicity made fair trial impossible was properly denied where the voir dire amply demonstrated the absence of prejudice and the ability of the jurors to set aside any opinions that they may have received from the news media. People v. Medina, 185 Colo. 101 , 521 P.2d 1257 (1974).
Trial court did not abuse its discretion in denying the change of venue where the trial court noted that media coverage of the crime was balanced and was not sensational and that some newspaper articles expressed sympathy for the defendant. Further as a result of the court's voir dire examination of the prospective jurors concerning the effect of publicity, jurors who expressed knowledge of the case were either excused for cause or expressed an ability to put aside any opinions they had formed about the case. People v. Dore, 997 P.2d 1214 (Colo. App. 1999).
When juror's assurances of impartiality not conclusive. Where a defendant demonstrates the existence of a pattern of deep and bitter prejudice throughout the community where he is to be tried, a juror's assurance that he will be fair and impartial is not conclusive. People v. Botham, 629 P.2d 589 (Colo. 1981).
16-6-102. Motion for change of venue.
- A motion for change of venue must be accompanied by one or more affidavits setting forth the facts upon which the defendant relies or by a stipulation of the parties.
- Whether circumstances exist requiring, in the interest of justice, a change in the place of trial is a question to be determined by the court in its sound discretion.
Source: L. 72: R&RE, p. 219, § 1. C.R.S. 1963: § 39-6-102.
ANNOTATION
Annotator's note. Since § 16-6-102 is similar to repealed § 39-9-5, C.R.S. 1963, § 39-9-5, CRS 53, CSA, C. 170, § 4, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
This section is mandatory upon the court only when the party applying for change has brought himself within its provisions. Roberts v. People, 9 Colo. 458, 13 P. 630 (1886).
Decision on motion is discretionary. The question of prejudice of inhabitants rests in the discretion of the court. The decision will not be disturbed unless an abuse of discretion appears. Erbaugh v. People, 57 Colo. 48 , 140 P. 188 (1914); People v. Coit, 961 P.2d 524 (Colo. App. 1997).
A second application in the same cause, for change of venue, is addressed to the discretion of the court, and error cannot be assigned upon refusal to grant it. Fitzgerald v. People, 1 Colo. 56 (1867).
The granting or refusal of a motion for change of venue is a matter lodged in the discretion of the trial court and, in the absence of an abuse of such discretion, will not be disturbed. Corbett v. People, 153 Colo. 457 , 387 P.2d 409 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1346, 12 L. Ed. 2d 302 (1964).
A motion for a change of venue due to local prejudice is a matter of judicial discretion. People v. Simmons, 183 Colo. 253 , 516 P.2d 117 (1973).
And decision will not be reversed except where discretion is abused. In passing upon an application for a change of venue on the ground of prejudice of the inhabitants, the trial court should exercise a sound discretion; it is only in case of manifest abuse of such discretion that its decision will be reversed by the supreme court. Power v. People, 17 Colo. 178, 28 P. 1121 (1892).
The finding of the court on a controversy under this section is conclusive on all if he had the right conception of the law, and his conclusions are supported by the evidence or fair deductions therefrom. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Trial court acted within its discretion by only partially granting a motion to change venue by moving the trial to a different county rather than a different judicial district. People v. Coit, 961 P.2d 524 (Colo. App. 1997).
The motion must set forth the ground upon which the venue may be changed, and also the facts which lead to the belief that such ground exists. Solander v. People, 2 Colo. 48 (1873).
Affiant may state grounds of belief that prejudice exists. On motion for change of venue, affiant in a supporting affidavit is entitled to state the grounds of his belief that defendant would not receive a fair trial by reason of prejudice of the inhabitants. Glasson v. Bowen, 84 Colo. 57, 267 P. 1066 (1928).
And facts should be sufficient to inform judge of causes relied on. The law contemplates that upon application for change of venue, facts shall be stated sufficient to inform the judge of the nature of the causes for the change, and their alleged foundation. Hughes v. People, 5 Colo. 436 (1880).
To support a request for a change of venue, a defendant must establish one of two circumstances. First the defendant can show that the pretrial publicity is so massive, pervasive, and prejudicial as to create a presumption that the defendant will be denied a fair trial. Alternatively, the defendant can demonstrate that any pretrial publicity will create actual prejudice and hostility in the jury panel. The defendant must show actual prejudice -- a nexus between pretrial publicity and a panel of partial jurors. People v. Hankins, 2014 COA 71 , 361 P.3d 1033.
Prejudice of the inhabitants presents a question of fact triable by the court. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).
The trial judge necessarily passes upon the question in controversy as a matter of fact. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Attack of denial of motion is by appeal. If appellant desires to attack the validity of the ruling on his motion for change of venue because he could not receive a fair and impartial jury, he should proceed to a jury trial and then appeal if the result returned is unfavorable to him. Brisbin v. Schauer, 176 Colo. 550 , 492 P.2d 835 (1971).
Means to insure fair trial not appellate concern. Regardless of the means imposed by the trial judge to insure the accused's constitutional right to a fair trial by a panel of impartial jurors, the critical inquiry on appellate review is whether the chosen means did in fact preserve the accused's right to a fair trial. People v. Botham, 629 P.2d 589 (Colo. 1981).
Reviewing court may look to voir dire. In determining whether a trial court abuse its discretion in denying a motion for a change of venue because of alleged local prejudice, the reviewing court may quite properly look at what occurred upon voir dire examination of the prospective jurors. Corbett v. People, 153 Colo. 457 , 387 P.2d 409 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1346, 12 L. Ed. 2d 302 (1964).
Insufficient ground for change. The fact that the deceased was a banker and citizen of high standing in the community is not in itself a ground for change of venue in a murder case. Corbett v. People, 153 Colo. 457 , 387 P.2d 409 (1963), cert. denied, 377 U.S. 939, 84 S. Ct. 1346, 12 L. Ed. 2d 302 (1964).
Prejudice of jury moot if defendant elects trial to the court. By electing to try the case to the court, appellant was foreclosed from asserting error in the denial of a change of venue. His contention in presenting his motion for a change of venue was that he could not obtain trial by a fair and impartial jury in the district in which he was proceeding. Nowhere did he complain that he could not obtain a fair trial before the trial judge. Under such circumstances, the issue of whether the change of venue should have been granted became moot. Brisbin v. Schauer, 176 Colo. 550 , 492 P.2d 835 (1971).
No error in failure to grant change of venue. People v. Trujillo, 181 Colo. 350 , 509 P.2d 794 (1973); People v. Simmons, 183 Colo. 253 , 516 P.2d 117 (1973).
Sua sponte change of venue was not error. People v. Wafai, 713 P.2d 1354 (Colo. App. 1985), aff'd, 750 P.2d 37 ( Colo. 1988 ).
Applied in People ex rel. Burke v. District Court, 60 Colo. 1 , 152 P. 149 (1915); People v. Norwood, 37 Colo. App. 157, 547 P.2d 273 (1975).
16-6-103. Change of venue where offense committed in two or more counties.
Where a prosecution has been commenced in one county, the court, for good cause shown, may transfer the proceeding to another county within the same judicial district if it is shown that the offense was committed in more than one county within the same judicial district and if the court is satisfied that the interests of justice would be served by transferring the action to the other county.
Source: L. 72: R&RE, p. 219, § 1. C.R.S. 1963: § 39-6-103.
16-6-103.5. Plea of guilty to offenses committed in two or more counties.
- Any person charged with crimes in more than one county of this state may apply to the district attorney of one of said counties to be charged with all crimes so that he may enter into a disposition and be sentenced for them in that single county. The application shall contain a description of all charged crimes and the name of the county in which each was committed.
- Upon receipt of the application, the district attorney shall prepare an information charging all the charged crimes and naming in each count the county where each was committed. He shall send a copy of the information to the district attorney of each other county in which the defendant stands charged, together with a statement that the defendant has applied to enter into a disposition in the county of application. Upon receipt of the information and statement, the district attorney of the other county may execute a consent in writing allowing the defendant to enter a plea of guilty in the county to which application has been made to the crime charged in the information and committed in the other county and send it to the district attorney who prepared the information.
- If necessary, the district attorney shall amend the information so that it includes only the offenses for which he has received written consent from the district attorney of other counties, and he shall file the information in any court of his county having jurisdiction to try or accept a plea of guilty to the most serious crime alleged therein. The defendant then may enter a plea of guilty to all offenses alleged to have been committed in the county where the court is located and to all offenses alleged to have been committed in other counties as to which consents have been executed pursuant to subsection (2) of this section. Before entering his plea of guilty, the defendant shall waive in writing any right to be tried in the county where the crime was committed. The district attorney of the county where the crime was committed need not be present when the plea is made, but his written consent shall be filed with the court.
- Thereupon the court shall enter such judgment, the same as if all the crimes charged were alleged to have been committed in the county where the court is located, whether or not the court has jurisdiction to try all those crimes to which the defendant has pleaded guilty under this section.
- The clerk of the court in the county where the plea is made shall file a copy of the judgment of conviction with the clerk in each county where a crime covered by the plea was committed. The district attorney in each of said counties shall then move to dismiss any charges covered by the plea of guilty which are pending against the defendant in his county, and the same shall thereupon be dismissed.
Source: L. 87: Entire section added, p. 603, § 3, effective July 1.
16-6-104. Application of rules of criminal procedure.
Except as otherwise provided by sections 16-6-101 to 16-6-103, the filing of an application for change of venue and all proceedings relating thereto are governed by the provisions of applicable rules of criminal procedure adopted by the supreme court of Colorado.
Source: L. 72: R&RE, p. 219, § 1. C.R.S. 1963: § 39-6-104.
PART 2 DISQUALIFICATION OF JUDGE
16-6-201. Disqualification of judge.
-
A judge of a court of record shall be disqualified to hear or try a case if:
- He is related to the defendant or to any attorney of record or attorney otherwise engaged in the case; or
- The offense charged is alleged to have been committed against the person or property of the judge or of some person related to him; or
- He has been of counsel in the case; or
- He is in any way interested or prejudiced with respect to the case, the parties, or counsel.
- Any judge who knows of circumstances which disqualify him in a case shall, on his own motion, disqualify himself.
- A motion for change of judge on any ground must be verified and supported by the affidavits of at least two credible persons not related to the defendant, stating facts showing the existence of grounds for disqualification. If the verified motion and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself. After disqualifying himself, the judge may require a full hearing upon the issues raised by the affidavits and shall request that another judge conduct the hearing. The other judge shall make findings of fact with regard thereto, and such findings shall be included as a part of the trial court record.
- The disqualified judge shall certify the need for a judge to the chief justice of the Colorado supreme court, who shall assign a judge to the case.
- The term "related", when used in this section, means related within the third degree by blood, adoption, or marriage.
Source: L. 72: R&RE, p. 219, § 1. C.R.S. 1963: § 39-6-201.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to the personal interest of judge in case, see 15 Colo. Law. 1609 (1986).
Annotator's note. Since § 16-6-201 is similar to repealed § 39-9-2, C.R.S. 1963, CSA, C. 170, § 1, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
The object of this section is to secure to an accused a fair and impartial trial by a judge uninfluenced by bias or prejudice against the party charged. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
The purpose of this section and Crim. P. 21(b), is to guarantee that no person is forced to stand trial before a judge with a bent of mind. People v. Botham, 629 P.2d 589 (Colo. 1981).
It is the duty of a judge to sit in a case in the absence of a showing that he is disqualified. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
Unless a reasonable person could infer that the judge would in all probability be prejudiced against the petitioner, the judge's duty is to sit on the case. Smith v. District Court, 629 P.2d 1055 (Colo. 1981).
Defendant does not lose right to change upon reindictment. The right of the accused to an impartial judge is not waived or lost by a previous application for a change in an indictment for the same offense, which previous indictment was dismissed at the request of the state. Lawson v. People, 63 Colo. 270, 165 P. 771 (1917).
Applied in People in Interest of A.L.C., 660 P.2d 917 (Colo. App. 1982).
II. GROUNDS FOR CHANGE OF JUDGE.
A. In General.
Grounds identical to those in Crim. P. 21(b). The grounds for disqualification set out in this section are identical to those set out in Crim. P. 21(b). People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977); Smith v. District Court, 629 P.2d 1055 ( Colo. 1981 ); Comiskey v. District Ct., 926 P.2d 539 ( Colo. 1996 ).
Test of judge's qualifications is same as that for jurors. Where the issues involved require the judge to pass upon the facts, and it is solely a question of fact which is presented for his consideration and determination, the same test of his qualifications to determine the matter should be applied as would be in determining the qualifications of jurors in the premises. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
General rule. This section by express terms makes the judge incompetent to try a case if he is in any way interested, or in any way prejudiced, or if he shall have been of counsel in the cause. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Subjective conclusion of rudeness not ground for disqualification. It does not comport with sound judicial policy or the intent of either Crim. P. 21(b) or this section to require disqualification of a judge solely on the basis of subjective conclusions that he was discourteous or rude. Carr v. Barnes, 196 Colo. 70 , 580 P.2d 803 (1978).
B. Interest.
A disqualifying interest of a judge must necessarily relate to the subject matter of the litigation, and not to a determination of the facts and legal questions presented. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
It must be direct, apparent, substantial, certain, or immediate, and not one which is only indirect, contingent, incidental, remote, speculative, unreal, uncertain, inconsequential, or merely theoretical. Kostal v. People, 160 Colo. 64 , 414 P.2d 123, cert. denied, 385 U.S. 939, 87 S. Ct. 305, 17 L. Ed. 2d 218 (1966).
Sham action will not disqualify judge. The filing of sham or frivolous actions in which a judge is made a party for the sole purpose of disqualifying him in the trial of another case should not be allowed. Kostal v. People, 160 Colo. 64 , 414 P.2d 123, cert. denied, 385 U.S. 939, 87 S. Ct. 305, 17 L. Ed. 2d 218 (1966).
Facts showing interest are conclusive. To be in any way interested or to have been of counsel in the cause constitutes conclusive incompetency, and from the existence of those facts, or either of them, no other deduction can be made. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
C. Prejudice.
The appearance of possible prejudice can dictate disqualification. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977).
Because appearances can be as damaging to public confidence in the courts as actual bias or prejudice, a trial judge must scrupulously avoid any appearance of bias or prejudice. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977).
But mere expression of belief that judge would not give fair trial does not show prejudice. The mere expression of a belief that the judge would not give the defendant a fair and impartial trial, without the statement of a single fact upon which such belief is based, is in no sense a compliance with the requirements of this section that the prejudice of the judge must be shown. Young v. People, 54 Colo. 293, 130 P. 1011 (1913).
An appearance of impropriety cannot be inferred simply because the judge was a member of the general public that witnessed the fire started by defendant or because the judge assisted in general relief efforts. People v. Barton, 121 P.3d 224 (Colo. App. 2004).
However, numerous other allegations of the judge's personal involvement and comments made by the judge during the sentencing hearing about his or her personal experience presented legally sufficient basis to create the appearance of prejudice that could have prevented the judge from dealing fairly with the defendant. People v. Barton, 121 P.3d 224 (Colo. App. 2004).
A leaning or bias interfering with fairness will constitute prejudice. If the application discloses facts reasonably tending to the conclusion that the judge has a leaning towards one side of any question involved in the prosecution, or a bias in relation to it, which may interfere with fairness in judgment, he is prejudiced and incompetent within the meaning of this section. People ex rel. Burke v. District Court, 60 Colo. 1 , 152 P. 149 (1915); Walker v. People, 126 Colo. 1 35, 248 P.2d 287 (1952); Smith v. District Court, 629 P.2d 1055 ( Colo. 1981 ).
The facts will vary in accordance with the peculiar situation pertaining, but, as a general rule, sufficient factual matters must be stated to show bias and prejudice on the part of the trial judge to the extent that it may reasonably and substantially appear that his actions during the course of trial will be so influenced against defendant that a fair and impartial trial may not result. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
And it exists if case is decided on considerations not connected with facts. In any law suit where the issues involved are not determined alone from considerations that belong to them, there is prejudice within the meaning of the law, and such prejudice is necessarily against the party injured. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Where no basis for disqualification. In the context of a confidential plea-bargaining conference, conducted off-the-record and in chambers, and where the challenged statement by the court implies nothing more than the judge's belief that the proposed plea and sentence concessions would not do justice, there is no basis for disqualification. Sober v. District Court, 197 Colo. 250 , 592 P.2d 400 (1979).
It is not based upon judge's view of law. The right to disqualify the presiding judge is based upon an assumed prejudice or bias on his part, and not upon his views regarding the law of the case. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952); Altobella v. People, 161 Colo. 177 , 420 P.2d 832 (1966).
Thus, personal opinions as to issues generally not regarded as disqualifying judge. Personal opinions of a trial judge concerning issues in the cause before the court, or even as to the guilt or innocence of a defendant in a criminal case, are generally not regarded as disqualifying the judge unless his opinions be so pronounced that it can reasonably be said that he will be biased and prejudiced thereby during the trial. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
Speculation by trial judge concerning possible appellate response to a hypothetical review of the state's capital punishment statute does not provide the basis for an inference of any prejudice by the judge with respect to the defendant or his case. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).
Previous rulings of judge insufficient. Previous rulings of a presiding judge, although erroneous, numerous, and continuous, especially when they are subject to review, are not sufficient to show such bias or prejudice as would disqualify him. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952); Altobella v. People, 161 Colo. 177 , 420 P.2d 832 (1966).
Judges are not disqualified solely on the basis that they were formerly employed by the prosecutor's office. Instead, when employed by that office, the judge to be disqualified must have performed some role in the case or have obtained actual knowledge of disputed evidentiary facts of the case. People v. Julien, 47 P.3d 1194 (Colo. 2002).
Judge not disqualified due to prior prosecution of defendant while employed by prosecutor's office. Judge's prosecution of defendant seven years earlier involved similar but unrelated charges and resulted in a dismissal following defendant's successful motion to suppress. Judge not required to recuse himself where judge had no knowledge of evidentiary facts concerning the current case and no connection to the investigation, preparation, and presentation of the case. People v. Flockhart, 310 P.3d 66 (Colo. App. 2009), aff'd in part and rev'd in part, 2013 CO 42, 304 P.3d 227.
Prejudice must be directed to defendant individually or as a member of group or organization. The prejudice of a trial judge must be shown to be directed toward the defendant, individually, either as a result of personal dislike or feeling against the defendant, or that such prejudice may have resulted by reason of animosity toward some group or organization with which the defendant may have been associated or closely affiliated. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
Bond orders did not establish bias. The facts alleged concerning revocation of defendant's bond, resetting the bond at $100,000, and refusal to reduce the bond, when considered in the procedural setting out of which the orders arose, are not such as to establish to the satisfaction of a reasonable mind that the presiding judge had a bias or a prejudice that would in all probability prevent him from dealing fairly with the defendant. Altobella v. People, 161 Colo. 177 , 420 P.2d 832 (1966).
There can be no presumption that a judge is intimidated by the outrage of the community in which the judge serves. Thus, motion for disqualification properly denied where there was no allegation that the judge was in fact intimidated by the community's animosity toward the defendant. People v. Vecchio, 819 P.2d 533 (Colo. App. 1991).
The trial court's statement that defendant's motion for a competency hearing was a "ploy" to delay the trial was adequately supported by what the judge learned in his judicial capacity during argument on pretrial motions concerning the defendant's competency, and such a statement does not constitute the kind of prejudice required for recusal. People v. Seigler, 832 P.2d 980 (Colo. App. 1991).
Judge's concern for welfare of alleged victim does not establish the reality or appearance of partiality. Wilkerson v. District Ct., 925 P.2d 1373 (Colo. 1996).
Defendant did not establish actual bias requiring disqualification of sentencing judge. While judge's statements that he would be "haunt[ed]" by his decision to grant probation during defendant's prior criminal sentencing showed the judge was affected by his prior decision to be lenient with defendant, they were not enough to establish that the judge was unable to sentence defendant fairly. People v. Dobler, 2015 COA 25 , 369 P.3d 686.
Mere filing of complaint with the judicial performance commission, without more, does not establish sufficient grounds for recusal. Further, county court judge's decision to recuse herself in seven prior cases does not lead to the conclusion that she should permanently recuse herself in all cases involving the attorneys. Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008).
III. MOTION FOR CHANGE.
A. In General.
The credibility of the persons making the affidavits required by the statute will be presumed, unless the contrary appears from the affidavits. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
The facts set forth in affidavits supporting a motion to disqualify a judge are not subject to a trial court's inquiry, but are presumed to be true. Smith v. District Court, 629 P.2d 1055 (Colo. 1981).
Facts establishing incompetency must be stated. The mere assertion that the judge is prejudiced or incompetent is not sufficient. The facts from which prejudice or incompetency is to be inferred must be set forth. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
In all cases necessary material or pertinent facts should be set out; in case of the prejudice of the judge, his attention would thus be called to some circumstance which he may have forgotten, or of which he was entirely ignorant, but which the petitioner might conceive to be a cause of prejudice. Hughes v. People, 5 Colo. 436 (1880).
A motion and accompanying affidavits requesting disqualification of a trial judge from participating in a case properly assigned to that judge must state facts from which it may be reasonably inferred that the judge has a bias or prejudice with respect to the case, a party, or counsel. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).
The requirement in this section that prejudice of the judge must be shown is of the same effect as an earlier statute by which the facts were expressly required to be stated. Young v. People, 54 Colo. 293, 130 P. 1011 (1913).
The mere statement of opinion or conclusion of the bias on the part of the trial judge is not sufficient in a motion seeking disqualification of a judge, and the facts from which the incompetency or prejudice is inferred must be stated. There has always been required, as essential to a proper recusation, a statement of facts in the affidavits sufficient to disclose the incompetency of the judge. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
Suspicion, surmise, speculation, rationalization, conjecture, innuendo, and statements of mere conclusions of the pleader may not be substituted for a statement of facts. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952); People v. Cook, 22 P.3d 947 (Colo. App. 2000).
Affidavits need not state all essential facts. The affidavits in support of a motion for disqualification do not have to contain every essential fact which establishes the judge's prejudice; it is sufficient if the affidavits verify the facts set forth in the motion. People v. Botham, 629 P.2d 589 (Colo. 1981).
Affidavit may refer to another instrument for particulars. An affidavit may be made full and complete by reference to an attached instrument, or by having the particular matters so referred to embodied in the affidavit itself. Either is sufficient. Ausmus v. People, 47 Colo. 167, 107 P. 204 (1910); People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Both actuality and appearance of fairness must be considered in reviewing a motion for disqualification and accompanying affidavits. People v. Botham, 629 P.2d 589 ( Colo. 1981 ); Rodriguez v. District Court, 719 P.2d 699 ( Colo. 1986 ).
A motion for recusal must be verified and supported by affidavits of at least 2 credible witnesses not related to defendant. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).
Whether recusal is required will depend on whether defendant's motion and supporting affidavits set forth legally sufficient facts upon which bias or prejudice may be implied. James v. People, 727 P.2d 850 ( Colo. 1986 ); People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).
If verified motion for change of judge and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself or herself. People v. Lanari, 926 P.2d 116 (Colo. App. 1996).
This section does not preclude the referral of a motion for disqualification to the chief judge for a hearing to determine the sufficiency of the allegations of a motion for substitute judge. People v. Lanari, 926 P.2d 116 (Colo. App. 1996).
This section nowhere provides for the filing of counteraffidavits. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
A previously executed affidavit can lend no verity to a subsequent pleading containing new matter. The second motion is not entitled to consideration as it does not comply with this section, being insufficient in form. Altobella v. People, 161 Colo. 177 , 420 P.2d 832 (1966).
Motions for disqualification of a judge must be filed at the very earliest opportunity. Ordinarily this requires the filing of such a motion promptly upon the service of the information or at least by time of arraignment of the defendant in a criminal case. Usually the bias or animosity of the judge will be known to the defendant, or his counsel, at that time; hence the rule requiring prompt action. It is conceivable that in certain circumstances the fact of bias or prejudice on the part of a judge might not be ascertainable for some time after the filing of the information, but in such a situation a statement should be forthcoming showing the reason why the petition was not sooner filed. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
The requirements of Crim. P. 21(b) with respect to timely filing, apply whether the movant expressly invokes that rule or purports to proceed only under this section. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977).
Motion presented in apt time. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Motion filed too late. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
Referring a motion for substitution to another judge for decision is not reversible error even if it is not the procedure contemplated by C.R.C.P. 21. Comiskey v. District Ct., 926 P.2d 539 (Colo. 1996).
B. Sufficiency of Motion.
Test of sufficiency. The facts stated must establish to the satisfaction of a reasonable mind that the judge has a bias or prejudice that will in all probability prevent him from dealing fairly with the defendant. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952); People v. Baca, 633 P.2d 528 (Colo. App. 1981).
To be sufficient, the affidavits must state facts from which the respondent judge's prejudice may reasonably be inferred. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977).
The test of the legal sufficiency of a motion to disqualify a judge is whether the motion and affidavits state facts from which it may reasonably be inferred that the questioned judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with the defendant. Smith v. District Court, 629 P.2d 1055 ( Colo. 1981 ); People v. Botham, 629 P.2d 589 ( Colo. 1981 ); People v. Hrapski, 718 P.2d 1050 ( Colo. 1986 ); People v. Seigler, 832 P.2d 980 (Colo. App. 1991).
Judicial recusal is required pursuant to motion once facts have been established from which it can be reasonably inferred that the judge has such bent of mind that he would be unable to deal fairly with the party seeking recusal. People v. Vecchio, 819 P.2d 533 (Colo. App. 1991); People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).
Evidence of either actual prejudice or the appearance of prejudice may suffice to require recusal. Estep v. Hardeman, 705 P.2d 523 ( Colo. 1985 ); People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).
Where defendant failed to submit affidavits in accordance with requirements of this section and Crim. P. 21(b), and supplied allegations himself that record did not verify, there were insufficient grounds for disqualification. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).
Where nothing in motion or affidavits suggests that the judge or any employee was present when the defendant's crime pending before the judge was committed; that the judge or any employee was in any way personally victimized by the crime; or that the work of the judge or any employee was disrupted by the crime, it cannot be said that judge would necessarily be prejudiced against the party charged as to be unable to be fair in a future trial of that party on an unrelated charge. People v. Anderson, 991 P.2d 319 (Colo. App. 1999).
When a motion for disqualification is filed, the court must accept the facts alleged in the motion and supporting affidavits as true and must determine, as a matter of law, its adequacy. People v. Seigler, 832 P.2d 980 (Colo. App. 1991).
What a judge learns in his judicial capacity is a proper basis for judicial observations, and the use of such information is not the kind of matter that results in disqualification. Therefore, court's statement that the motion for a competency hearing was a "ploy" to delay the trial was adequately supported by what the judge learned in his judicial capacity during argument on pretrial motions concerning defendant's competency and did not constitute the kind of prejudice required for recusal. People v. Seigler, 832 P.2d 980 (Colo. App. 1991).
Motion and affidavits do not establish a particular bias or prejudice on the part of the trial judge even though ex parte communications did occur. Wilkerson v. District Ct., 925 P.2d 1373 (Colo. 1996).
Sufficiency is a matter of law. The finding of sufficiency in a motion for change of judge is a finding of law, and not fact, and this is true whether it be the finding of the trial court or of an appellate tribunal. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915); People ex rel. Bennet v. District Court, 84 Colo. 367, 270 P. 663 (1928).
The judge has the right, and it is his duty, to pass upon the adequacy of the motion seeking disqualification of a judge as a matter of law. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
Whether the motion is timely and whether it sufficiently states grounds for disqualification are questions of law subject to plenary review. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977).
Judge may determine sufficiency of motion but not question of prejudice. Where, in a criminal prosecution, motion is made for change of judge on the ground of prejudice in the mind of the presiding judge, such judge may hear and determine questions as to the sufficiency of the motion and the affidavits in support of it, but not the question whether in fact such prejudice exists. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).
The courts, in considering the sufficiency of the motion for a change of judge, can neither reject the pleading, nor disregard the facts alleged therein. They can only apply the law and test thereby the sufficiency of the facts alleged. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Although the trial judge must, of necessity, initially determine the timeliness and legal sufficiency of a motion to disqualify him for prejudice, he cannot pass upon the truth or falsity of statements of fact in the motion and supporting affidavits. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977).
Thus, facts are accepted as true. The change of judge is conditioned, not upon the actual fact of his prejudice, but upon the imputation of it. The facts set forth in the recusation must, for the purposes of the motion, be accepted as true, notwithstanding they may be known to the judge and all mankind to be false. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
While the alleged prejudicial judge may pass upon the question of law involving the sufficiency of the petition and affidavit, the question of the truth of the allegation is never tried. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).
As a matter of judicial policy, courts must take as true, for purposes of a motion to disqualify, facts stated in the affidavits and motion. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977); People v. Botham, 629 P.2d 589 ( Colo. 1981 ); Comiskey v. District Ct., 926 P.2d 539 ( Colo. 1996 ); People v. Cook, 22 P.3d 947 (Colo. App. 2000); Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008).
Judge loses jurisdiction except to grant change. The motion and affidavits are conditions imposed by this section. Upon legally sufficient compliance, the defendant is entitled to a change as of right and the judge loses jurisdiction except to grant the change, without any inquiry into the facts. Erbaugh v. People, 57 Colo. 48, 140 P. 188 (1914).
When it is sought to remove the judge because of his prejudice, the law-making power of our state has not deemed it proper to vest in such judge any discretion in the premises, and the judge whose competency is so questioned can only pronounce the judgment of the law. He cannot sit in judgment upon that which directly concerns himself. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915); People ex rel. Bennet v. District Court, 84 Colo. 367, 270 P. 663 (1928).
If the motion for disqualification be sufficient in form, and whether the allegations therein contained be in fact true or false, if they be set forth as facts they must be so accepted, and the judge may perform no further duty than that of entering an order of disqualification. He may not pass upon the facts. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
The trial judge has no discretion in the matter of recusing himself upon finding the affidavits sufficient under the rule to allege prejudice. He immediately loses all jurisdiction in the matter except to grant the change. People v. District Court, 192 Colo. 503 , 560 P.2d 828 (1977).
Review of decision on motion. Should the trial court conclude that the motion and affidavits in support of change of judge are insufficient to require the change, and a reviewing or superior tribunal find the contrary, the question upon which the two tribunals have differed is of law, not of fact. Therefore, the finding of the trial court in such case can have no bearing upon the issue when presented to a higher tribunal. People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915).
Motion held sufficient. Motion for disqualification of respondent judge with request that a substitute judge be named was sufficient where petitioner had entered a plea of guilty before the respondent judge who then imposed sentence on the petitioner and on appeal petitioner's guilty plea was vacated but on remand the case was again assigned to the respondent judge. Golden v. District Court, 186 Colo. 300 , 527 P.2d 60 (1974).
ARTICLE 7 SEPARATE TRIAL - ARRAIGNMENT - PLEA AGREEMENTS - DEFERRED PROSECUTION AND DEFERRED SENTENCING
Editor's note: This article was repealed and reenacted in 1972. For historical information concerning the repeal and reenactment, see the editor's note before the article 1 heading.
Section
PART 1 SEPARATE TRIAL - ALIBI NOTICE
16-7-101. Separate trial of joint defendants.
When two or more defendants are jointly indicted or informed against for any offense and there is material evidence, not relating to reputation, which is admissible against one or some of them but which is not admissible against all of them if they are tried separately and which is prejudicial to those against whom it is not admissible, those against whom such evidence is admissible shall be tried separately upon motion of any of those against whom the evidence is not admissible. In all other cases, defendants jointly prosecuted shall be tried separately or jointly in the discretion of the court.
Source: L. 72: R&RE, p. 220, § 1. C.R.S. 1963: § 39-7-101.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to misjoinder of defendants, see 15 Colo. Law. 1615 (1986). For article, "Felony Plea Bargaining in Six Colorado Judicial Districts: A Limited Inquiry into the Nature of the Process", see 66 Den. U. L. Rev. 243 (1989).
Annotator's note. Since § 16-7-101 is similar to repealed § 39-7-11, C.R.S. 1963, CSA, C. 48, § 484, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
This section changes the common-law rule that existed prior to its enactment, which left the granting of separate trials to defendants jointly indicted to the discretion of the court. Davis v. People, 22 Colo. 1, 43 P. 122 (1895).
Goal of section. The goal underlying this section is to promote a fair determination of the issue of guilt or innocence of the defendant. People v. Gonzales, 198 Colo. 450 , 601 P.2d 1366 (1979); People v. Horne, 619 P.2d 53 ( Colo. 1980 ).
The language of this section is positive and unequivocal. Davis v. People, 22 Colo. 1, 43 P. 122 (1895).
This section is mandatory when it appears that a defendant would be prejudiced on a joint trial by the admission of evidence which would not be admissible as against him, but which would be competent as against his codefendant. Russell v. People, 125 Colo. 290 , 242 P.2d 610 (1952).
A defendant is entitled to severance of trial as a matter of right if there is evidence that is admissible against one but not all of the parties and if the evidence is prejudicial to the defendant against whom the evidence is not admissible. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).
The supreme court has interpreted this section to mean, in the mandatory severance setting, that the trial court must determine whether the admitted evidence was so inherently prejudicial that the jury could not have limited its use to its proper purpose. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).
The trial court's decision will be affirmed absent a showing of an abuse of discretion and actual prejudice to the moving party. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).
Basis for severance. Severance is to be based upon a finding of prejudice rather than simply the differences which are incidental to any trial of more than one defendant. People v. Johnson, 192 Colo. 483 , 560 P.2d 465 (1977).
Severance is a matter of right under proper circumstances. When a case as contemplated by this section is presented, it is the duty of the court to grant a severance as a matter of right. Davis v. People, 22 Colo. 1, 43 P. 122 (1895).
Where two are indicted jointly, and there is evidence not relating to reputation, admissible as against one of them, but inadmissible as against the other, the one against whom such evidence is inadmissible is entitled to a separate trial as of right under this section. Cook v. People, 56 Colo. 477, 138 P. 756 (1914).
Where the evidence is admissible against all defendants, severance need not be allowed. Moore v. People, 31 Colo. 336, 73 P. 30 (1903); Cook v. People, 56 Colo. 477, 138 P. 756 (1914).
Evidence of reputation of another defendant is expressly excluded as a ground for severance by this section. Mukuri v. People, 92 Colo. 306 , 19 P.2d 1040 (1933).
A party under criminal indictment is not entitled to a severance on the ground that his codefendants were known in the community as men of bad reputation. Mukuri v. People, 92 Colo. 306 , 19 P.2d 1040 (1933).
Matter of severance left to discretion of trial court. Where there was no claim that the joint trial involved evidence admissible against only one of the defendants, the matter of severance was left to the discretion of the trial court. People v. Johnson, 192 Colo. 483 , 560 P.2d 465 (1977).
The granting or denial of a motion for severance and continuance is a matter within the sound discretion of the trial court. People v. Gable, 647 P.2d 246 (Colo. App. 1982).
A motion for severance of defendants is addressed to the sound discretion of the trial court. People v. Horne, 619 P.2d 53 ( Colo. 1980 ); People v. Vigil, 678 P.2d 554 (Colo. App. 1983); People v. Adams, 678 P.2d 572 (Colo. App. 1984); People v. Durre, 713 P.2d 1344 (Colo. App. 1985); People v. Manners, 713 P.2d 1348 (Colo. App. 1985).
Although court properly denied motion for severance on evidentiary grounds, it was an abuse of discretion to deny motion for severance on speedy trial grounds under § 18-1-405 where court made no finding of good cause why severance should not be granted. Finding of good cause is specifically required by § 18-1-405 (6)(c). People v. Hernandez, 829 P.2d 392 (Colo. App. 1991).
And denial not reversed unless defendant prejudiced. Where there is no showing that the denial of a motion for severance prejudiced the defendant, the trial court's ruling will not be disturbed on appeal. People v. Horne, 619 P.2d 53 ( Colo. 1980 ); People v. Magoon, 645 P.2d 286 (Colo. App. 1982); People v. Vigil, 678 P.2d 554 (Colo. App. 1983).
Severance not mandatory. People v. Gallegos, 680 P.2d 1294 (Colo. App. 1983).
Severance is not constitutionally mandated because of conflicting peremptory challenges exercised by defendant's counsel. People v. Durre, 713 P.2d 1344 (Colo. App. 1985).
To determine whether separate trials are required, a trial court must determine whether admitted evidence is so inherently prejudicial that the jury would not be able to limit its use to its proper purpose. Otherwise, a motion for joinder is addressed to the discretion of the trial court, and will be affirmed absent a showing of an abuse of discretion and actual prejudice to the moving party. People v. Escano, 843 P.2d 111 (Colo. App. 1992).
When an out-of-court statement of a co-defendant does not make reference to the co-defendant, severance should be granted only when it is necessary to promote a fair determination of the guilt or innocence of one or more defendants. The court should make this determination by considering, among other factors, whether, in view of the number of offenses and defendants charged and the complexity of the evidence offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense and as to each defendant. People v. Escano, 843 P.2d 111 (Colo. App. 1992).
Since a co-defendant's statements to the police, made in defendant's presence, are admissible against defendant, defendant is not entitled to severance as a matter of right under this section. People v. Gardenhire, 903 P.2d 1159 (Colo. App. 1995).
Trial court did not abuse its discretion by failing to sever defendant's case where defendant's reason for requesting a severance was to be able to exercise additional peremptory challenges. People v. Lesney, 855 P.2d 1364 (Colo. 1993).
Two-part test for determining severance issues. This section contemplates a two-part test for determining severance issues: (1) Whether there is material evidence admissible against one but not all of the parties; and (2) whether admission of that evidence would be prejudicial against whom the evidence is not admissible. People v. Gonzales, 198 Colo. 450 , 601 P.2d 1366 (1979); People v. Hernandez, 829 P.2d 392 (Colo. App. 1991); People v. Escano, 843 P.2d 111 (Colo. App. 1992).
Test applied in People v. Barela, 689 P.2d 689 (Colo. App. 1984); People v. Gregory, 691 P.2d 357 (Colo. App. 1984); People v. Peltz, 697 P.2d 766 (Colo. App. 1984), aff'd, 728 P.2d 1271 ( Colo. 1986 ); People v. Heller, 698 P.2d 1357 (Colo. App. 1984); People v. Pappadiakis, 705 P.2d 983 (Colo. App. 1985), aff'd sub nom. Peltz v. People, 728 P.2d 1271 ( Colo. 1986 ).
Showing required to establish abuse of discretion. To establish abuse of the trial court's discretion, more is required than a showing that separate trials might afford a better chance of acquittal. People v. Armstrong, 664 P.2d 716 (Colo. App. 1982), rev'd on other grounds, 701 P.2d 17 ( Colo. 1985 ).
Mutual participation of defendants in an offense is considered a logical basis for refusing to sever. People v. Adams, 678 P.2d 572 (Colo. App. 1984); People v. Carrillo, 946 P.2d 544 (Colo. App. 1997), aff'd on other grounds, 974 P.2d 478 ( Colo. 1999 ).
Factors to be considered in determining whether denial of severance constitutes an abuse of discretion include: (1) whether the number of defendants or the complexity of the evidence is such that the jury will probably confuse the law and evidence applicable to each defendant; (2) whether, despite admonitory instructions, evidence admissible against one defendant will improperly be considered against another; and (3) whether the defenses presented are antagonistic. People v. Escano, 843 P.2d 111 (Colo. App. 1992); People v. Carrillo, 946 P.2d 544 (Colo. App. 1997), aff'd on other grounds, 974 P.2d 478 ( Colo. 1999 ).
Admission of testimony of codefendant not reversible error. It was not reversible error to admit evidence concerning a description of defendants just because it was testimony of a codefendant as to whom the severance had been granted. In view of the inconclusive nature of the identification, it cannot be said that there was any prejudice to the defendants from the admission of this evidence, although it would clearly be a better procedure to conceal the source of the extrajudicial identifications. Kurtz v. People, 177 Colo. 306 , 494 P.2d 97 (1972).
This section is applicable to cases of conspiracy. Davis v. People, 22 Colo. 1 , 43 P. 122 (1895); Seebass v. People, 116 Colo. 555 , 182 P.2d 901 (1947).
II. MOTION FOR SEVERANCE.
Considerations in deciding motion for severance. When deciding whether to grant a motion for severance, the trial court should consider whether evidence inadmissible against one defendant will be considered against the other defendant, despite the issuance by the trial court of the proper admonitory instructions. An additional consideration is whether the defendants plan to offer antagonistic defenses. People v. Gonzales, 198 Colo. 450 , 601 P.2d 1366 (1979).
Additional criteria for consideration in determining whether the possibility of prejudice and unfair trial will result if severance is denied is whether the number of defendants or the complexity of evidence, together with the applicable law, will be confused by the jury, as it applies the law to each defendant. People v. Warren, 196 Colo. 75 , 582 P.2d 663 (1978).
Criteria applied in People v. Vigil, 678 P.2d 554 (Colo. App. 1983); People v. Backus, 952 P.2d 846 (Colo. App. 1998).
Motion should set out the alleged incompetent evidence. That a defendant will be prejudiced on a joint trial by the admission of evidence which is not admissible as against him but which is competent as against his codefendant must be made to appear in support of a motion for a severance, not by merely stating that evidence will be admitted which is not competent as against the moving defendant, but the evidence which it is claimed is incompetent must be set out so that the court will be given the opportunity to determine whether or not the defendant moving for a severance may be prejudiced. Such has been the recognized practice in this jurisdiction. Davis v. People, 22 Colo. 1, 43 P. 122 (1895); Moore v. People, 31 Colo. 336, 73 P. 30 (1903); Robinson v. People, 76 Colo. 416, 232 P. 672 (1925).
Under the provisions of this section it is held that the showing in support of a motion for a severance was not sufficient to make the denial of the motion prejudicial error. The alleged incompetent evidence should be set out in the motion. Robinson v. People, 76 Colo. 416, 232 P. 672 (1925).
The trial court is to be guided by the contents of the motion and the affidavit and must be advised thereby as to the nature of the evidence before it can determine whether the severance should be granted. Where neither the motion, nor the required affidavit, shows sufficient cause, the trial court commits no error in denying the motion for severance. Russell v. People, 125 Colo. 290 , 242 P.2d 610 (1952).
Unless it is impossible to set forth the evidence required. While a motion for severance should set forth the evidence which it is claimed will prejudice the rights of the moving defendant, if it is impossible for him to set out such evidence, the motion will not be held insufficient because of his failure to do the impossible. Kolkman v. People, 89 Colo. 8, 300 P. 575 (1931).
The application for severance must be supported by an affidavit which definitely shows a good cause therefor. Robinson v. People, 76 Colo. 416, 232 P. 672 (1925).
Otherwise the motion is denied. A motion for a separate trial which contained no statement of facts from which the court could determine whether there was evidence against a codefendant which was immaterial and inadmissible as to the moving defendant and which would be prejudicial if admitted, and the motion being unverified, not supported by affidavit, and not referring to any source from which the facts might be obtained, held properly denied. Garcia v. People, 88 Colo. 267, 295 P. 491 (1931).
Defendant against whom evidence is inadmissible is proper party to make the application. Garcia v. People, 88 Colo. 267, 295 P. 491 (1931).
The separation must be requested by the party against whom the material evidence is inadmissible. Cook v. People, 56 Colo. 477, 138 P. 756 (1914), disapproving Moore v. People, 31 Colo. 336, 73 P. 30 (1903).
Other defendant cannot complain of denial of severance. Where only one of two defendants moved for a severance, which was denied, the other defendant will not be heard to complain of the ruling. McClary v. People, 79 Colo. 205, 245 P. 491 (1926).
If the defendant fails to move for severance, he cannot raise the question of severance on appeal. Reed v. People, 174 Colo. 43 , 482 P.2d 110 (1971).
Motion denied where evidence was not within prohibition. Where evidence of which defendants' counsel complained was not within the prohibitions of this section, overruling of motion for separate trials did not constitute prejudicial error. Lewis v. People, 109 Colo. 89 , 123 P.2d 398 (1942).
Motion for severance inadequate. Brown v. People, 124 Colo. 412 , 238 P.2d 847 (1951).
Denial of motion upheld where no objection is made to evidence during trial. Where a motion for severance under this section was denied, and on the trial no objection was made on behalf of either defendant to any evidence which could by any possibility be considered as admissible against one and inadmissible against the other, the ruling of the court in denying the motion is upheld. Stone v. People, 71 Colo. 162, 204 P. 897 (1922).
Or where evidence is not prejudicial. Unless the appeal discloses the admission of prejudicial evidence, no error is committed in denying a motion for a severance. Kolkman v. People, 89 Colo. 8, 300 P. 575 (1931).
Severance was not mandatory and was at the discretion of the trial court because there was no material evidence admissible against one defendant but not against the other. People v. Wandel, 713 P.2d 398 (Colo. App. 1985).
Refusal to grant severance on proper motion is error. A motion for a separate trial, when supported by a transcript of the evidence of a former trial in which it clearly appeared that there had been prejudicial evidence offered and received, should have been granted, and the refusal to do so was error. Garcia v. People, 88 Colo. 267, 295 P. 491 (1931).
16-7-102. Required notice of defense of alibi.
If the defendant intends to introduce evidence that the defendant was at a place other than the location of the offense, the defendant shall serve upon the prosecuting attorney as soon as practicable, but not later than thirty-five days before trial, a statement in writing specifying the place where the defendant claims to have been and the names and addresses of the witnesses the defendant will call to support the defense of alibi. Upon receiving the defendant's statement, the prosecuting attorney shall advise the defendant of the names and addresses of any additional witnesses who may be called to refute such alibi as soon as practicable after the names of such witnesses become known. Neither the prosecuting attorney nor the defendant shall be permitted at the trial to introduce evidence inconsistent with the specification statement unless the court for good cause and upon just terms permits the specification statement to be amended. If the defendant fails to make the specification required by this section, the court shall exclude evidence offered in support of the defense of alibi unless the court finds upon good cause shown that such evidence should be admitted in the interest of justice.
Source: L. 72: R&RE, p. 220, § 1. C.R.S. 1963: § 39-7-102. L. 74: Entire section amended, p. 238, § 1, effective March 19. L. 93: Entire section amended, p. 517, § 7, effective July 1. L. 2012: Entire section amended, (SB 12-175), ch. 208, p. 850, § 75, effective July 1.
ANNOTATION
Where the defendant fails to provide notice of the alibi defense and where he fails to request an instruction on alibi, the trial court's failure to instruct on alibi was not plain error. People v. Montgomery, 743 P.2d 439 (Colo. App. 1987).
Applied in People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).
PART 2 ARRAIGNMENT
16-7-201. Place of arraignment.
The defendant shall be arraigned in the court having trial jurisdiction in which the indictment, information, or complaint is filed, unless before arraignment the cause has been removed to another court, in which case he shall be arraigned in that court.
Source: L. 72: R&RE, p. 221, § 1. C.R.S. 1963: § 39-7-201.
ANNOTATION
Annotator's note. Since § 16-7-201 is similar to repealed laws antecedent to CSA, C. 48, § 479, relevant cases construing those provisions have been included in the annotations to this section.
Arraignment and plea are essential prerequisites to a judgment of conviction. People v. Lawton, 61 Colo. 566, 158 P. 1099 (1916).
Former provisions concerning arraignment and pleading in cases of felonies were held to be imperative. Ray v. People, 6 Colo. 231 (1882).
An arraignment and plea are indispensable to a valid conviction. Wright v. People, 22 Colo. 143, 43 P. 1021 (1896).
Wherever the duty to arraign is imperative, failure in the performance of this duty is fatal, when the record shows the failure in an appellate court. Ray v. People, 6 Colo. 231 (1882).
16-7-202. Presence of defendant.
- If the offense charged is a felony, a level 1 drug misdemeanor, or a class 1 misdemeanor or if the maximum penalty for the offense charged is more than one year's imprisonment, the defendant must be personally present for arraignment; except that the court, for good cause shown, may accept a plea of not guilty made by an attorney representing the defendant without requiring the defendant to be personally present. In all prosecutions for lesser offenses, the defendant may appear by his or her attorney who may enter a plea on his or her behalf. If the defendant appears personally for a charge that is not in title 42, the court may advise the defendant of the possibility that restorative justice practices may be part of a sentence, if available in the jurisdiction.
- If a plea of guilty or nolo contendere (no contest) is entered by counsel in the absence of the defendant, the court may command the appearance of the defendant in person for the imposition of sentence.
Source: L. 72: R&RE, p. 221, § 1. C.R.S. 1963: § 39-7-202. L. 2011: (1) amended, (HB 11-1032), ch. 296, p. 1400, § 1, effective August 10. L. 2013: (1) amended, (SB 13-250), ch. 333, p. 1930, § 42, effective October 1. L. 2017: (1) amended, (HB 17-1039), ch. 58, p. 182, § 1, effective August 9.
ANNOTATION
Applied in People v. Lesh, 668 P.2d 1362 (Colo. 1983).
16-7-203. Irregularity of arraignment.
No irregularity in the arraignment which does not affect the substantial rights of the defendant shall affect the validity of any proceeding in the cause if the defendant pleads to the charge or proceeds to trial without objecting to the irregularity.
Source: L. 72: R&RE, p. 221, § 1. C.R.S. 1963: § 39-7-203.
ANNOTATION
Arraignment procedures are designed primarily to protect the defendant. Harrington v. District Court, 192 Colo. 351 , 559 P.2d 225 (1977).
Representation by nonresident counsel does not nullify arraignment. Where an attorney from a sister state is admitted to the bar of Colorado for the purpose of representing a defendant in a trial for murder in the first degree, the fact that such counsel does not have an associate resident counsel with him in the case does not nullify the arraignment of defendant or his plea of not guilty. Martinez v. People, 134 Colo. 82 , 299 P.2d 510 (1956) (decided under repealed § 39-7-9, CRS 53).
Elements of arraignment not ritual from which court cannot deviate. While the statutes and rules prescribe the necessary elements of an arraignment, this section makes it clear that they have not created a ritual from which a court cannot deviate. People v. Adargo, 622 P.2d 593 (Colo. App. 1980).
16-7-204. Procedures on arraignment.
The procedure to be followed upon arraignment shall be in compliance with the provisions of applicable rules of criminal procedure adopted by the supreme court of Colorado.
Source: L. 72: R&RE, p. 221, § 1. C.R.S. 1963: § 39-7-204.
16-7-205. Pleas authorized on arraignment.
-
A defendant personally, or, where permissible, by counsel may orally enter:
- A plea of guilty; or
- A plea of not guilty; or
- A plea of nolo contendere (no contest) with the consent of the court; or
- A plea of not guilty by reason of insanity, in which event a not guilty plea may also be entered.
Source: L. 72: R&RE, p. 221, § 1. C.R.S. 1963: § 39-7-205.
ANNOTATION
Annotator's note. Since § 16-7-205 is similar to repealed § 39-7-5, CRS 53, CSA, C. 48, § 479, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Entry of plea by counsel for defendant is sufficient. Davis v. People, 77 Colo. 546, 238 P. 25 (1925).
When the essential presence of an accused in a court having jurisdiction is a fulfilled condition, there is no express requirement in the federal law that in pleading to an indictment he must actually speak for himself or remain mute in order that a valid plea may be entered. Marler v. People, 139 Colo. 23 , 336 P.2d 101 (1959).
Declaration of plea may be made orally, by defendant or counsel. Minich v. People, 8 Colo. 440 , 9 P. 4 (1885); Boyd v. People, 108 Colo. 289 , 116 P.2d 193 (1941); Marler v. People, 139 Colo. 23 , 336 P.2d 101 (1959).
But plea must be entered in open court. A message from counsel for defendant to the prosecuting attorney, authorizing the entry of a plea, does not authorize the acceptance of such a plea. Whether by defendant or his counsel, the plea must be entered orally and in open court. Boyd v. People, 108 Colo. 289 , 116 P.2d 193 (1941).
Withdrawal of plea is not a matter of right. In the absence of statute or of peculiar circumstances, a defendant in a criminal case is not entitled as a matter of right to withdraw a plea duly made to an indictment or information, in order that he may file another plea or interpose objections to the proceedings which should have been presented before the plea; hence the action of a trial court in refusing a change of plea will not be reversed if there is no abuse of discretion. Abshier v. People, 87 Colo. 507, 289 P. 1081 (1930).
Where a defendant in a criminal case is arraigned and enters pleas of not guilty and not guilty by reason of insanity, he does not thereafter have an absolute right to withdraw those pleas and enter a plea of guilty in order to avoid prosecution upon another information which includes habitual criminal counts. Matz v. People, 133 Colo. 45 , 291 P.2d 1059 (1956).
Defendants cannot withdraw consent which was freely given simply because the sentence which the court imposes is not to their liking. Williams v. People, 134 Colo. 580 , 307 P.2d 466 (1957).
Application to change a plea is addressed to the sound discretion of the court, and its ruling will be reversed only for an abuse of that discretion, resulting in direct prejudice to the defendant whose application is denied. Matz v. People, 133 Colo. 45 , 291 P.2d 1059 (1956).
No abuse of discretion in refusing defendant permission to change plea. A trial court did not abuse its discretion in refusing to grant the defendant permission to withdraw his plea of nolo contendere and to reinstate a plea of not guilty. People v. Canino, 181 Colo. 207 , 508 P.2d 1273 (1973).
Nolo contendere plea should be upheld. Nolo contendere plea that is voluntarily and understandingly made, with a factual basis that appears in the record, should be upheld.