I. GENERAL CONSIDERATION.

Law reviews. For article, "By Leave of C ourt First Had", see 8 Dicta 10 (May 1931). For article, "By Leave of C ourt First Had", see 8 Dicta 14 (June 1931). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "Local Responsibility for Improvement of Search and Seizure Practices", see 34 Rocky Mt. L. Rev. 150 (1962). For note, "One Year Review of Constitutional Law", see 41 Den. L. Ctr. J. 77 (1964). For note, "Search and Seizure Since Mapp", see 36 U. Colo. L. Rev. 391 (1964). For comment, "Reporter's Privilege: Pankratz v. District Court", see 58 Den. L.J. 681 (1981). For article, "Good-Faith Exception to the Exclusionary Rule: The Fourth Amendment is Not a Technicality", see 11 Colo. Law. 704 (1982). For article, "Incriminating Evidence: What to do With a Hot Potato", see 11 Colo. Law. 880 (1982). For article, "Attacking the Seizure -- Over-coming Good Faith", see 11 Colo. Law. 2395 (1982). For comment, "Privacy Rights v. Law Enforcement Difficulties: The Clash of Competing Interests in New York v. Belton", see 59 Den. L.J. 793 (1982). For article, "Warrant Requirement -- The Burger Court Approach", see 53 U. Colo. L. Rev. 691 (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, "Colorado's Approach to Searches and Seizures in Law Offices", see 54 U. Colo. L. Rev. 571 (1983). For article, "Search Warrants, Hearsay and Probable Cause -- The Supreme Court Rewrites the Rules", see 12 Colo. Law 1250 (1983). For casenote, "People v. Sporleder: Privacy Expectations Under the Colorado Constitution", see 55 U. Colo. L. Rev. 593 (1984). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with searches, see 61 Den. L.J. 281 (1984). For article, "The Demise of the Aguilar-Spinelli Rule: A Case of Faulty Reception", see 61 Den. L. J. 431 (1984). For comment, "The Good Faith Exception: The Seventh Circuit Limits the Exclusionary Rule in the Administrative Contest", see 61 Den. L.J. 597 (1984). For article, "Veracity Challenges in Colorado: A Primer", see 14 Colo. Law. 227 (1985). For article, "Consent Searches: A Brief Review", see 14 Colo. Law. 795 (1985). For article, "United States v. Leon and Its Ramifications", see 56 U. Colo. L. Rev. 247 (1985). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with searches, see 62 Den. U. L. Rev. 159 (1985). For article, "People v. Mitchell: The Good Faith Exception in Colorado", see 62 Den. U. L. Rev. 841 (1985). For article, "Balancing Investigative Powers and Privacy Rights", see 14 Colo. Law. 947 (1985). For article, "Miranda Rights in a Terry Stop: The Implications of People v. Johnson", see 63 Den. U. L. Rev. 109 (1986). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with searches and seizures, see 63 Den. U. L. Rev. 343 (1986). 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 1566 (1986). For comment, "The Constitutionality of Drunk Driving Roadblocks", see 58 U. Colo. L. Rev. 109 (1986-87). For comment, "The New Federalism Gone Awry: A Comment on People v. Oates", see 58 U. Colo. L. Rev. 125 (1986-87). For article, "Administrative Law", which discusses Tenth Circuit decisions dealing with administrative searches and seizures, see 64 Den. U. L. Rev. 105 (1987). For article, "Constitutional Law", which discusses a Tenth Circuit decision dealing with rights to privacy regarding credit reporting, see 64 Den. U. L. Rev. 216 (1987). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with searches, see 64 Den. U. L. Rev. 261 (1987). For article, "Logical Fallacies and the Supreme Court", see 59 U. Colo. L. Rev. 741 (1988). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with unreasonable searches and seizures, see 65 Den. U. L. Rev. 535 (1988). For article, "Urine Trouble: Unregulated Drug-Use Testing and the Right to Privacy", see 17 Colo. Law. 1309 (1988). For a discussion of Tenth Circuit decisions dealing with criminal procedure and search and seizure, see 66 Den. U. L. Rev. 739 and 813 (1989). For note, "Testing Government Employees for Drug Use: The United States Supreme Court Approves", see 67 Den. U.L. Rev. 91 (1990). For comment, "Fourth Amendment Protection in the School Environment: The Colorado Supreme Court's Application of the Reasonable Suspicion Standard in State v. P.E.A.", 61 U. Colo. L. Rev. 153 (1990). For articles, "Civil Rights", "Constitutional Law", "Criminal Procedure", and "Search and Seizure", which discuss Tenth Circuit decisions dealing with searches and seizures, see 67 Den. U. L. Rev. 639, 653, 701, and 765 (1990). For article, "The Use of Drug-Sniffing Dogs in Criminal Prosecutions", see 19 Colo. Law. 2429 (1990). For article, "Roadside Sobriety Checkpoints in Colorado", see 20 Colo. Law. 897 (1991). For article, "The Exigent Circumstances Exception to the Warrant Requirement", see 20 Colo. Law. 1167 (1991). For article, "The Police Have Become Our Nosy Neighbors: Florida v. Riley and Other Supreme Court Deviations From Katz", see 62 U. Colo. L. Rev. 407 (1991). For article, "The Consent Exception to the Warrant Requirement", see 23 Colo. Law. 2105 (1994). For article, "The Execution of Search Warrants", see 27 Colo. Law. 33 (April 1998). For article, "The Inevitable Discovery Exception to the Exclusionary Rule", see 28 Colo. Law. 61 (June 1999). For article, "House Bill 1114: Eliminating Biased Policing", see 31 Colo. Law. 127 (July 2002). For comment, "Begging to Defer: Lessons in Judicial Federalism from Colorado Search-and-Seizure Jurisprudence", see 76 U. Colo. L. Rev. 865 (2005). For article "The Warrantless Search of Cell Phones", see 42 Colo. Law. 69 (Aug. 2013). For article "Electronic Search Warrants in Colorado", see 44 Colo. Law. 45 (June 2015). For article, "Cell Phones, Passwords, and Search Warrants,", see 44 Colo. Law. 47 (Aug. 2015).

Annotator's note. For further annotations concerning warrantless arrests, see § 16-3-102. For further annotations concerning search and seizure, see part 3 of article 3 of title 16 and Crim. P. 41.

This section is even more restrictive than fourth amendment to the United States Constitution as it provides that probable cause must be supported by oath or affirmation reduced to writing. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People ex rel. Orcutt v. Instantwhip Denver, Inc., 176 Colo. 396, 490 P.2d 940 (1971).

The Colorado proscription against unreasonable searches and seizures protects a greater range of privacy interests than does its federal counterpart. People v. Oates, 698 P.2d 811 (Colo. 1985).

In some instances this section may protect against invasions that the federal constitution would not protect. Derdeyn v. Univ. of Colo., 832 P.2d 1031 (Colo. App. 1991).

With respect to fourth amendment issues, the Colorado and United States Constitutions are co-extensive and Colorado courts will follow federal precedent as well as Colorado precedent. People v. Rodriguez, 945 P.2d 1351 (Colo. 1997); Eddie's Leaf Spring v. PUC, 218 P.3d 326 (Colo. 2009).

Issue may not be raised for first time on appeal. A contention that this section affords broader protection than does its federal counterpart will not be addressed for the first time on appeal. People v. Oynes, 920 P.2d 880 (Colo. App. 1996).

In the absence of a clear statement by the trial court that a suppression ruling is grounded on the Colorado Constitution, as opposed to the United States Constitution, the presumption is that a trial court relied on federal constitutional law in reaching its decision. Where trial court did not so specify, sole issue on appeal was whether the fourth amendment required suppression of evidence. People v. Olivas, 859 P.2d 211 (Colo. 1993).

Two-step inquiry required when an individual challenges as a search a governmental investigative activity that involves an intrusion into that person's privacy: (1) Was the intrusion a search and (2) if so, was it a reasonable search? People v. Santistevan, 715 P.2d 792 (Colo. 1986); People v. Wieser, 796 P.2d 982 (Colo. 1990).

This section protects individuals in the security of their homes. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971).

The fourth amendment protects individuals from unreasonable governmental intrusion provided that they have a reasonable expectation of privacy. Casados v. City & County of Denver, 832 P.2d 1048 (Colo. App. 1992), rev'd on other grounds, 862 U.S. 908, cert. denied, 511 P.2d 1005 (Colo. 1993), 114 S. Ct. 1372, 128 L. Ed. 2d 48 (1994).

The touchstone of fourth amendment analysis is whether a person has a "constitutionally protected reasonable expectation of privacy" in the area or item searched or seized. That determination requires the court to ascertain whether an individual has exhibited a subjective expectation of privacy in the particular place or object in question and whether that subjective expectation is one society recognizes as reasonable. The existence of a legitimate expectation of privacy must be determined after examining all the facts and circumstances in each particular case. Hoffman v. People, 780 P.2d 471 (Colo. 1989); People v. Wimer, 799 P.2d 436 (Colo. App. 1990), cert. denied, 809 P.2d 998 (Colo. 1991).

Protection of reasonable expectation of privacy. The constitutional prohibitions against unreasonable searches and seizures protect those who have a reasonable expectation of privacy. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972); People v. Harfmann, 38 Colo. App. 19, 555 P.2d 187 (1976); People v. Lee, 93 P.3d 544 (Colo. App. 2003).

Where the area of a search was a place where the owner had a reasonable expectation of privacy, then it was a constitutionally protected area where warrantless intrusions are forbidden under the federal and state constitutions. People v. Weisenberger, 183 Colo. 353, 516 P.2d 1128 (1973).

Any governmental action intruding upon an activity or area in which one holds a legitimate expectation of privacy is a "search" that calls into play the protections of the Colorado Constitution. People v. Oates, 698 P.2d 811 (Colo. 1985); People v. Wieser, 796 P.2d 982 (Colo. 1990).

The protections of this section are limited by reasonable expectations of privacy; that is, expectations which the law is prepared to recognize as legitimate. People v. Velasquez, 641 P.2d 943 (Colo.), 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).

Whether an expectation of privacy is "legitimate" is determined by a two-part inquiry: Whether one actually expects that the area or activity subjected to governmental intrusion would remain free of such intrusion, and whether that expectation is one that society is prepared to recognize as reasonable. People v. Oates, 698 P.2d 811 (Colo. 1985); People v. Shorty, 731 P.2d 679 (Colo. 1987); People v. Wimer, 799 P.2d 436 (Colo. App. 1990), cert. denied, 809 P.2d 998 (Colo. 1991); People v. Hillman, 821 P.2d 884 (Colo. App. 1991).

Legitimate expectation of privacy is one that society considers reasonable and whether such legitimate expectation exists is determined after all facts and circumstances of a particular case are examined. People v. Wieser, 796 P.2d 982 (Colo. 1990); People v. Dunkin, 888 P.2d 305 (Colo. App. 1994).

Where, as a result of government surveillance practice, amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with aims of a free and open society, court may require regulations of the government practice by means of a warrant. People v. Oates, 698 P.2d 811 (Colo. 1985).

Whether an expectation of privacy is legitimate depends on objective factors, not the subjective intent of the individual. People v. Rowe, 837 P.2d 260 (Colo. App. 1992).

Determination of expectation of privacy. Whether an expectation of privacy exists is to be resolved by consideration of the totality of the circumstances with respect to the relationship between the person challenging the search and the area searched. People v. Savage, 630 P.2d 1070 (Colo. 1981).

In determining the measure of constitutional protection under this section, the proper inquiry is not whether an individual defendant subjectively expected his ostensible accomplice in crime to preserve the confidentiality of their encounter and conversation; rather, the proper inquiry is whether the defendant's expectation of confidentiality was constitutionally justified. People v. Velasquez, 641 P.2d 943 (Colo.), 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).

When reviewing trial court's suppression ruling, appellate court may only properly consider evidence presented at the suppression hearing and not the evidence and testimony subsequently presented at trial. Moody v. People, 159 P.3d 611 (Colo. 2007).

No objective expectation of privacy in statements not spoken in English. Defendant undertook the risk that he would be understood when he exposed his Spanish language conversation to police officer in interrogation room. Defendant had no reasonable expectation of privacy in those statements even though the statements were recorded without his knowledge. People v. Zamora, 220 P.3d 996 (Colo. App. 2009).

Owner of sealed knapsack. Where owner clearly had an expectation of privacy with regard to his sealed knapsack it was sufficient to invoke constitutional protection against unreasonable police intrusion. People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976).

And tenants in condominium. When tenants in a condominium are entitled to and do believe that their rental has not been exhausted, they possess a sufficient proprietary interest to afford them a reasonable expectation of privacy against a warrantless police intrusion. People v. Bement, 193 Colo. 435, 567 P.2d 382 (1977).

The renter of a hotel or motel room has a legitimate expectation of privacy for the room and its contents during the period of the rental. Stoner v. Cal., 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); People v. Montoya, 914 P.2d 491 (Colo. App. 1995); People v. Lewis, 975 P.2d 160 (Colo. 1999).

Defendant had no reasonable expectation of privacy in, and therefore no standing to challenge entry to, a motel room where the entry was pursuant to the motel's established and posted policy pertaining to check-out time at the end of the rental period, there was no established policy of allowing any grace period giving defendant a reasonable expectation that he would be allowed to remain beyond the check-out time, and the rental period had expired because no one had requested permission for an overtime stay and none had been authorized. People v. Montoya, 914 P.2d 491 (Colo. App. 1995).

Defendant had no reasonable expectation of privacy in the GPS location data transmitted to and collected by a third party. Defendant chose to contract with a private bail bond agent who requested that he wear an ankle monitor and he knew that the primary purpose of the monitor was to track and record his location. Defendant could not reasonably have anticipated that the GPS data would remain free from governmental intrusion. People v. Campbell, 2 018 COA 5, 4 2 5 P.3d 1163.

Defendant had no reasonable expectation of privacy in his cell phone passcode when defendant disclosed the passcode to a police officer, regardless of any limitation placed on the disclosure. Defendant voluntarily disclosed his passcode directly to an officer after his arrest so that the officer could contact defendant's girlfriend. In doing so, defendant failed to manifest a subjective expectation of privacy in the passcode. Even if defendant had a subjective expectation of privacy in the passcode, society would not deem it reasonable, given his willingness to share that information with an officer in these circumstances. Objectively, one should expect that an investigating officer might seek to use such information for investigative purposes. People v. Davis, 2019 CO 24, 438 P.3d 266.

Trial court properly denied motion to suppress statements defendant made to a police officer inside the hotel room where she lived. Defendant conferred on her father the authority to consent to the officer's limited entry into her hotel room in her immediate presence and without her objection. People v. Stock, 2017 CO 80, 397 P.3d 386.

Defendant has a reasonable expectation of privacy in a tent used for habitation when camping on unimproved and unused land that is not fenced or posted against trespassing. People v. Schafer, 946 P.2d 938 (Colo. 1997).

Pockets of person's clothing are areas to which a justifiable expectation of privacy attaches. People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

Car parked in carport behind house. Where defendants had a reasonable expectation of privacy in the car parked under the carport behind the house, the car was a constitutionally protected area where warrantless intrusions are forbidden under the federal and state constitutions. People v. Apodaca, 38 Colo. App. 395, 561 P.2d 351 (1976), aff'd, 194 Colo. 324, 571 P.2d 1109 (1977).

The legitimacy of the defendants' expectation of privacy in their utility records depended on whether defendants exhibited a subjective expectation of privacy in the records and whether that subjective expectation is one society recognizes as reasonable. People v. Dunkin, 888 P.2d 305 (Colo. App. 1994).

Relevant factors in determining whether a certain area is protected as curtilage include: (1) The proximity between the area claimed to be curtilage and the home; (2) the nature of the uses to which the area is put; (3) the steps taken to protect the area from observation; and (4) whether the area is included within an enclosure surrounding the house. Hoffmann v. People, 780 P.2d 471 (Colo. 1989); People v. Wimer, 799 P.2d 436 (Colo. App. 1990), cert. denied, 809 P.2d 998 (Colo. 1991).

Section does not protect individual where he has no reasonable expectation of privacy. Zamora v. People, 175 Colo. 340, 487 P.2d 1116 (1971).

What person knowingly exposes to public, even in home or office, is not protected by this section. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972); People v. McGahey, 179 Colo. 401, 500 P.2d 977 (1972).

Since defendant's arrest for possession of a marijuana-filled water pipe took place in a public garage where anybody could walk in at any time, he was not entitled to a reasonable expectation of privacy and therefore could be arrested without a valid warrant. Zamora v. People, 175 Colo. 340, 487 P.2d 1116 (1971).

Where defendants fled the scene of the crime leaving a car behind, they manifested an intent to abandon the car and whatever expectation of privacy they may have had regarding it. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972).

Defendant minor had no legitimate expectation of privacy with respect to a purse and its contents in the possession of his companion nor with respect to a tire iron voluntarily abandoned before an investigatory stop. People in Interest of D.E.J., 686 P.2d 794 (Colo. 1984).

Although police had neither probable cause nor warrant to search area underneath carpet serving as doormat in front of basement apartment, defendant had no legitimate expectation of privacy in area beneath carpet. People v. Shorty, 731 P.2d 679 (Colo. 1987).

In conducting criminal investigation, police officer may enter those residential areas that are expressly or impliedly held open to casual visitors. People v. Shorty, 731 P.2d 679 (Colo. 1987).

It was reasonable for police to enter the curtilage of a home at 1:30 a.m. without a warrant and to knock on the sliding glass door of a porch to seek permission to enter to conduct a search of the residence. People v. White, 64 P.3d 864 (Colo. App. 2002).

There is no invasion of privacy in the observation of that which is plainly visible to the public. What a person knowingly exposes to the public, even in his own home or office, is not a subject of fourth amendment protection. Hoffman v. People, 780 P.2d 471 (Colo. 1989).

There is no invasion of privacy in the observation of that which is plainly visible to the naked eye from an area which is routinely accessible to the public. People v. Wimer, 799 P.2d 436 (Colo. App. 1990), cert. denied, 809 P.2d 998 (Colo. 1991).

There is no reasonable expectation of privacy in computer files that are made publicly available through a file-sharing program. People v. Phipps, 2 016 COA 190M, 411 P.3d 1157.

No "search" where officer observes property from navigable airspace above. People v. Henderson, 847 P.2d 239 (Colo. App. 1993), aff'd, 879 P.2d 383 (Colo. 1994).

Business premises are protected by this section but a business, by its special nature and voluntary existence, may open itself to intrusions that would not be permissible in a purely private context. People v. Rowe, 837 P.2d 260 (Colo. App. 1992).

Defendant maintained a reasonable expectation of privacy from government intrusion in the back room of a liquor store, an area without public access, where he was the night manager, regardless of the fact that defendant's activities were being recorded via a surveillance system. People v. Galvadon, 103 P.3d 923 (Colo. 2005).

No expectation of privacy exists in shipping records obtained from a private shipping company which revealed only defendant's name and address, the supply company's name, and the number and weights of packages shipped, but did not reveal the contents of the shipments. People v. Beckstrom, 843 P.2d 34 (Colo. App. 1992).

Expectation of privacy in safe. One has a high expectation of privacy in a safe and its contents. People v. Press, 633 P.2d 489 (Colo. App. 1981).

Expectation of privacy in trunk of another. An expectation of privacy in an apartment shared with another person does not extend to a locked suitcase owned by the other person. People v. Whisler, 724 P.2d 648 (Colo. 1986).

Expectation of privacy in garbage placed adjacent to sidewalk for trash collection. An individual has no expectation of privacy in garbage placed adjacent to sidewalk for trash collection since such garbage is readily accessible to the public. People v. Hillman, 834 P.2d 1271 (Colo. 1992); People v. Laurent, 194 P.3d 1053 (Colo. App. 2008).

Expectation of privacy in a tax return and supporting documentation in the custody of a tax preparer. To overcome a taxpayer's reasonable expectation of privacy, a search warrant must show probable cause to believe that the tax records contain evidence of criminal wrongdoing by that taxpayer or the tax preparer. People v. Gutierrez, 222 P.3d 925 (Colo. 2009).

Partial obstruction of view does not create reasonable expectation of privacy. Where defendant had placed plastic over a portion of a shed containing marijuana plants, but contents were clearly visible from public airspace above, officer's observation of shed from a helicopter not shown to have been flying illegally was not a "search". People v. Henderson, 847 P.2d 239 (Colo. App. 1993), aff'd, 879 P.2d 383 (Colo. 1994).

Expectation of privacy in records held by bank. An individual has an expectation of privacy in records of his financial transactions held by a bank in Colorado. Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980); People v. Lamb, 732 P.2d 1216 (Colo. 1987).

The government does not have to notify a bank customer of service of a grand jury subpoena of his records. In re E. Nat'l Bank, 517 F. Supp. 1061 (D. Colo. 1981).

During the course of a criminal prosecution, the prosecution may compel production of telephone and bank records through the use of a subpoena duces tecum, so long as the defendant has the opportunity to challenge the subpoena for lack of probable cause. Use of a subpoena duces tecum for such records is not an unreasonable search and seizure provided that it is supported by probable cause and is properly defined and executed. People v. Mason, 989 P.2d 757 (Colo. 1999).

University's random, suspicionless, urinalysis drug-testings are unconstitutional searches. Testing of athletes is a significant intrusion and is not reasonable absent significant public safety or national security interests or without voluntary consent. Univ. of Colo. v. Derdeyn, 863 P.2d 929 (Colo. 1993).

To protect a bank customer's expectation of privacy in bank records, the customer must be given notice of judicial or administrative subpoenas prior to their execution. People v. Lamb, 732 P.2d 1216 (Colo. 1987).

Availability of a hearing subsequent to the production and disclosure of bank records pursuant to judicial or administrative subpoenas is inadequate to protect a customer's privacy right in the records since once the right has been violated there is no effective way to restore it. People v. Lamb, 732 P.2d 1216 (Colo. 1987).

Bank may notify customer of subpoenaed records. A bank may, if it chooses, notify a customer that the customer's bank records have been subpoenaed. If a bank so notifies a customer, no sustainable prosecution for obstructing justice can follow; if a bank does not notify the customer, it risks the chance of a lawsuit in state court for omitting the notice. In re E. Nat'l Bank, 517 F. Supp. 1061 (D. Colo. 1981).

Standing to question government's access to bank records. Once a court allows intervention in a § 39-21-112 proceeding, which deals with the filing of annual returns to the department of revenue, it follows that a taxpayer with an expectation of privacy in his bank records has standing to raise the legitimacy of governmental access to the records in a motion to quash a subpoena for the records. Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980).

Individual defendant has standing to challenge failure of the commissioner of securities to give defendant notice of the issuance of administrative subpoenas for corporate bank account records during investigation into securities law violations by the commissioner which was directed at both the defendant and the corporation. People v. Lamb, 732 P.2d 1216 (Colo. 1987).

For in camera examination of subpoenaed bank records, see Pignatiello v. District Court, 659 P.2d 683 (Colo. 1983).

Telephone numbers dialed on home telephone. A telephone subscriber has a legitimate expectation that information relating to telephone numbers dialed on his home telephone will remain private; and, in the absence of exigent circumstances, law enforcement officers must obtain a search warrant prior to the installation of a pen register. People v. Sporleder, 666 P.2d 135 (Colo. 1983).

The requirement of obtaining a search warrant prior to the installation of a pen register is applied retroactively in People v. Timmons, 690 P.2d 213 (Colo. 1984).

During the course of a criminal prosecution, the prosecution may compel production of telephone and bank records through the use of a subpoena duces tecum, so long as the defendant has the opportunity to challenge the subpoena for lack of probable cause. Use of a subpoena duces tecum for such records is not an unreasonable search and seizure provided that it is supported by probable cause and is properly defined and executed. People v. Mason, 989 P.2d 757 (Colo. 1999).

Electronic beeper. The government's installation of an electronic beeper inside a commercially-purchased sealed drum of chemicals violates the legitimate expectation of privacy of an individual who has a proprietary or possessory interest in the drum, and, in the absence of a warrant, such installation is an illegal search. People v. Oates, 698 P.2d 811 (Colo. 1985).

Tablet computer. A warrant is generally required before a search of information on a tablet computer, even when the tablet is seized incident to arrest. People v. Folsom, 2 017 COA 146M, 431 P.3d 65 2 .

Bullets fired into front lawn. Where defendant openly, in daylight, and before witnesses, fires bullets into a front lawn, the defendant can assert no reasonable expectation of privacy with respect to the bullets. People v. Morgan, 681 P.2d 970 (Colo. App.), cert. denied, 469 U.S. 881, 105 S. Ct. 248, 83 L. Ed. 2d 185 (1984).

Defendant had an interest in his wife's motel room, even during his absence. As a result, the defendant had a proprietary interest in the room and had standing to object to a search of such room. People v. Fox, 862 P.2d 1000 (Colo. App. 1993).

Expectation of privacy in toll records. A telephone subscriber has a legitimate expectation that toll records that reflect individually billed calls will remain private, and law enforcement officers generally must obtain a search warrant prior to the searches of toll records. People v. Corr, 682 P.2d 20 (Colo.), cert. denied, 469 U.S. 855, 105 S. Ct. 181, 83 L. Ed. 2d 115 (1984).

Utility records are not protected from disclosure by this section since society does not view the expectation of privacy in utility records as a reasonable one and, unlike telephone and bank records, utility records can be obtained by other members of the public. People v. Dunkin, 888 P.2d 305 (Colo. App. 1994).

Expectation of privacy in records of stockbroker's account. An individual has an expectation of privacy in the records of his stockbroker's account that is protected by the Colorado Constitution. People v. Fleming, 804 P.2d 231 (Colo. App. 1990).

Expectation of privacy in garbage placed on the curb. An individual has an expectation of privacy which society would regard as reasonable in trash left for collection at the curbside. People v. Hillman, 821 P.2d 884 (Colo. App. 1991).

Ultraviolet light examination of hands. A person has a reasonable expectation that police officers will not subject his hands to an ultraviolet lamp examination to discover incriminating evidence not otherwise observable. People v. Santistevan, 715 P.2d 792 (Colo. 1986).

A trespass is not the equivalent of a search. The presence or absence of a physical trespass by police has little or no relevance to the question of whether society would recognize an asserted privacy interest as reasonable. People v. Wimer, 799 P.2d 436 (Colo. App. 1990), cert. denied, 809 P.2d 998 (Colo. 1991).

Prisoners have little, if any, reasonable expectation of privacy while incarcerated. People v. Salaz, 953 P.2d 1275 (Colo. 1998); People v. Lee, 93 P.3d 544 (Colo. App. 2003).

Residents in a residential community corrections detention facility have no reasonable expectation of privacy in their clothing. People v. Triplett, 2 016 COA 87, 411 P.3d 1054.

A pretrial detainee's right to be free from unreasonable searches and seizures is not violated when the detainee's outgoing correspondence is seized and copied by correctional officials pursuant to an established practice that is reasonable and is no more intrusive than necessary to protect a legitimate governmental interest in institutional security. People v. Whalin, 885 P.2d 293 (Colo. App. 1994).

Section is intended as restraint upon activities of sovereign authority. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

This section gives protection against unlawful searches and seizures by governmental agencies. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

The guarantees against unreasonable searches and seizures have been applied to both administrative and criminal searches. Condon v. People, 176 Colo. 212, 489 P.2d 1297 (1971).

The exclusionary rule applies to forfeiture actions. People v. Lot 23, 707 P.2d 1001 (Colo. App. 1985), aff'd in part and rev'd in part on other grounds, 735 P.2d 184 (Colo. 1987).

And section not intended to be limitation upon other than governmental agencies, for the purpose of this section is to secure the citizen in the right to unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly issued. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

Constitutional prohibitions on searches and seizures do not in general require exclusion of evidence seized by private parties. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971); People v. Henderson, 38 Colo. App. 308, 559 P.2d 1108 (1976).

Test where search or seizure by private person. The test as to whether a "search" or "seizure" which falls within the scope of constitutional protection has occurred is whether the private person who is doing the searching, in light of all the circumstances of the case, must be regarded as having acted as an "instrument" or agent of the state. People v. Henderson, 38 Colo. App. 308, 559 P.2d 1108 (1976).

Officers' presence in vicinity does not necessarily constitute participation in the search and seizure by the private person. People v. Henderson, 38 Colo. App. 308, 559 P.2d 1108 (1976).

The fact that the person conducting a search might have intended to assist law enforcement does not transform him or her into a law enforcement agent so long as he or she had a legitimate independent motivation for engaging in the challenged conduct. The mere presence of officers, absent some form of participation in the search, did not establish an agency relationship. People v. Holmberg, 992 P.2d 705 (Colo. App. 1999).

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).

Where hotel employee not acting as agent of police. Where police do not suggest or instigate an inspection by a hotel employee, nor accompany her when she enters a room, her actions are her own idea and not those of the state for she is not acting as an agent or an alter ego of the police. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

Standard for determining whether 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).

One asserting right to privacy must establish he was victim of invasion. Concomitant with the assertion of the right to privacy is the requirement that the one who asserts the right must establish that he was the victim of an invasion of his privacy. Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972).

Before a defendant is entitled to an order of suppression, he first must establish that the challenged search violated a privacy interest which the fourth amendment is designed to protect. People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Settles, 685 P.2d 183 (Colo. 1984).

Prosecutor bears no burden at suppression hearing to prove that defendant was the victim of the claimed illegal police conduct because, when a defendant files a motion to suppress claiming his or her fourth amendment rights were violated, this initial allegation suffices to establish that he or she was the victim or aggrieved party of the alleged invasion of privacy. People v. Jorlantin, 196 P.3d 258 (Colo. 2008).

Person suspected of being insane has rights under section. Every person, including those suspected of being insane, has certain fundamental constitutional rights. Not the least of these is the one mentioned in this section. Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953).

Standing to question legality of seizure. Where defendants were legitimately on the premises and the evidence seized is proposed to be used against them, they have standing to question the legality of the seizure, and thus, the legitimacy of the presence of the police in the house. People v. Godinas, 176 Colo. 391, 490 P.2d 945 (1971).

A person may challenge the constitutional validity of a search only if he has a legitimate expectation of privacy in the invaded place. People v. Savage, 630 P.2d 1070 (Colo. 1981).

Property law concepts are not necessarily determinative of standing to challenge police activity under the fourth amendment as the inquiry extends beyond ownership or possession of the property seized to considerations of whether the defendant had a reasonable expectation of privacy in the area searched. People v. Holder, 632 P.2d 607 (Colo. App. 1981).

Passenger or hitchhiker has no property or possessory interest in an automobile and no legitimate expectation of privacy, but a passenger who has permission of the owner to use the car does have a legitimate expectation of privacy. People v. Naranjo, 686 P.2d 1343 (Colo. 1984).

No standing. Where the defendant was found unconscious inside an automobile which upon a search was found to contain the deceased's body and it was not an instance where the basis for defendant's prosecution was possession of the vehicle, the defendant did not have automatic standing to challenge the vehicle's search and seizure. People v. Trusty, 183 Colo. 291, 516 P.2d 423 (1973).

Nor standing to object to admission of evidence. A person who is only aggrieved by the admission of evidence illegally seized from a third person lacks standing to object. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

One not legitimately on premises has no standing to move to suppress the fruits of a search and seizure of those premises. People v. Trusty, 183 Colo. 291, 516 P.2d 423 (1973).

Fourth amendment rights are personal and the suppression of the products of an unconstitutional search can be urged only by one whose rights were violated, not by those who are aggrieved solely by the admission of the damaging evidence, even if they be codefendants. People v. Henry, 631 P.2d 1122 (Colo. 1981).

Questions of standing and reasonableness of search merge into one: Whether the government officials violated any legitimate expectation of privacy held by the defendant. People v. Spies, 200 Colo. 434, 615 P.2d 710 (1980).

In order for a defendant to have standing to challenge the constitutionality of a governmental search, he or she must demonstrate a legitimate expectation of privacy in the areas searched or the items seized. Defendant bears the burden to establish standing, and the issue must be resolved in view of the totality of the circumstances. People v. Montoya, 914 P.2d 491 (Colo. App. 1995); 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.

Appellate courts may address issues of standing sua sponte, regardless of whether the prosecution may be deemed to have waived its right to address the question. Appellate court, however, may not do so when the factual record was undeveloped and could not be supplemented with reliable testimony on remand given the passage of time. Moody v. People, 159 P.3d 611 (Colo. 2007).

Lawfulness of warrantless arrest determined by state law. 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).

Lawfulness of search and seizure determined by trial judge. There is no constitutional requirement that the question of the lawfulness of the search and seizure be submitted to a jury. It remains a question of law which must be determined by the trial judge and, in this state, by the trial judge only. Jones v. People, 167 Colo. 153, 445 P.2d 889 (1968).

As courts to guard personal security. Courts still retain their traditional responsibility to guard against police conduct which trenches upon personal security without the objective evidentiary justification which the constitution requires. People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970).

Mere possibility of prejudice is insufficient to warrant reaching merits of constitutionality of an inventory search. People v. Thomas, 189 Colo. 490, 542 P.2d 387 (1975).

And acquittal moots question. Where defendant challenged the constitutionality of the inventory search of his car and the use of evidence obtained as a result of the search at his trial, the issue of constitutionality of the search was moot because the fruits of the search were used primarily to prove that the defendant was guilty of burglary on which charges he was acquitted. People v. Thomas, 189 Colo. 490, 542 P.2d 387 (1975).

Unlawful conduct of arresting officers does not destroy court's criminal jurisdiction. Unlawful conduct of arresting officers, or other persons holding public office, may have certain effects upon admissibility of evidence, but it does not destroy jurisdiction of the court to try a criminal charge lodged against a person brought before it. DeBaca v. Trujillo, 167 Colo. 311, 447 P.2d 533 (1968).

And illegal arrest of one charged with crime is no bar to his prosecution if all other elements necessary to give a court jurisdiction to try accused are present, a conviction in such a case being unaffected by such unlawful arrest. DeBaca v. Trujillo, 167 Colo. 311, 447 P.2d 533 (1968).

Preliminary examination not prerequisite to prosecution by information. There is no constitutional requirement making a preliminary examination a prerequisite to a prosecution by information. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).

Nor is sworn complaint jurisdictional prerequisite to prosecution. There is no constitutional requirement that a sworn complaint is a jurisdictional prerequisite to prosecution of a misdemeanor charge. Stubert v. County Court, 163 Colo. 535, 433 P.2d 97 (1967).

And nothing requires that "summons and complaint" be verified where the summons and complaint is simply the method by which criminal proceedings are instituted against a person already validly arrested, and a warrant for arrest does not issue. Stubert v. County Court, 163 Colo. 535, 433 P.2d 97 (1967).

Insofar as the fourth amendment to the constitution of the United States is concerned, a criminal information need not be verified. Stubert v. County Court, 163 Colo. 535, 433 P.2d 97 (1967).

Unless it is to serve as basis for issuance of arrest warrant. Stubert v. County Court, 163 Colo. 535, 433 P.2d 97 (1967).

The oath or affirmation required by this section is an essential prerequisite to an arrest, whether a preliminary examination is to be had or the warrant is to issue on an information. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).

Affidavit is made essential in case preliminary examination has not been had, in order to comply with the requirements of this section. Noble v. People, 23 Colo. 9, 45 P. 376 (1896).

Technical requirements and elaborate specificity are not required in drafting of affidavits for search warrants. People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973).

Although warrant issues only on charge under oath in writing. To justify a warrant there must be a charge under oath, reduced to writing. Lustig v. People, 18 Colo. 217, 32 P. 275 (1893).

For other cases dealing with affidavits in the filing of informations, see Ausmus v. People, 47 Colo. 167, 107 P. 204 (1910); Curl v. People, 53 Colo. 578, 127 P. 951 (1912); Solt v. People, 130 Colo. 1, 272 P.2d 638 (1954).

Section has no application to ordinary cases of production of documents under a subpoena duces tecum. Eykelboom v. People, 71 Colo. 318, 206 P. 388 (1922).

Contemporaneous objection rule applies to search and seizure issues, and the failure to raise the objection of an illegal search and seizure by proper objection at the trial level is tantamount to a waiver. Brown v. People, 162 Colo. 406, 426 P.2d 764 (1967).

The exclusionary rule does not apply to a search conducted in objectively reasonable reliance on binding appellate precedent -- even when the precedent is later overturned. People v. Barry, 2 015 COA 4, 349 P.3d 1139.

The exclusionary rule is a proper remedy for a violation of this section. The court explicitly embraces the exclusionary rule as a proper remedy for search and seizure violations. People v. McKnight, 2019 CO 36, 446 P.3d 397.

Absent egregious police misconduct, exclusionary rule is inapplicable to probation revocation proceedings. People v. Ressin, 620 P.2d 717 (Colo. 1980).

Application of exclusionary rule in a dependency and neglect case requires the court to balance the deterrent benefits of applying the rule against the societal cost of excluding relevant evidence. People ex rel. A.E.L., 181 P.3d 1186 (Colo. App. 2008).

Here, applying the rule would have a high societal cost in terms of protecting child welfare interests. Therefore, the court did not err in denying mother's motion to suppress evidence. People ex rel. A.E.L., 181 P.3d 1186 (Colo. App. 2008).

Oral statement prima facie inadmissible where reason for detention was an attempt to obtain an inculpatory statement from defendant. People v. Stark, 682 P.2d 1240 (Colo. App. 1984).

Later statement admissible if obtained by a means sufficiently distinct from the illegality. Relevant factors are: Intervening Miranda v. Arizona, 384 U.S. 436 (1966), warnings and valid waiver; temporal proximity of illegal arrest and statement; intervening circumstances; and purpose and flagrancy of any official misconduct. People v. Stark, 682 P.2d 1240 (Colo. App. 1984).

Applied in Ratcliff v. People, 22 Colo. 75, 43 P. 553 (1896); Laffey v. People, 55 Colo. 575, 136 P. 1031 (1913); Potter v. Armstrong, 110 Colo. 198, 132 P.2d 788 (1942); Lucas v. District Court, 140 Colo. 510, 345 P.2d 1064 (1959); Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965); Garcia v. People, 160 Colo. 220, 416 P.2d 373 (1966); People v. Aguilar, 173 Colo. 260, 477 P.2d 462 (1970); People v. Leahy, 173 Colo. 339, 484 P.2d 778 (1970); People v. Muniz, 198 Colo. 194, 597 P.2d 580 (1979).

II. PROBABLE CAUSE.

A. In General.

Constitutionality of an arrest is measured by probable cause. People v. Magoon, 645 P.2d 286 (Colo. 1982).

The constitutional requirement that arrests be based upon probable cause serves two purposes: To protect citizens from rash and unreasonable interferences with privacy and to give fair leeway for enforcing the law in the community's protection. People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Higbee, 802 P.2d 1085 (Colo. 1990).

It is only upon showing of probable cause that 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 for making an official seizure under the constitution. People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971).

To support issuance of arrest warrant, complaint must comply with probable cause requirements of this section, the fourth amendment to the United States Constitution, and Crim. P. 3 and 4 (a). Scott v. People, 166 Colo. 432, 444 P.2d 388 (1968); People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970); People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971).

For a search warrant to be valid under both the United States and state constitutions, a warrant must meet three requirements: (1) It must have been issued by a neutral, disinterested magistrate; ( 2 ) those seeking the warrant must have demonstrated to the magistrate their probable cause to believe that the evidence sought would aid in a particular apprehension or conviction for a particular offense; and (3) the warrant must particularly describe the things to be seized as well as the place to be searched. People v. Harris, 2 016 COA 159, 405 P.3d 361.

No search warrant may issue without showing of probable cause affirmed in writing. Under both this section and the fourth amendment of the United States Constitution, 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).

Warrant issued without showing of probable cause violates constitutional standards. A search warrant which is routinely issued at the request of the accusing officer, without the slightest showing of probable cause, is issued in violation of long-established fundamental constitutional standards, and any evidence seized under its authority should be excluded from evidence in the trial court unless there is other legal basis for its admission. Brown v. Patterson, 275 F. Supp. 629 (D. Colo. 1967), aff'd, 393 F.2d 733 (10th Cir. 1968).

Substance of all definitions of probable cause is a reasonable ground for belief of guilt. People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971).

Courts have uniformly required an objective standard for determining probable cause. People v. Davis, 903 P.2d 1 (Colo. 1995).

The probable cause standard is a practical, nontechnical conception and is measured by reasonableness, not mathematical probability. People v. Rayford, 725 P.2d 1142 (Colo. 1986).

Because the standard of probable cause is substantially less than the quantum of evidence needed to support a conviction, only reasonable grounds, not a mathematical probability, to believe that the defendant participated in the crime in question must be demonstrated. Banks v. People, 696 P.2d 293 (Colo. 1985); People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994).

As the term suggests, probable cause deals with probabilities, not certainties. People v. Washington, 865 P.2d 145 (Colo. 1994).

"Probable cause" not measured by certainty. It is not necessary that facts establishing probable cause for arrest rise to a level of certainty. People v. Hearty, 644 P.2d 302 (Colo. 1982); People v. Wirtz, 661 P.2d 300 (Colo. App. 1982); People v. Villiard, 679 P.2d 593 (Colo. 1984).

Probable cause for a search, as with probable cause to arrest, depends upon probabilities, not certainties, and involves a level of knowledge grounded in the practical considerations of everyday life on which reasonable and prudent persons act. People v. Rayford, 725 P.2d 1142 (Colo. 1986); People v. Lubben, 739 P.2d 833 (Colo. 1987).

Suspicion alone does not amount to probable cause. People v. Quintero, 657 P.2d 948 (Colo.), 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).

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. Bartley v. People, 817 P.2d 1029 (Colo. 1991); People v. Delgado, 832 P.2d 971 (Colo. App. 1991); People v. Leftwich, 869 P.2d 1260 (Colo. 1994); Henderson v. People, 879 P.2d 383 (Colo. 1994); People v. Fortune, 930 P.2d 1341 (Colo. 1997); People v. Pacheco, 175 P.3d 91 (Colo. 2006).

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).

Probable cause for issuance of a subpoena duces tecum for obtaining telephone and bank records exists if there is a reasonable likelihood that the evidence sought exists and that it would link the defendant to the crime charged. People v. Mason, 989 P.2d 757 (Colo. 1999).

The Colorado Constitution presumes that an arrest for a criminal violation when predicated upon probable cause is permissible for any crime, not just a serious crime. People v. Triantos, 55 P.3d 131 (Colo. 2002).

Probable cause to arrest exists when, under the totality of the circumstances at the time of arrest, objective facts and circumstances available to a person of reasonable caution justify the belief that a crime has been or is being committed by the person who has been or is being arrested. People v. King, 16 P.3d 807 (Colo. 2001); People v. Brown, 217 P.3d 1252 (Colo. 2009).

Probable cause for an arrest does not exist if the police have no information that a crime has, in fact, been committed. People v. Quintero, 657 P.2d 948 (Colo. 1983); People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994); People v. King, 16 P.3d 807 (Colo. 2001).

Probable cause for a warrantless arrest does not require specific information that a particular crime has been committed. People v. McCoy, 870 P.2d 1231 (Colo. 1994).

To support issuance of search warrant probable cause and oath or affirmation particularly describing the place and the objects to be seized are required. People v. Leftwich, 869 P.2d 1260 (Colo. 1994); Henderson v. People, 879 P.2d 383 (Colo. 1994).

A search may be reasonable despite the absence of individualized probable cause in limited circumstances if the privacy interests involved are minimal and if the compelling governmental interest would be placed in jeopardy by a requirement of individualized probable cause. Derdeyn v. Univ. of Colo., 832 P.2d 1031 (Colo. App. 1991).

A university's interest in securing a drug-free athletic program does not constitute a compelling state interest. There are no public safety or law enforcement interests that are served by such sports program and the urine testing program at issue is unconstitutional. Derdeyn v. Univ. of Colo., 832 P.2d 1031 (Colo. App. 1991).

Existence of outstanding arrest warrant provides prima facie showing of probable cause, although the person arrested may challenge the validity of the arrest warrant at a post-arrest probable cause hearing. People v. Gouker, 665 P.2d 113 (Colo. 1983).

An outstanding arrest warrant from another jurisdiction may provide the probable cause needed to make an arrest. People v. Gouker, 665 P.2d 113 (Colo. 1983).

Outstanding arrest warrant from another jurisdiction constituted probable cause for defendant's arrest even though warrant contain "no extradition" provision. People v. Thompson, 793 P.2d 1173 (Colo. 1990).

Same constitutional probable cause standards 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 these standards are applicable 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).

The same constitutional standards for determining probable cause apply whether a search or an arrest is being made by the police. People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980).

And standards applicable whether or not warrant obtained. 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 must be present for each warrant or 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).

Probable cause permits officers to obtain a warrant to search premises and to seize property. Hoffman v. People, 780 P.2d 471 (Colo. 1989); People v. Taube, 843 P.2d 79 (Colo. App. 1992).

Probable cause must exist in order for warrantless arrest to be valid. People v. Thompson, 793 P.2d 1173 (Colo. 1990).

The showing of probable cause necessary to secure a warrant may vary with the object and intrusiveness of the search, but the necessity for a warrant persists. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

Probable cause required for warrantless searches in exigent circumstances. 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).

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); People v. Gonzales, 186 Colo. 48, 525 P.2d 1139 (1974).

Violation of traffic ordinance does not establish probable cause for warrantless search for evidence of an unrelated criminal offense. People v. Goessl, 186 Colo. 208, 526 P.2d 664 (1974).

The odor of marijuana is relevant to the totality of the circumstances test and can contribute to a probable cause determination even though possession of one ounce or less of marijuana is legal. There was probable cause to search a vehicle for illegal drugs because of the two occupants' different stories about their time in Colorado, their "extreme nervousness", the strong odor of raw marijuana, and the K-9 unit's alert at the rear of the vehicle. People v. Zuniga, 2016 CO 52, 372 P.3d 1052.

A canine alert for drugs is relevant to the totality of the circumstances even though possession of a small amount of marijuana is legal. Considering the canine alert, the fact that the defendant had two cell phones, and that he acted unusually nervous and initially gave an inconsistent explanation of his travels, there was probable cause to search the trunk of defendant's vehicle. People v. Cox, 2017 CO 8, 401 P.3d 509.

Not all drug arrests give rise to exigent circumstances thereby permitting warrantless, "security" searches. People v. Barndt, 199 Colo. 51, 604 P.2d 1173 (1980).

State must prove probable cause for warrantless arrest or search. The burden of proving probable cause in justification of a warrantless arrest and search is upon the state. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994).

The burden is upon the state at the suppression hearing to establish that probable cause existed which would justify the warrantless search of the defendant's person. People v. Ware, 174 Colo. 419, 484 P.2d 103 (1971).

The burden of proving the existence of probable cause for an arrest without a warrant is on the prosecution. People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971); Stork v. People, 175 Colo. 324, 488 P.2d 76 (1971); People v. Vaughns, 175 Colo. 369, 489 P.2d 591 (1971); DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972); Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972); People v. Schreyer, 640 P.2d 1147 (Colo. 1982); People v. Roybal, 655 P.2d 410 (Colo. 1982); People v. Foster, 788 P.2d 825 (Colo. 1990); People v. Diaz, 793 P.2d 1181 (Colo. 1990); People v. McCoy, 832 P.2d 1043 (Colo. App. 1992).

Probable cause for valid arrest is a reasonable ground of suspicion, supported by circumstances sufficiently strong to warrant a cautious man to believe that an offense has been or is being committed by the person arrested. Scott v. People, 166 Colo. 432, 444 P.2d 388 (1968); People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970).

Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonable 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. People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971); People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971); Finley v. People, 176 Colo. 1, 488 P.2d 883 (1971); People v. Thompson, 185 Colo. 208, 523 P.2d 128 (1974); People v. Chavez, 632 P.2d 574 (Colo. 1981); People v. Bustam, 641 P.2d 968 (Colo. 1982); People v. Rueda, 649 P.2d 1106 (Colo. 1982); People v. Quintero, 657 P.2d 948 (Colo.), 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); People v. Nygren, 696 P.2d 270 (Colo. 1985); People v. Diaz, 793 P.2d 1181 (Colo. 1990); People v. McCoy, 870 P.2d 1231 (Colo. 1994).

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); People v. Schreyer, 640 P.2d 1147 (Colo. 1982); People v. Villiard, 679 P.2d 593 (Colo. 1984); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Drake, 735 P.2d 1257 (Colo. 1990).

The fact that a jury later acquitted defendant of crime does not require a conclusion that the police lacked probable cause to arrest defendant on that charge. People v. Couillard, 131 P.3d 1146 (Colo. App. 2005).

The information relied upon to justify a warrantless arrest and search must be more than rumor or suspicion; however, it need not be of that quality and quantity necessary to satisfy beyond a reasonable doubt. It 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. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).

Probable cause for an arrest without a warrant exists where the facts available to a reasonably cautious officer at the moment of the arrest warrant his belief that an offense had been or is being committed. People v. Vincent, 628 P.2d 107 (Colo. 1981); People v. Quintana, 701 P.2d 1264 (Colo. App. 1985); People v. Tufts, 717 P.2d 485 (Colo. 1986); People v. Foster, 788 P.2d 825 (Colo. 1990).

In the case of multiple suspects, for each of whom there are reasonable grounds to believe they participated in a particular criminal offense, probable cause to search means no more than a showing of reasonable grounds to believe incriminating evidence is present on the premises to be searched. People v. Hearty, 644 P.2d 302 (Colo. 1982).

The probable cause threshold for a warrantless arrest is met when there are facts and circumstances sufficient to cause a person of reasonable caution to believe that at the time of the arrest an offense has been or is being committed by the person to be arrested. People v. Rayford, 725 P.2d 1142 (Colo. 1986); People v. Thompson, 793 P.2d 1173 (Colo. 1990).

Probable cause to arrest exists when, under the totality of the circumstances, the objective facts and circumstances warrant the belief by a reasonable and prudent person, in light of that person's training and experience, that an offense has been committed and that the defendant committed it. People v. McCoy, 870 P.2d 1231 (Colo. 1994); People v. McKay, 10 P.3d 704 (Colo. App. 2000).

Based on the totality of the facts and circumstances, officer reasonably concluded defendant was the driver of the car. The facts were the license plate on the car matched the report of the vehicle that caused the accident, defendant's breath smelled of alcohol, and the driver's seat was pulled too far forward for a six-foot tall person to be driving the car as defendant claimed. The circumstances were that defendant was the only one linked to the car when the officer arrived on the scene and the other person at the scene had not seen anyone else around the car except for the defendant. Those facts and circumstances are more than enough to establish probable cause for the arrest, so the evidence seized as a result of the arrest is admissible at trial. People v. Castaneda, 249 P.3d 1119 (Colo. 2011).

The absence of the arresting officer's testimony at a suppression hearing does not necessarily preclude a finding that the officer had probable cause to arrest. People v. Holmberg, 992 P.2d 705 (Colo. App. 1999).

While it is not necessary that the arresting officer possess knowledge of facts sufficient to establish guilt, more than mere suspicion is required to provide probable cause for arrest. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978); People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994).

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).

The determination of when facts cross the line from reasonable suspicion to probable cause is difficult. That line necessarily must be drawn by an act of judgment formed in the light of the particular situation and with account taken of all the circumstances. People v. McCoy, 870 P.2d 1231 (Colo. 1994).

Whenever detention by police officer is more than brief, there is an arrest which must be supported by probable cause. People v. Schreyer, 640 P.2d 1147 (Colo. 1982).

Where purpose and character of investigatory stop exceeds what is reasonable in light of the circumstances, there is an arrest which requires probable cause. People v. Stark, 682 P.2d 1240 (Colo. App. 1984).

Investigatory stop may be effected with guns drawn if it is reasonable under the circumstances. People v. Cooper, 731 P.2d 781 (Colo. App. 1986).

Where police officers wanted to question a parole violator in connection with a sexual assault involving use of a shotgun and handgun, officers could effectuate an investigatory stop with their weapons drawn to determine if one of the two men detained was the violator. People v. Cooper, 731 P.2d 781 (Colo. App. 1986).

Mere association with guilty persons does not amount to probable cause to arrest. People v. Henderson, 175 Colo. 400, 487 P.2d 1108 (1971).

Physical presence in an automobile, in and of itself, does not provide probable cause to arrest, for guilt by association has never been an acceptable rationale and it does not constitute probable cause to arrest. Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972).

Mere arrival of person at residence where shipment of marijuana is to be delivered is insufficient to provide probable cause to believe that the person has committed a crime or that a search of his car will reveal the presence of narcotic drugs. People v. Henderson, 175 Colo. 400, 487 P.2d 1108 (1971).

Mere presence of passenger in truck transporting motorcycle which officer believed to be stolen did not constitute probable cause for passenger to be arrested for stealing motorcycle. People v. Foster, 788 P.2d 825 (Colo. 1990).

Mere fact that individual may have been at the same convenience store on the previous day selling drugs is not sufficient evidence to establish probable cause for loitering. People v. Davis, 903 P.2d 1 (Colo. 1995).

Relationship with person alleged to have participated in forgery is not sufficient to establish probable cause to arrest. People v. Stark, 682 P.2d 1240 (Colo. App. 1984).

Defendant's arrest was not supported by probable cause and was unlawful since information that an individual is attempting to sell jewelry at a price substantially below market value can give rise to a reasonable suspicion that a crime has been committed but does not, without other information from which it may reasonably be inferred that the jewelry is illegally in the seller's possession, constitute probable cause for arrest. People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994).

Investigation and surveillance may be carried out without probable cause. So long as investigation and surveillance activity does not constitute an invasion of privacy constituting an infringement upon constitutional rights, then no probable cause requirement need be met to initiate and carry out the investigation and surveillance activities. People v. Snelling, 174 Colo. 397, 484 P.2d 784 (1971); People v. McGahey, 179 Colo. 401, 500 P.2d 977 (1972).

A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974).

"Fellow officer" rule provides that an arresting officer who does not personally possess sufficient information to constitute probable cause may nevertheless make a warrantless arrest if (1) he acts upon the direction or as a result of a communication from a fellow officer, and (2) the police, as a whole, possess sufficient information to constitute probable cause. People v. Thompson, 793 P.2d 1173 (Colo. 1990); People v. Washington, 865 P.2d 145 (Colo. 1994); People v. Fears, 962 P.2d 272 (Colo. App. 1997); People v. Swietlicki, 2015 CO 67, 361 P.3d 411.

Trial court correctly found the information contained in the affidavit, when analyzed under the totality of the circumstances test, established probable cause to search the premises. The corroborating circumstances of the same license plate and presence of persons 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 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 trailer. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

The totality of the circumstances supported a finding of probable cause for the search warrant. There was sufficient corroboration of the information in the affidavit to overcome the fact the affiant was a first-time informant. People v. Warner, 251 P.3d 567 (Colo. App. 2010).

The fact that the police failed to corroborate evidence directly related to illegal conduct is not necessarily fatal to a finding of probable cause. The verification of the noncriminal facts provided by the informant, considered together with the indicia of reliability and self-verifying details of the informant's information, allows the probable cause determination to be upheld. People v. Turcotte-Schaeffer, 843 P.2d 658 (Colo. 1993).

Following an illegal stop or attempted stop, probable cause for arrest existed when the defendant responded with new, distinct crimes by driving away at speeds up to 45 miles per hour in a residential neighborhood, twice swerving the car towards the police officer's car to hit it, and rolling out of the car while it was moving, leaving the car to crash into and damage a garage. Defendant's responses were new crimes that broke the chain of causation and dissipated any taint from the first arguably unlawful attempted stop. People v. Smith, 870 P.2d 617 (Colo. App. 1994).

Police officers had articulable and reasonable basis for suspecting criminal activity and initiating a valid investigatory detention, and had a reasonable basis for expanding the scope of the detention for the limited purpose of determining whether the defendant was reaching for a weapon. Facts presented to police that defendant paid for four one-way airline tickets to "source city" for illicit drugs with currency in small denominations and hesitated in providing surnames of passengers were consistent with a drug courier profile. Such profile was confirmed by the police upon observing the defendant and his companions arrive at the airport with only carry-on baggage. Upon the officers' request for identification the defendant's conduct caused the police to be concerned that the defendant was reaching for a weapon. In addition, the officers believed defendant was the subject of an outstanding warrant. People v. Perez, 852 P.2d 1297 (Colo. App. 1992).

Reasonable basis to stop suspect. A law enforcement officer is legally justified to approach a vehicle that is in violation of state statute, irrespective of the officer's subjective intent for contacting the vehicle. People v. Cherry, 119 P.3d 1081 (Colo. 2005).

Probable cause for warrantless arrest of defendant existed when officer shined flashlight into parked vehicle and observed defendant holding cash and a small plastic bag containing a white powdery substance. People v. Dickinson, 928 P.2d 1309 (Colo. 1996).

Trial court properly denied defendant's motion to suppress. On the facts, police had probable cause to associate the key in defendant's pocket with criminal activity. Detective testified that he asked defendant for permission to search defendant's person and defendant consented. Police retrieved items, including a key from defendant, and at that time knew that the stolen truck was a Ford, and that the truck had license plates on it that did not belong to it, and that the defendant had given them a false identity. Furthermore officer testified that he had owned Ford vehicles in the past and recognized the key as a Ford truck key. People v. Manier, 197 P.3d 254 (Colo. App. 2008).

Probable cause existed for car search based on police officers' observation of a pipe that they recognized as the type commonly used to smoke marijuana, filled with a "black, burned substance", providing them with a reasonable belief that the car may have contained marijuana, an illegal drug at the time of the search in 2 011. People v. Verigan, 2 015 COA 132, __ P.3d __, aff'd on other grounds, 2018 CO 53, 420 P.3d 247.

B. Judicial Review.

Test for probable cause to issue warrant. Probable cause is an elusive term and is incapable of any precise definition, which would permit a mechanical application under all circumstances once certain factors are presented. The United States supreme court in attempting to define this area 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).

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); People v. Arnold, 186 Colo. 372, 527 P.2d 806 (1974); People v. McGill, 187 Colo. 65, 528 P.2d 386 (1974).

No technical measurement of probable cause. 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. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970); People v. Wilson, 173 Colo. 536, 482 P.2d 355 (1971); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971); People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971); Finley v. People, 176 Colo. 1, 488 P.2d 883 (1971); People v. Conwell, 649 P.2d 1099 (Colo. 1982); People v. Rueda, 649 P.2d 1106 (Colo. 1982); People v. Thompson, 793 P.2d 1173 (Colo. 1990).

A magistrate may draw reasonable inferences and may utilize his common sense in making a determination of probable cause. People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980).

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. Pannebaker, 714 P.2d 904 (Colo. 1986); People v. Atley, 727 P.2d 376 (Colo. 1986); People v. Lubben, 739 P.2d 833 (Colo. 1987).

When a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical rather than a common sense manner. People v. Maes, 176 Colo. 430, 491 P.2d 59 (1971).

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).

Where an officer believes he has probable cause to search and states his reasons, the Colorado supreme court will not examine such reasons grudgingly, but will measure them by standards appropriate for a reasonable, cautious, and prudent police officer trained in the type of investigation which he is making. People v. Singleton, 174 Colo. 138, 482 P.2d 978 (1971).

Probable cause is to be measured by a common-sense, nontechnical standard of reasonable cause to believe with due consideration given to police officer's experience and training in determining the significance of his observations. People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. McCoy, 870 P.2d 1231 (Colo. 1994).

"Probable cause supported by oath or affirmation" is oath or affirmation of parties who depose to facts upon which the prosecution is founded. Lustig v. People, 18 Colo. 217, 32 P. 275 (1893).

Eyewitness not essential. It is not essential that the probable cause contemplated by this section be shown by the oath of an eyewitness. Holt v. People, 23 Colo. 1, 45 P. 374 (1896).

Two-pronged test for determining whether information received from informer is sufficient to establish probable cause. First, the police must know of some of the underlying circumstances which establish a basis for the informant's conclusion that a crime has been or is being perpetrated by an accused. Second, there must be some basis for believing that the information supplied by the informant was credible or the informant was reliable. People v. Glaubman, 175 Colo. 41, 485 P.2d 711 (1971); DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972); People v. Stoppel, 637 P.2d 384 (Colo. 1981); People v. Dailey, 639 P.2d 1068 (Colo. 1982).

Test applied in People v. Villiard, 679 P.2d 593 (Colo. 1984).

Totality of circumstances test. Since the two-pronged test 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).

A trial court must consider the totality of the circumstances in the evidentiary record in determining whether an investigatory detention violates the fourth amendment. Failure to do so is error. People v. D.F., 933 P.2d 9 (Colo. 1997); People v. Saint-Veltri, 945 P.2d 1339 (Colo. 1997).

Corroboration of an anonymous tip with facts learned by an investigating officer making an investigatory stop, while possibly not satisfying the two-pronged test, is sufficient to establish probable cause under the totality of circumstances test. People v. Contreras, 780 P.2d 552 (Colo. 1989).

Totality of circumstances test places particular value on corroboration of details of informant's tip by independent police work. People v. Diaz, 793 P.2d 1181 (Colo. 1990).

The totality of the facts considered can constitute probable cause even though no one fact, if viewed alone, would be sufficient. People v. Eichelberger, 620 P.2d 1067 (Colo. 1980); People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994).

An anonymous tip need not include a highly detailed description of the suspect or alleged criminal activity because a court will consider other factors when determining the reliability of such information. People v. Pate, 878 P.2d 685 (Colo. 1994).

The totality of the circumstances test does not lower the standard for probable cause determinations; it simply gives reviewing courts more flexibility to determine the overall reliability of information from a confidential informant. People v. Leftwich, 869 P.2d 1260 (Colo. 1994).

Test adopted in People v. Pannebaker, 714 P.2d 904 (Colo. 1986).

Test applied in People v. Smith, 685 P.2d 786 (Colo. App. 1984); People v. Peltz, 697 P.2d 766 (Colo. App. 1984), aff'd, 728 P.2d 1271 (Colo. 1986); People v. Salazar, 715 P.2d 1265 (Colo. App. 1985), cert. denied, 744 P.2d 80 (Colo. 1987); People v. Lubben, 739 P.2d 833 (Colo. 1987); People v. Grady, 755 P.2d 1211 (Colo. 1988); People v. Varrieur, 771 P.2d 895 (Colo. 1989); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Abeyta, 795 P.2d 1324 (Colo. 1990); People v. Turcotte-Schaeffer, 843 P.2d 658 (Colo. 1993); People v. Leftwich, 869 P.2d 1260 (Colo. 1994); People v. Pate, 878 P.2d 685 (Colo. 1994); People v. Davis, 903 P.2d 1 (Colo. 1995); People v. Meraz, 961 P.2d 481 (Colo. 1998); People v. Crippen, 223 P.3d 114 (Colo. 2010).

The appropriate question for the reviewing court considering a search authorized by warrant is whether the issuing magistrate had a substantial basis for issuing the search warrant, as distinguished from simply whether the reviewing court would have found probable cause in the first instance. People v. Crippen, 223 P.3d 114 (Colo. 2010).

Probable cause determination must include consideration of the totality of the circumstances. The totality of the circumstances includes the content of the information asserted in the affidavit and an assessment of the reliability of the information, including both the credibility of any sources and the way those sources acquired that information and their basis of knowledge. A deficiency in one element in the assessment of the reliability of the information may be compensated for by a strong showing in the other, or even by some other indicia of the information's reliability altogether. People v. Crippen, 223 P.3d 114 (Colo. 2010).

Magistrate had a substantial basis for issuing warrant even though affidavit did not include the identity of the person or agency conducting the audit that referenced the documents sought by the warrant or provide any corroboration of the information contained in the audit. Under the unique circumstances of the case, the reliability of the information could be assessed by the totality of the circumstances, including the nature and detail of the information provided and the fact that the information was obviously obtained through first-hand observation of the documents, in the normal course of business, for purposes other than a criminal investigation. People v. Crippen, 223 P.3d 114 (Colo. 2010).

Role of 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).

Determination of probable cause is judicial function. The determination of whether probable cause exists is a judicial function to be performed by the issuing magistrate, and is not a matter to be left to the discretion of a police officer. 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 issuance of the warrant exist. Brown v. Patterson, 275 F. Supp. 629 (D. Colo. 1967), aff'd, 393 F.2d 733 (10th Cir. 1968); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971); People v. Goggin, 177 Colo. 19, 492 P.2d 618 (1972).

The determination of whether probable cause exists 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 police officer. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971).

Thus, issuing magistrate must be apprised of underlying facts. 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. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971).

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); People v. Clavey, 187 Colo. 305, 530 P.2d 491 (1975); People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976).

And may not rely on affiant's unexplained belief or assumption. An issuing magistrate may not rely on an affiant's unexplained belief that an urgency exists or on any assumption of immediacy. People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976).

Mere affirmance of the belief or suspicion on the officer's part is not enough. To hold otherwise would attach controlling significance to the officer's belief rather than to the magistrate's judicial determination. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971).

Nor complainant's mere conclusion. In determining whether or not probable cause exists, a judge should not accept without question the complainant's mere conclusion that the person whose arrest is sought has committed a crime. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971).

Affidavits containing only the conclusion of the police officer that he believed that certain property was on the premises or person and that such property was designed or intended or was or had been used as a means of committing a criminal offense or the possession of which was illegal, without setting forth facts and circumstances from which the judicial officer could determine whether probable cause existed, are fatally defective. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).

Nor mere suspicion. 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).

An arrest with or without a warrant must stand on firmer ground than mere suspicion, though the arresting officer need not have in hand evidence which would suffice to convict. People v. Gonzales, 186 Colo. 48, 525 P.2d 1139 (1974).

Vague suspicion does not rise to the dignity of probable cause. People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970); People v. Thompson, 185 Colo. 208, 523 P.2d 128 (1974); People v. Goessl, 186 Colo. 208, 526 P.2d 664 (1974); People v. Dauphinee, 192 Colo. 16, 554 P.2d 1103 (1976).

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).

While it is not necessary that the arresting officer possess knowledge of facts sufficient to establish guilt, more than mere suspicion is required to provide probable cause for arrest. People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994); People v. Davis, 903 P.2d 1 (Colo. 1995).

The duty of a reviewing court under Illinois v. Gates (462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)) is simply to ensure that the issuing judge had a substantial basis for concluding that there was probable cause to believe that contraband or other incriminating evidence will be found at the premises to be searched. People v. Arellano, 791 P.2d 1138 (Colo. 1990); People v. Leftwich, 869 P.2d 1260 (Colo. 1994).

Magistrate's probable cause determination is given great deference and is not reviewed de novo. In reviewing determination of probable cause, court must be satisfied that the magistrate had a substantial basis for ruling that probable cause existed. Henderson v. People, 879 P.2d 383 (Colo. 1994).

Doubts must be resolved in favor of a magistrate's determination of probable cause in order to avoid creating a climate in which police resort to warrantless searches rather than obtaining a warrant before conducting a search. People v. Fortune, 930 P.2d 1341 (Colo. 1997).

Suppression order reversed when redacted affidavit demonstrates the existence of probable cause. The court found that there were sufficient facts remaining in the affidavit, after redaction of suppressed evidence, to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity was located at the address to be searched. People v. Hebert, 46 P.3d 473 (Colo. 2002).

Affidavit based on information supplied by unnamed informant is sufficient to support issuance of a search warrant. Bean v. People, 164 Colo. 593, 436 P.2d 678 (1968).

But such affidavit must be corroborated. An affidavit based on information supplied by an unnamed informant must be corroborated by other matters within the officer's knowledge. The "other matters" may include other sources of information and the fact that the defendant was known by police to be a user of narcotics. An affidavit so corroborated is not the mere affirmance of the belief or suspicion on the officer's part, nor is it a bare statement that officers had "reliable information from a credible person". Bean v. People, 164 Colo. 593, 436 P.2d 678 (1968).

Images of child pornography do not need to be attached to the affidavit in support of probable cause, nor does the affidavit need to include a description of the images. An affidavit from an investigating officer with extensive experience related to internet child pornography crimes that states the investigator believed the images involved sexually explicit material was sufficient, although an affidavit with a description of the images would be preferable. People v. Rabes, 258 P.3d 937 (Colo. App. 2010).

Remedies for error in affidavit left to court's discretion. When, following a veracity hearing, the probability of an error in an affidavit for a search warrant has been found, the election of remedies or sanctions is left to the discretion of the district court. People v. Nunez, 658 P.2d 879 (Colo. 1983).

Under some circumstances, an anonymous informant's tip alone will not satisfy the probable cause requirement; however, a tip from an anonymous informant that has additional indicia of reliability or that is corroborated may provide a substantial basis for a determination of probable cause. Henderson v. People, 879 P.2d 383 (Colo. 1994).

Uncorroborated accusation by unidentified informant does not provide probable cause. People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971).

Under totality of circumstances, probable cause for issuance of search warrant existed where affidavit relied on four independent anonymous informant's tips that described in detail petitioner's activities and property located at petitioner's residence and where affidavit further relied on police information obtained from airborne observations. Henderson v. People, 879 P.2d 383 (Colo. 1994).

Probable cause may be based in whole or in part upon hearsay. People v. Snelling, 174 Colo. 397, 484 P.2d 784 (1971).

The constitutional requirement of probable cause may be established by hearsay information. People v. Henry, 631 P.2d 1122 (Colo. 1981).

If the material in the affidavit is stated to be or appears to be hearsay information obtained from an informant or other person, and the information turns out to be incorrect, the supreme court will not use hindsight as a test to determine whether the search warrant should or should not have been issued. The law is clear that 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).

The reasonably trustworthy information relied on by officers 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).

But such hearsay must be determined to be reliable. People v. Snelling, 174 Colo. 397, 484 P.2d 784 (1971).

An affidavit which relies upon hearsay information from an undisclosed informant rather than upon the affiant's personal observations must contain sufficient information to permit the judge who issues the warrant to make an independent determination that the informant was credible or that his information was reliable. People v. Press, 633 P.2d 489 (Colo. App. 1981).

In order to establish that a police officer has probable cause to arrest, based on information received from an informer, there must be evidence that the officer was apprised of some of the underlying circumstances from which the informant concluded that a crime had been or was being committed, and there must be some basis from which the officer could conclude that the informer was reliable or his information credible. Stork v. People, 175 Colo. 324, 488 P.2d 76 (1971).

Probable cause for defendant's arrest cannot be predicated on an informant's tip when the information received by the police officers does not concern defendant and would not indicate that defendant is involved in any criminal activity. Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972).

Defendant may not rely upon an affidavit at a suppression hearing without attempting to call the affiant. The affidavit is hearsay evidence and thus may not properly be admitted at a suppression hearing. The affidavit is sufficient to determine whether a hearing is necessary, but not to actually determine the matter itself. People v. Warner, 251 P.3d 567 (Colo. App. 2010).

Important fact is means of testing reliability of information given, and unless the affidavit provides such information, then no warrant should issue. Flesher v. People, 174 Colo. 355, 484 P.2d 113 (1971).

And affidavit must contain sufficient information to determine informant's credibility. If the 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).

Where probable cause is predicated on information from an undisclosed informant, the affidavit must allege sufficient facts from which the issuing judge may determine independently: (1) The adequacy of the informant's basis for his allegations that evidence of crime will be found at the place to be searched, and (2) the credibility of the informant or the reliability of his information. People v. Conwell, 649 P.2d 1099 (Colo. 1982).

Inability of detective to establish an anonymous informant's reliability and veracity does not end the inquiry concerning an affidavit establishing probable cause because a deficiency regarding reliability and veracity can be overcome by a strong showing as to the informant's basis of knowledge or some other indicia of reliability. People v. Leftwich, 869 P.2d 1260 (Colo. 1994).

Determination of reliability of informant's information. 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 credibility of the informant or the reliability of his information may be supported by details supplied by the informant, set forth in the affidavit, indicating that the only way the informant could have obtained the information was through a reliable method. A second method of satisfying the credibility or reliability requirement is the presence of independent, collateral corroboration in the affidavit. People v. Conwell, 649 P.2d 1099 (Colo. 1982).

Where an unknown informant's tip constitutes the principal basis for believing that criminal activity is occurring in a certain place, the affidavit must state facts concerning where, how, and when the informant received the information so that the magistrate can independently determine whether reasonable grounds exist to believe that illegal activity is currently being conducted in the place to be searched or that contraband is currently located therein. People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976).

Where the information relied upon to establish probable cause for arrest originates from an anonymous informer, the informer's tip must allege sufficient facts to establish the basis for his knowledge of criminal activity and also must allege adequate circumstances to justify the officer's belief in the informer's credibility or the reliability of his information. People v. Henry, 631 P.2d 1122 (Colo. 1981).

Where an affidavit is based upon an informer's tip, the totality of the circumstances inquiry looks to all indicia of reliability, including the informer's veracity, the basis of his knowledge, the amount of detail provided by the informer, and whether the information provided was current. People v. Leftwich, 869 P.2d 1260 (Colo. 1994); People v. Randolph, 4 P.3d 477 (Colo. 2000); People v. Pacheco, 175 P.3d 91 (Colo. 2006).

Informant's reliability, veracity, and basis of knowledge are important factors in determining existence of probable cause. People v. Diaz, 793 P.2d 1181 (Colo. 1990).

A bare assertion of knowledge is not sufficient to establish an informer's basis of knowledge; there must be sufficient facts to allow a magistrate to determine how the informant obtained the information on which the affiant relies. People v. Leftwich, 869 P.2d 1260 (Colo. 1994); People v. Pacheco, 175 P.3d 91 (Colo. 2006).

Declarations against the penal interests of informants may establish informant credibility in an affidavit for a search warrant. People v. Stoppel, 637 P.2d 384 (Colo. 1981); People v. Stark, 691 P.2d 334 (Colo. 1984); People v. Lubben, 739 P.2d 833 (Colo. 1987).

Reliability of a first-time informant may be determined from independent corroborative facts, such as the recitation of specific details which suggest strongly the informant's personal familiarity with the matter in question, or the receipt of identical information from another source. People v. Press, 633 P.2d 489 (Colo. App. 1981).

Where a common sense reading of the affidavit was that informant was a "citizen informant", an explanation of such informant's connection with the case or his basis of knowledge was not necessary to establish reliability and credibility. People v. Salazar, 715 P.2d 1265 (Colo. App. 1985), cert. denied, 744 P.2d 80 (Colo. 1987).

Probable cause for warrantless arrest did not exist when informants' reliability was not demonstrated and the reported information was not independently corroborated by police. People v. Diaz, 793 P.2d 1181 (Colo. 1990).

Informant's statements did not provide a substantial basis for issuing a warrant where the affidavit failed to establish informant's basis for knowledge. Although informant provided some details about defendant's alleged activities, the details that police corroborated did not relate to or describe criminal activities. These details were insufficient to allow a judge to reasonably conclude that the informant had access to reliable information about the illegal activities reported to the police. People v. Hoffman, 293 P.3d 1 (Colo. App. 2010), rev'd on other grounds, 2012 CO 66, 289 P.3d 24.

Facts that are easily obtained or predictions that are easily made add little to the decision of whether probable cause for a search exists. The focus of a court in reviewing an affidavit that relies on corroboration of non-criminal activity is the degree of suspicion that attaches to particular types of corroborated non-criminal acts, whether the informant provides details which are not easily obtained, and whether such statements allow an inference that the informant's allegations of criminal activity are reliable. People v. Leftwich, 869 P.2d 1260 (Colo. 1994); People v. Pacheco, 175 P.3d 91 (Colo. 2006).

Reliability of hearsay may be adduced by police investigation, police surveillance, or other investigative techniques. People v. Snelling, 174 Colo. 397, 484 P.2d 784 (1971).

Showing necessary to establish trustworthiness varies with source. The type of showing necessary to establish the trustworthiness of information supporting an arrest will vary with the source of the information. People v. Henry, 631 P.2d 1122 (Colo. 1981).

Information furnished by a citizen-witness should not be subjected to the same tests for reliability applicable to the anonymous police informer. People v. Henry, 631 P.2d 1122 (Colo. 1981).

When the source of the information is a citizen-informer who witnessed a crime and is identified, the citizen's information is presumed to be reliable and the prosecution is not required to establish either credibility of the citizen or the reliability of the citizen's information. People v. Fortune, 930 P.2d 1341 (Colo. 1997).

Mere statement that informant known to be reliable 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, but 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); People v. Bowen, 189 Colo. 126, 538 P.2d 1336 (1975).

But statement that informant's previous information resulted in seizure of narcotics held sufficient. A basis for concluding that the affiant detective's informant was "credible" and the information supplied was "reliable" was found in affiant's statement that the informant's previously furnished information resulted in seizure of narcotics and arrests of suspects. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).

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).

Where 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).

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).

Reliability of informant is established if previous 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. 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 furnished solid material 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 that 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).

Under the totality of the circumstances, probable cause existed to support defendant's arrest and the subsequent seizure of evidence that was used at trial. The fact the informant got into a car with police officers to take them to the location where the drug deal was going to occur supports the reliability of the informant's information. People v. Robinson, 226 P.3d 1145 (Colo. App. 2009).

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).

Informant's personal observations sufficient. Personal observation by an informant of the objects of the search within the place to be searched satisfies requirement of establishing probable cause. People v. Harris, 182 Colo. 75, 510 P.2d 1374 (1973).

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).

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).

Informant may sufficiently detail criminal activity. In the absence of a statement detailing the circumstances underlying an informant's conclusion, an informant's tip may only support a finding of probable cause if it describes the criminal activity of the accused in sufficient detail to allow the trial court to reasonably infer that the informant obtained his facts in a reliable manner. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972); People v. Sullivan, 680 P.2d 851 (Colo. App. 1984).

Disclosure of informer's identity not constitutional right. At a preliminary hearing to determine whether there was probable cause to support an arrest, the disclosure of the identity of an informer is not a constitutional right, and the informant's identity need not be made known. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972).

Disclosure is not automatic upon request. A defendant seeking disclosure must make an initial showing that the informant will provide information essential to the merits of his suppression ruling. People v. Bueno, 646 P.2d 931 (Colo. 1982).

But evidentiary matter within discretion of trial judge. The disclosure of the identity of an informer is an evidentiary matter within the sound indiscretion of the trial judge. If the trial judge is convinced that the police officers relied in good faith upon credible information supplied by a reliable informant, the informant's identity need not be disclosed at the suppression hearing. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972).

Whether the identity of a confidential informant should be disclosed is committed to the sound discretion of the trial court. People v. Dailey, 639 P.2d 1068 (Colo. 1982).

Informer privilege recognizes general obligation of citizens to communicate their knowledge of crimes to law enforcement officials and, at the same time, encourages that obligation by protecting their anonymity under appropriate circumstances. People v. Bueno, 646 P.2d 931 (Colo. 1982).

Informer privilege is in reality the government's qualified privilege to withhold from disclosure the identity of persons who furnish information of crimes to law enforcement officers. People v. Bueno, 646 P.2d 931 (Colo. 1982).

Informer privilege is not absolute and must be administered in consideration of other significant and competing interests. Thus, where the disclosure of an informer's identity, or of the contents of his communication, would be relevant and helpful to the defense of an accused, or would be essential to a fair determination of a cause, the privilege generally should yield. People v. Bueno, 646 P.2d 931 (Colo. 1982).

Test for disclosure of informer's identity. In determining whether to disclose an informer's identity, the trial court must balance the public interest in protecting the flow of information to the police against the accused's right to prepare his defense. People v. Dailey, 639 P.2d 1068 (Colo. 1982); People v. Cook, 722 P.2d 432 (Colo. App. 1986).

Disclosure in connection with motion to suppress. The first situation involving disclosure arises in connection with a defendant's motion to suppress evidence. If the disclosure of an informant's identity is essential to a fair determination of a suppression motion, then the trial court in its discretion may order disclosure. People v. Bueno, 646 P.2d 931 (Colo. 1982).

When burden met for requiring disclosure. A defendant will meet this initial burden when he establishes a reasonable basis in fact to believe that an informer does not exist or, if he does, he did not relate to the police the information upon which the police purportedly relied as probable cause for an arrest or search. People v. Bueno, 646 P.2d 931 (Colo. 1982).

The necessary foundation for the court's exercise of discretion in ordering disclosure is a showing of a reasonable basis in fact to question the accuracy of the informant's recitals. People v. Nunez, 658 P.2d 879 (Colo. 1983).

Disclosure in connection with claim that informer is witness. The second situation involving the disclosure of an informant's identity arises in connection with a defendant's claim that the informer is an essential witness on the issue of guilt or innocence. Here again, the right to disclosure is not automatic. People v. Bueno, 646 P.2d 931 (Colo. 1982).

Evidence suppressed following failure to disclose. When the prosecution refuses to disclose the identity of an informant, the district court may properly suppress the evidence seized during the search of the defendant's house. People v. Nunez, 658 P.2d 879 (Colo. 1983).

Dismissal of charges upheld, following failure to produce confidential witness. People v. Martinez, 658 P.2d 260 (Colo. 1983).

Informant must be likely source of relevant evidence. The necessary foundation for the court's exercise of discretion in ordering disclosure should be a showing of a reasonable basis in fact to believe the informant is a likely source of relevant and helpful evidence to the accused. People v. Bueno, 646 P.2d 931 (Colo. 1982).

Generally, a showing by the accused that the informant witnessed or participated in the crime will meet this threshold foundation and will provide an adequate basis for a discretionary order of disclosure. People v. Bueno, 646 P.2d 931 (Colo. 1982).

Victim as source of probable cause. A victim's detailed description of the offense and of its perpetration inside a vehicle is the source of both the probable cause to arrest the defendant and the probable cause to search the vehicle. People v. Meyer, 628 P.2d 103 (Colo. 1981).

Officer may rely upon information given by victim. Details of the underlying facts and circumstances of the crime, given to the investigating officers by the victim of the crime, can be relied upon by the officers and 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).

"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).

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).

The "citizen-informer" rule applies equally to a citizen-victim. People v. Henry, 631 P.2d 1122 (Colo. 1981).

A citizen informant is an eyewitness who, with no motive but public service, and without expectation of payment, identifies himself and volunteers information to the police. People v. Press, 633 P.2d 489 (Colo. App. 1981).

It is essential however that the citizen be an eyewitness to, or have some other firsthand knowledge of, the incident he reports to police officers. People v. Donnelly, 691 P.2d 747 (Colo. 1984).

Information provided by citizen-informants is not subject to the same credibility standards as information provided by confidential police informants. People v. Rueda, 649 P.2d 1106 (Colo. 1982).

Reliability of citizen-informer presumed. When the source of information is a citizen-informer who witnessed a crime and is identified, the citizen's information is presumed to be reliable, and the prosecution is not required to establish either the credibility of the citizen or the reliability of his information. People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Rueda, 649 P.2d 1106 (Colo. 1982).

Information from a citizen informant is considered inherently trustworthy. People v. Press, 633 P.2d 489 (Colo. App. 1981).

Police officer's experience considered. In assessing the existence of probable cause to arrest, a court must consider the police officer's knowledge, expertise, and experience in a particular law enforcement field. People v. Rueda, 649 P.2d 1106 (Colo. 1982); Bartley v. People, 817 P.2d 1029 (Colo. 1991); People v. McCoy, 870 P.2d 1231 (Colo. 1994).

Even if not false, statements of officer-affiants may be so misleading that a finding of probable cause may be deemed erroneous. People v. Winden, 689 P.2d 578 (Colo. 1984).

Reliability of police officer's observations. Information gained by the observations of a police officer may be presumed to be credible and reliable. People v. Cook, 665 P.2d 640 (Colo. App. 1983).

"Fellow-officer" rule. Affidavit in support of search warrant was not insufficient because 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).

A police officer has the right to rely upon the information relayed to him by his fellow law enforcement officers. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); People v. Reed, 56 P.3d 96 (Colo. 2002).

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, provided that he acts upon the direction or as a result of communication with a brother officer or that of another police department and provided that 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).

Probable cause can be based on a combination of facts personally observed by the arresting officer and information relayed to him by other officers. People v. Handy, 657 P.2d 963 (Colo. App. 1982).

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).

The "fellow officer" rule provides that an arresting officer need not have personal information amounting to probable cause but may rely on a dispatch or communication from another officer in effecting an arrest. People v. Henry, 631 P.2d 1122 (Colo. 1981).

An officer who does not personally possess sufficient information to constitute probable cause may nevertheless make a valid arrest if he acts upon the direction or as a result of a communication from a fellow officer, and the police, as a whole, possess sufficient information to constitute probable cause. People v. Freeman, 668 P.2d 1371 (Colo. 1983); People v. Thompson, 793 P.2d 1173 (Colo. 1990).

The right of one officer to rely on information relayed to him by a fellow officer is predicated upon the latter's assumed possession of trustworthy information of facts and circumstances which would themselves support a conclusion of probable cause. Where no such showing was made, justification for a warrantless search may not be placed on the so-called "fellow officer" rule. People v. Ware, 174 Colo. 419, 484 P.2d 103 (1971).

The "fellow officer rule" may be used to find probable cause to seize evidence under the plain view exception. Although shirt was not listed in the search warrant, seizure was proper because officer had reasonable belief through another member of the search team that the shirt, in plain sight, was evidence of a crime. People v. Jauch, 2 013 COA 1 2 7, 411 P.3d 53.

Although the officer was acting on an arrest warrant, and the defendant's laptop was not listed in a search warrant, seizure was proper because the officer was told by the investigating officers that the laptop, in plain sight, was evidence of a crime. People v. Swietlicki, 2015 CO 67, 361 P.3d 411.

Overbreadth of search warrant cured by affidavit that more particularly described the items to be seized where affidavit was attached to warrant so that they appeared as one document. People v. Slusher, 844 P.2d 1222 (Colo. App. 1992).

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).

In considering whether a hearing should be held on veracity challenge to affidavit supporting a search warrant, trial court erred in applying standard akin to federal standard rather than the less demanding Colorado standard. People v. Cook, 722 P.2d 432 (Colo. App. 1986).

The government's qualified privilege of nondisclosure of confidential informants and a criminal defendant's veracity challenge should be balanced on considerations of fundamental fairness. People v. Flores, 766 P.2d 114 (Colo. 1988).

In camera interview in a veracity hearing must be preceded by defendant fairly placing into issue the existence of the informant, the informant's prior reliability, or the veracity of the officer-affiant. People v. Flores, 766 P.2d 114 (Colo. 1988).

Veracity challenger's attack must be more than conclusory or mere assertions of denial. If the only evidence produced at the suppression hearing is a defendant's bald assertion (e.g., that the informant does not exist or that the affiant misrepresented information conveyed by informant), then the defendant has failed to meet his threshold burden. People v. Flores, 766 P.2d 114 (Colo. 1988).

Suppression order reversed where affidavit alleged facts sufficient to support a finding of probable cause, including the fact of a one-day, round-trip to Denver by defendant and previous statements by defendant to an informer that he obtained heroin in Denver and that he was almost out of heroin. Information from second informant, held insufficient by district court to provide basis for informant's belief that defendant was going to Denver, deemed reliable due to corroboration by affiant and by confirmation of information from second informant on four previous occasions. People v. Varrieur, 771 P.2d 895 (Colo. 1989).

Suppression order reversed where affidavit stated that fellow officer observed defendant and another previous drug offender smoking outside hotel room, hotel staff connected defendant with another room in which methamphetamine precursors had been discovered, store employees identified defendant as having purchased large amounts of precursors, and defendant was observed driving his truck to hotel room. Search of room and truck held proper notwithstanding that some facts stated in affidavit may have been false, where trial court made no finding as to whether falsehoods were intentional or material. People v. Reed, 56 P.3d 96 (Colo. 2002).

Constitutional protection of the fourth amendment and this section applicable to civil forfeiture proceedings. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

District attorney's investigator is officer within rule. An authorized investigator of a district attorney is a peace officer and therefore comes within the fellow officer rule for purposes of making a lawful arrest. People v. Herrera, 633 P.2d 1091 (Colo. App. 1981).

Probable cause found. People v. Bengston, 174 Colo. 131, 482 P.2d 989 (1971); People v. Ramey, 174 Colo. 250, 483 P.2d 374 (1971); People v. Barnes, 174 Colo. 531, 484 P.2d 1233 (1971); People v. Olson, 175 Colo. 140, 485 P.2d 891 (1971); People v. Henderson, 175 Colo. 400, 487 P.2d 1108 (1971); People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971); People v. DeBaca, 181 Colo. 111, 508 P.2d 393 (1973); People v. Johnson, 192 Colo. 483, 560 P.2d 465 (1977); People v. Ball, 639 P.2d 1078 (Colo. 1982); People v. Villiard, 679 P.2d 593 (Colo. 1983); People v. Hill, 690 P.2d 856 (Colo. 1984); Banks v. People, 696 P.2d 293 (Colo. 1985); People v. Smith, 709 P.2d 4 (Colo. App. 1985); People v. Atley, 727 P.2d 376 (Colo. App. 1986).

The best indication that a magistrate is not detached and neutral is the lack of probable cause in the affidavit. A review of the court's probable cause determination is the first step to determine if the warrant was issued by a neutral and detached magistrate. The affidavit clearly established probable cause. People v. Gallegos, 251 P.3d 1056 (Colo. 2011).

The next inquiry is whether the magistrate has an actual conflict so significant that he or she cannot be neutral and detached. An actual conflict would arise when the court would receive some benefit in issuing the warrant. In this case, the fact that the judge's son worked for the district attorney's office is just a mere appearance of impropriety, and, since the son was not involved in the case at all, there is no evidence of an actual conflict. People v. Gallegos, 251 P.3d 1056 (Colo. 2011).

C. Written Oath or Affirmation.

Law reviews. For article, "The 'Bare Bones' Affidavit Under C olorado's Good Faith Exception to the Exclusionary Rule", see 40 C olo. Law. 27 (May 2011).

When search warrant is challenged for lack of probable cause, supporting affidavit is an essential element to be introduced in evidence. People v. Espinoza, 195 Colo. 127, 575 P.2d 851 (1978).

Search warrrants must be supported by evidentiary affidavits containing sufficient facts to allow "probable cause" to be determined by a detached magistrate instead of the accusing police officer. To dispense with this requirement would render the search warrant itself meaningless. It would allow a police officer to subjectively determine probable cause. Brown v. Patterson, 275 F. Supp. 629 (D. Colo. 1967), aff'd, 393 F.2d 733 (10th Cir. 1968).

And affidavit must comply with United States supreme court's standards. 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).

Affidavit may include items observed in plain view. Items observed in plain view pursuant to a valid entry may be included in an affidavit for a search warrant. People v. Bustam, 641 P.2d 968 (Colo. 1982).

Verbal communication of facts, as contrasted with written communication, will not suffice to establish probable cause, 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).

Sufficient facts must appear on face of affidavit. The express constitutional requirement of a written oath or affirmation makes it clear beyond a doubt that sufficient facts to support a magistrate's determination of probable cause must appear on the face of the written affidavit. People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970).

In determining whether the affidavit is sufficient, the judge must look within the four corners of the affidavit to determine whether there are grounds for the issuance of a search warrant. It is, of course, elementary and of no consequence that the police might have had additional information which could have provided a basis for the issuance of the warrant. People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People v. Woods, 175 Colo. 34, 485 P.2d 491 (1971); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973); People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976).

An affidavit may be used to charge a crime for the purpose of obtaining an arrest warrant; however, when used it must set forth facts sufficient to justify a finding of the existence of probable cause. People v. McFall, 175 Colo. 151, 486 P.2d 6 (1971).

Facts set forth in an affidavit must support the belief of a reasonably prudent person that the property to be seized is located at the place to be searched or, in the case of an arrest warrant, that an offense has been committed by the person named in the warrant. People v. White, 632 P.2d 609 (Colo. App. 1981); People v. Hamer, 689 P.2d 1147 (Colo. App. 1984).

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).

Where same magistrate reviewed and signed two warrants within hours of each other, facts within affidavits for both warrants may be considered for determining probable cause for the second warrant. People v. Scott, 227 P.3d 894 (Colo. 2010).

However, an affidavit containing wholly conclusory statements devoid of facts from which a magistrate can independently determine probable cause is a "bare bones" affidavit and thus deficient. People v. Randolph, 4 P.3d 477 (Colo. 2000); People v. Bachofer, 85 P.3d 615 (Colo. App. 2003); People v. Pacheco, 175 P.3d 91 (Colo. 2006).

The fact that a companion arrived at defendant's detached garage and gave some of his or her methamphetamine to defendant insufficient to establish probable cause that defendant possessed methamphetamine in his or her residence or that he or she was dealing drugs from his or her residence. People v. Bachofer, 85 P.3d 615 (Colo. App. 2003).

Although judge may require testimony to supplement insufficient affidavit. 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 warrant or can demand that the affidavit be amended to disclose additional facts, if a search warrant is to be issued. People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971) (arrest warrant).

But not if affidavit basically deficient. 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).

Supplemental testimony must be reduced to writing and signed. Under the Colorado Constitution, the warrant can only be issued upon probable cause supported by oath or affirmation which is reduced to writing. Moreover, Crim. P. 41 requires an affidavit to support a search warrant, which establishes the grounds for the issuance of the warrant, and demands that the affidavit be sworn to before the judge. Accordingly, 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); People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971).

An affidavit can be used to satisfy the fourth amendment's particularity requirement if (1) a deficient warrant incorporates a curative affidavit by reference, (2) both documents are presented to the issuing magistrate or judge, and (3) the curative affidavit accompanies the warrant when it is executed. People v. Staton, 924 P.2d 127 (Colo. 1996).

The execution of the search warrant under the supervision and control of the officer who is the affiant obviates the necessity for the affidavit to accompany the warrant when it is executed. People v. Staton, 924 P.2d 127 (Colo. 1996).

Court to strike false information supportive of search warrant. Where the information supplied by the affiant which supports the issuance of the search warrant is false, the trial court has no alternative but to strike the admittedly erroneous information which the affiant supplied. People v. Hampton, 196 Colo. 466, 587 P.2d 275 (1978).

Statements in an affidavit which are untrue or which were known to the affiant to be false must be stricken and cannot be considered in determining whether probable cause exists to support the issuance of a warrant. People v. White, 632 P.2d 609 (Colo. App. 1981).

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).

But warrant will not be stricken if affidavit still contains sufficient material facts. Where the affidavit still contains material facts sufficient as a matter of law to support the issuance of a warrant after deletion of the erroneous statements, the supreme court will not strike down the warrant because the affidavit is not completely accurate. People v. Malone, 175 Colo. 31, 485 P.2d 499 (1971).

Although warrants issued on fatally defective affidavits are nullities, and any search conducted under them is unlawful. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971).

A search warrant is fatally defective where it is based upon an affidavit which was wholly insufficient to support a finding of probable cause. Smaldone v. People, 173 Colo. 385, 479 P.2d 973 (1971).

Test for determining whether omission in affidavit invalidates search warrant is whether the omitted facts rendered the affidavit substantially misleading to the judge who issued the warrant. People v. Winden, 689 P.2d 578 (Colo. 1984); People v. Sundermeyer, 769 P.2d 499 (Colo. 1989).

The omission of material facts known to the affiant at the time the affidavit was executed may cause statements within the affidavit to be so misleading that a finding of probable cause may be deemed erroneous. An omitted fact is material for purposes of vitiating an entire affidavit only if its omission rendered the affidavit substantially misleading to the judge who issued the warrant. People v. Fortune, 930 P.2d 1341 (Colo. 1997).

Omission of fact in affidavit that reserve police officer had viewed marijuana plants in defendant's home prior to observations made by officers through window did not make affidavit misleading as omitted fact did not cast doubt on existence of probable cause. People v. Sundermeyer, 769 P.2d 499 (Colo. 1989).

Omission of fact in affidavit that would have indicated the affiant's source of information related to specific address to be searched arguably failed to provide a substantial basis for issuing a warrant, however, even a bare bones affidavit should not lead to an exclusionary sanction unless it is so lacking in indicia of probable cause that official belief in its existence was unreasonable. People v. Gall, 30 P.3d 145 (Colo. 2001).

So long as the omission of certain facts in the affidavit does not cause it to be misleading, a search warrant based on such affidavit is still valid. People v. Grady, 755 P.2d 1211 (Colo. 1988).

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).

An affiant's impression that later proved to be incorrect, but was not negligently made, did not have to be excised from the search warrant affidavit when determining whether probable cause existed so long as the impression was reasonable. People v. Young, 785 P.2d 1306 (Colo. 1990).

There is no requirement that all steps taken, all information obtained, and all statements made by witnesses during the course of an investigation be described fully and in chronological order in an affidavit. People v. Fortune, 930 P.2d 1341 (Colo. 1997).

When the information indicates a continuing series of illegal activities, the need for precise times of surveillance is lessened. While specific dates are preferable and should be given if at all possible, the fact that they are absent is not fatal to the sufficiency of the affidavit. People v. Lubben, 739 P.2d 833 (Colo. 1987).

Erroneous description of location not necessarily fatal. Fact that the affidavit identified the wrong street, which was less than one block away from the actual location of the truck that was to be searched, was not dispositive of the affidavit's efficacy. People v. Del Alamo, 624 P.2d 1304 (Colo. 1981).

Fact that affidavit failed to include apartment number and made a specific request to search a different residence was not necessarily fatal when affidavit and warrant were both prepared by the same officer and presented to the judge at the same time, affidavit included an annotation with a correct address and apartment number at the bottom of each page, and the documents taken together left no doubt as to the correct address and apartment number to search. People v. Gall, 30 P.3d 145 (Colo. 2001).

Thus, failure to specifically state in affidavit that sex crime had occurred in vehicle to be searched was not fatally defective where it had been established that vehicle was present at location of alleged crimes, and it was reasonable to believe evidence of the sex crime might be inside the vehicle. People v. Martinez, 32 P.3d 520 (Colo. App. 2001).

But a "bare bones" affidavit which fails to connect the property to be searched with the alleged criminal activity and which otherwise lacks particularity is insufficient. People v. Randolph, 4 P.3d 477 (Colo. 2000).

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).

Not every instance of insufficient attention to detail by police officers, any more than by attorneys or judges, is unreasonable and in absence of any evidence of a deliberately false affidavit, abandonment by the judge of his duty, or a facially deficient warrant, the exclusion of evidence discovered in reliance on the search warrant was improper. People v. Gall, 30 P.3d 145 (Colo. 2001).

Good faith exception to exclusionary rule held to apply to seizure of telephone toll records where affidavit underlying search warrant was insufficient. People v. Taylor, 804 P.2d 196 (Colo. App. 1990).

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. Gutierrez, 222 P.3d 925 (Colo. 2009).

Nor does good faith exception apply when the police submit a defective affidavit to the county judge, and continue to rely on that defective affidavit. The failure of the police to corroborate the details in the affidavit and to narrow the search with particularity was not in accord with the duty of the police to assure compliance with the probable cause requirement at each step of the process. People v. Randolph, 4 P.3d 477 (Colo. 2000).

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).

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).

The determination by an appellant 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).

A warrant that has failed appellate scrutiny can nonetheless form the basis for good faith execution by a reasonable police officer. People v. Altman, 960 P.2d 1164 (Colo. 1998).

Probable cause to issue a search warrant for a residence was sufficiently established by affidavit that was based primarily on information provided by confidential police informant and only thinly corroborated by independent police investigation. The "totality of circumstances" test for determining whether probable cause existed for issuing warrant was met. People v. Paquin, 811 P.2d 394 (Colo. 1991).

Effect of sufficient affidavit. If the supporting affidavit was sufficient to provide probable cause for issuance of a warrant, then the searching officers were rightfully in the defendant's apartment and were entitled to seize items in plain view which they recognized as stolen. People v. Espinoza, 195 Colo. 127, 575 P.2d 851 (1978).

Affidavit held sufficient. People v. Campbell, 678 P.2d 1035 (Colo. App. 1983); People v. Grady, 755 P.2d 1211 (Colo. 1988); People v. Quintana, 785 P.2d 934 (Colo. 1990).

Affidavit held insufficient. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970); People v. Brethauer, 174 Colo. 29, 482 P.2d 369 (1971); Flesher v. People, 174 Colo. 355, 484 P.2d 113 (1971); People v. Myers, 175 Colo. 109, 485 P.2d 877 (1971); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973); People v. Bauer, 191 Colo. 331, 552 P.2d 512 (1976).

III. SEARCHES AND SEIZURES.

A. In General.

This section protects only against unreasonable searches and seizures. The prohibitions of this section are intended to protect only against unreasonable searches and seizures. Dickerson v. People, 179 Colo. 146, 499 P.2d 1196 (1972); Hoffman v. People, 780 P.2d 471 (Colo. 1989); People v. Hakel, 870 P.2d 1224 (Colo. 1994); People v. Upshur, 923 P.2d 284 (Colo. App. 1996).

The security of persons is guaranteed only against unreasonable searches. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972).

The fourth and fourteenth amendments to the U.S. Constitution and this section guarantee the right of the people to be secure in their persons against unreasonable seizures. To effectuate these guarantees, police must have probable cause to arrest before they can subject a person to those deprivations of liberty that result from being arrested. People v. McCoy, 870 P.2d 1231 (Colo. 1994); People v. Davis, 903 P.2d 1 (Colo. 1995).

Federal fourth amendment search and seizure protections are insufficient when law enforcement attempts to use a search warrant to obtain an innocent, third-party bookstore's customer purchase records. The Colorado Constitution provides greater protection in this arena than the federal constitution. A more substantial justification from the government is required when the government action is likely to chill people's willingness to read and be exposed to diverse ideas. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002).

An innocent, third-party bookstore must be afforded an opportunity for a hearing prior to the execution of any search warrant that seeks to obtain its customers' book-purchasing records. Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002).

A police officer's request for identification, without more, does not convert a consensual encounter into a seizure that requires fourth amendment protection. People v. Paynter, 955 P.2d 68 (Colo. 1998).

Even after Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007), police officer may ask automobile passenger for identification. Although passenger was technically seized at time she provided a false name, officer could lawfully ask for her identification during the traffic stop without reasonable suspicion of criminal activity on her part. People v. Bowles, 226 P.3d 1134 (Colo. App. 2009).

Neither a request for consent to search nor a request for a person to move a short distance transforms a consensual encounter into a seizure, so long as the officer does not convey a message that compliance is required. People v. Marujo, 190 P.3d 1003 (Colo. 2008).

Investigatory stops and arrests are seizures and therefore implicate the guarantees contained in the fourth amendment to the United States constitution and this section. People v. Morales, 935 P.2d 936 (Colo. 1997).

Reasonableness of search determined by balancing public need against invasion. In determining reasonableness, it is necessary to balance the public need to search against the invasion of the defendant's person or property which the search entails. Roybal v. People, 166 Colo. 541, 444 P.2d 875 (1968).

Reasonableness determined by balancing need for search against invasion of personal rights involved while giving consideration to scope of intrusion, manner and place conducted, and justification for. People v. Martin, 806 P.2d 393 (Colo. App. 1990).

Reasonableness standard of the fourth amendment should be applied to claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop, or other seizure of a free citizen. Martinez v. Harper, 802 P.2d 1185 (Colo. App. 1990).

"Special needs" exception exists to the warrant and probable cause requirements for the needs of law enforcement. City and County of Denver v. Casados, 862 P.2d 908 (Colo. 1993), cert. denied, 511 U.S. 1005, 114 S. Ct. 1372, 128 L. Ed. 2d 48 (1994).

And reasonableness inquiry requires balancing the nature and quality of the intrusion on the individual's fourth amendment interest against the countervailing interests at stake. Martinez v. Harper, 802 P.2d 1185 (Colo. App. 1990).

And reasonableness inquiry must be made objectively, that is, judged from the perspective of a reasonable officer on the scene. Martinez v. Harper, 802 P.2d 1185 (Colo. App. 1990); People v. Weston, 869 P.2d 1293 (Colo. 1994).

It is constitutionally reasonable to prevent escape by using deadly force where an officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. Thus, if a suspect threatens the officer with a weapon or there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. Martinez v. Harper, 802 P.2d 1185 (Colo. App. 1990).

A limited intrusion may be upheld on the basis of its objective reasonableness even though the officer may have harbored a subjective intent to engage in a more extensive intrusion than was warranted under the circumstances. People v. Weston, 869 P.2d 1293 (Colo. 1994).

Every search and seizure issue must be considered on the basis of the totality of the circumstances. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972).

Whether a search and seizure is unreasonable within the meaning of this section depends upon the facts and circumstances of each case. Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972).

Each search and seizure case must be tested on its own particular facts, and the test is always whether the search was reasonable under the circumstances. People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974).

In determining whether a particular encounter between the police and a citizen violates the fourth amendment, it is helpful to classify the incident as one of three types of police-citizen contact: Consensual encounters; arrests or full-scale searches; or intermediate forms of intrusion such as investigatory stops or limited searches. Consensual encounters do not trigger the fourth amendment as long as a reasonable person would feel free to disregard the police and go about his or her business. Arrests and full-scale searches are subject to the fourth amendment reasonableness requirement which requires that searches are based upon warrants issued upon probable cause or on an established exception to the warrant requirement. Finally, intermediate forms of intrusion may be used under specific circumstances based upon less than probable cause. People v. Archuleta, 980 P.2d 509 (Colo. 1999).

The degree of restraint incident to a traffic stop did not rise to the level associated with a formal arrest where the police officer stood next to the car and did not remove the defendant from the car or handcuff the defendant. After issuing the citation, when the police officer continued to question the defendant, the extent of restraint did not rise to the level of a formal arrest, even if the police officer retained the defendant's driver's license and registration. People v. Cervantes-Arredondo, 17 P.3d 141 (Colo. 2001).

Once the purpose of an investigatory stop is accomplished and there is no further reasonable suspicion to support further investigation, the officer generally may not further detain the driver. However, further questioning is permissible if the initial detention becomes a consensual encounter. To determine the nature and phases of an extended contact, the court must consider the duration and conditions of the contact in the context of the entire stop. But, the tenth circuit has applied a bright line rule: An officer must return a driver's documentation before a detention can end and a consensual encounter can begin. People v. Cervantes-Arredondo, 17 P.3d 141 (Colo. 2001).

The presence of a scent-masking agent, combined with other indicia of criminal activity may create a reasonable suspicion to support further investigation and a reasonably brief inquiry. People v. Cervantes-Arredondo, 17 P.3d 141 (Colo. 2001).

A lawful detention begun for one particular purpose does not become unlawful by prolonging that detention beyond the time necessary to diligently investigate for that original purpose, as long as the stop does not measurably extend beyond the time necessary to diligently investigate for a purpose as to which reasonable articulable suspicion was acquired during the initial lawful detention. People v. Ball, 2017 CO 108, 407 P.3d 580.

A person seized during an investigatory traffic stop may also voluntarily consent to a search. An officer who took possession of a driver's documents during an investigatory stop and did not return them until after a search was completed did not invalidate the driver's consent to the search. People v. Chavez-Barragan, 2016 CO 66, 379 P.3d 330.

A consensual interview can escalate into an investigatory stop if, upon consideration of the totality of the circumstances, a reasonable person, innocent of any crimes, would feel that he or she was not free to leave the officer's presence or disregard the officer's request for information. The record supports the trial court's finding that the encounter was consensual. People v. Valencia, 169 P.3d 212 (Colo. App. 2007).

If probable cause to actually arrest a detainee arises during a lawful investigatory stop, his or her continued detention is no longer attributable to an investigatory stop at all. Because a warrant is not required for an arrest outside the home, once probable cause to arrest has been acquired in the course of a lawful investigatory stop, further detention of the suspect is justified as a lawful arrest, whether a formal arrest has yet been announced or not. People v. Ball, 2017 CO 108, 407 P.3d 580.

"Search". There was clearly a "search" when an officer went to the address given by the defendant in order to obtain evidence or information about the defendant and the evidence was produced by the owner at the specific request of the officer. Spencer v. People, 163 Colo. 182, 429 P.2d 266 (1967).

Courts have interpreted the phrase "searches and seizures" in constitutional provisions to regulate the type of conduct designed to elicit a benefit for the government in an investigatory or, more broadly, an administrative capacity. People v. Loggins, 981 P.2d 630 (Colo. App. 1998).

A visual observation which infringes upon a person's reasonable expectation of privacy constitutes a search. People v. Harfmann, 38 Colo. App. 19, 555 P.2d 187 (1976).

A search involves some exploratory investigation, or an invasion and quest, a looking for or seeking out, and implies a prying into hidden places for that which is concealed. People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1439, 71 L. Ed. 2d 655 (1982).

Requiring a person to submit to an ultraviolet lamp examination constitutes a search. People v. Santistevan, 715 P.2d 792 (Colo. 1986).

Actions of officer did not constitute search where the officer knocked on an improperly latched door of residence, causing it to open and allowing the officer to observe a bong. People v. Holmes, 981 P.2d 168 (Colo. 1999).

Collection and testing of urine performed as part of university's drug testing program is a "search" within the meaning of this section. Derdeyn v. Univ. of Colo., 832 P.2d 1031 (Colo. App. 1991).

The collection and testing of urine performed as part of the university of Colorado's drug testing program for intercollegiate athletics is a "search" within the meaning of this section. Derdeyn v. Univ. of Colo., 832 P.2d 1031 (Colo. App. 1991).

Using a dog trained to detect marijuana to conduct a sniff test of a stopped vehicle is a "search" under this section if the occupants of the vehicle are twenty-one years of age or older. Since Colorado allows the lawful possession of up to one ounce of marijuana by a person twenty-one years of age or older, there is a legitimate expectation of privacy related to that activity. People v. McKnight, 2 017 COA 93, 45 2 P.3d 82, aff'd, 2019 CO 36, 446 P.3d 397.

A sniff from a drug-detection dog that is trained to alert to marijuana constitutes a search under this section. Thus, a peace officer must have probable cause that an item or area contains a drug in violation of state law before deploying a drug detection dog. People v. McKnight, 2019 CO 36, 446 P.3d 397.

Because there was no probable cause to justify the search, the trial court erred in denying the motion to suppress. People v. McKnight, 2019 CO 36, 446 P.3d 397.

A defendant's statement that the vehicle does not contain marijuana does not change the fact that using a drug-detection dog is a search and probable cause is required to use the dog. People v. Gadberry, 2019 CO 37, 440 P.3d 449.

General searches forbidden. A basic consideration to control and guide the magistrate in issuing a search warrant is that general or blanket searches are forbidden, such being the very evil sought to be protected against by the adoption of the constitutional provisions against unreasonable searches and seizures. People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970).

It is not how many items may be seized that determines validity of a search, for the rule against general exploratory searches is not aimed against quantity, nor even designed to protect property quantitatively, but, instead, is designed to prevent indiscriminate searches and seizures that invade privacy. People v. Tucci, 179 Colo. 373, 500 P.2d 815 (1972).

Whether search of defendant's room was reasonable because search warrant authorized search of entire house depends on facts known to officers. Officers knew that defendant's father, the person whose unlawful activities formed the basis of the search warrant, had ready access to defendant's bedroom. The search of defendant's bedroom for the contraband identified in the search warrant was constitutionally reasonable irrespective of whether the officers were aware that defendant was paying rent to his parents. People v. Martinez, 165 P.3d 907 (Colo. App. 2007).

Executive order held not to be facially invalid under the fourth amendment. The order stated that employees must submit to screening when there is "reasonable suspicion" of illicit drug or alcohol use. The court ruled that the order did not contemplate the testing of those who did not hold safety or security-sensitive positions based only on a suspicion of off-duty use or impairment. City & County of Denver v. Casados, 862 P.2d 908 (Colo. 1993), cert. denied, 511 U.S. 1005, 114 S. Ct. 1372, 128 L. Ed. 2d 48 (1994).

Searches have been described as intrusive governmental investigations or explorations into non-public places for that which is concealed. Hoffman v. People, 780 P.2d 471 (Colo. 1989).

There was no "search" where emergency room personnel, in the course of treating the defendant for a serious injury under standard hospital procedures and not motivated by an investigatory or administrative purpose, discovered contraband hidden on his person. People v. Loggins, 981 P.2d 630 (Colo. App. 1998).

Search held unconstitutional as general exploratory search. In re People in Interest of B.M.C., 32 Colo. App. 79, 506 P.2d 409 (1973).

Officer may seize contraband discovered during valid search for other articles. If an officer is conducting a search, either under a valid search warrant or incident to a valid arrest where the search is such as is reasonably designed to uncover the articles for which he is looking, and in the course of such search discovers contraband or articles the possession of which is a crime, other than those for which he was originally searching, he is not required to shut his eyes and refrain from seizing that material under the penalty that if he does seize it it cannot be admitted in evidence. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).

An officer conducting a reasonable search, either under a valid search warrant or incident to a valid arrest, who uncovers contraband or articles the possession of which is a crime, may seize these articles even though they may not relate to the crime for which the arrest was made. Baca v. People, 160 Colo. 477, 418 P.2d 182 (1966); Roybal v. People, 166 Colo. 541, 444 P.2d 875 (1968).

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).

And that articles discovered do not relate to crime for which defendant arrested does not render search exploratory and general. Baca v. People, 160 Colo. 477, 418 P.2d 182 (1966).

Seizure of "mere evidence". When intrusions upon privacy are allowed, there is no viable reason to distinguish intrusions to secure "mere evidence" from intrusions to secure fruits, instrumentalities, or contraband. Marquez v. People, 168 Colo. 219, 450 P.2d 349 (1969).

"Mere evidence" is articles which are not fruits, instrumentalities, or contraband, and which are not per se associated with criminal activity, but which the officer executing the warrant has probable cause to believe are associated with criminal activity. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971).

People must show connection between such articles and criminal activity. 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 people. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971); People v. Wilson, 173 Colo. 536, 482 P.2d 355 (1971); People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971); People v. Bustam, 641 P.2d 968 (Colo. 1982).

"Mere evidence" which is seized within the scope of the search authorized by the warrant must be shown to have a nexus with the case in which the motion to suppress is filed and with at least one of the defendants in the case. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971); People v. Piwtorak, 174 Colo. 525, 484 P.2d 1227 (1971).

If people sustain burden, articles should not be suppressed. People v. Wilson, 173 Colo. 536, 482 P.2d 355 (1971).

When a civilian acts as an agent of the state, evidence obtained from an unlawful search must be suppressed. People v. Aguilar, 897 P.2d 84 (Colo. 1995).

Whether an individual becomes an "agent" of the police is determined by the totality of the circumstances. People v. Aguilar, 897 P.2d 84 (Colo. 1995).

Connection shown. Where objection was made to the seizure of the particular personal effects which served to identify the person or persons residing at and in control of the premises searched and the record indicated 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 the investigation of which crimes the search warrant was issued and executed. People v. Piwtorak, 174 Colo. 525, 484 P.2d 1227 (1971).

Motion to suppress granted where district attorney fails to make showing. At hearings on suppression motions in the future, when the district attorney fails to make the requisite showing, the trial court should sustain the motion as it relates to nonspecified articles not per se connected with criminal activity. People v. Wilson, 173 Colo. 536, 482 P.2d 355 (1971).

Suppression issues become moot upon entry of a guilty plea. People v. Waits, 695 P.2d 1176 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 724 P.2d 1329 (Colo. 1986).

Return of seized property. Seized property against which the government has no claim must be returned to its lawful owner. People v. Buggs, 631 P.2d 1200 (Colo. App. 1981).

Burden in motion for return of property. In a motion for return of seized property, a defendant has the burden of making a prima facie showing that goods were seized from him at the time of his arrest and are being held by law enforcement authorities. People v. Buggs, 631 P.2d 1200 (Colo. App. 1981).

Burden of proving search warrant legally executed. Trial court erred in assigning to the prosecution the initial burden of proving search warrant was legally executed. As the moving party seeking suppression of evidence seized through a search warrant, the defendant has the burden of alleging and showing that a search or seizure violated his or her right to privacy under the fourth amendment of the U.S. Constitution. If the defendant satisfies this burden, it is then upon the prosecution to show that defendant's fourth amendment rights were not violated. People v. Cunningham, 2013 CO 71, 314 P.3d 1289.

Evidence obtained by means of undercover work. So long as the agent's conduct falls short of actual instigation of a crime, which raises the defense of entrapment, the United States supreme court has refused to set aside convictions because evidence was obtained by means of undercover work by law enforcement agents. Patterson v. People, 168 Colo. 417, 451 P.2d 445 (1969).

The use of video surveillance obtained by a confidential informant when the informant is invited into the surveilled area does not violate the fourth amendment. People v. Mendez, 2 017 COA 1 2 9, __ P.3d __.

Absent exigent circumstances, it is necessary to obtain arrest warrant in order to justify entry into a private home to make an arrest. People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980).

The warrantless entry into a home in order to make an arrest, in the absence of consent or exigent circumstances, is unconstitutional. People v. Hogan, 649 P.2d 326 (Colo. 1982).

In the absence of exigent circumstances, police officers may not enter a private residence for the purpose of making a warrantless arrest without first obtaining a search warrant, even though the officers have probable cause to believe a suspect residing therein has committed a crime. People v. Magoon, 645 P.2d 286 (Colo. App. 1982).

Since police officers arrested defendant in his home without a warrant, the arrest could be justified only on the basis of consent to enter the home or on there being exigent circumstances present. People v. Santisteven, 693 P.2d 1008 (Colo. App. 1984).

Police officers may enter a residence without a search warrant to execute an arrest warrant when there is reason to believe the suspect is within. People v. Aarness, 116 P.3d 1233 (Colo. App. 2005), rev'd on other grounds, 150 P.3d 1271 (Colo. 2006).

Officers must have a reasonable belief the arrestee (1) lives at the residence and (2) is within the residence at the time of entry. People v. Aarness, 116 P.3d 1233 (Colo. App. 2005), rev'd on other grounds, 150 P.3d 1271 (Colo. 2006).

The officers had no reason to believe that the defendant lived at the address, but there were exigent circumstances that justified the police entry into the home to arrest the defendant. The circumstances were sufficient to conclude there was a substantial safety risk to both police and others to justify entry to arrest the defendant. People v. Aarness, 150 P.3d 1271 (Colo. 2006).

One's house cannot lawfully be searched without search warrant, except as incident to lawful arrest at the house. A belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. Such searches are constitutionally unlawful notwithstanding facts unquestionably showing probable cause. Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965); People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970).

But inviting officer into home to transact business waives right of privacy. When one opens his home to the transaction of business and invites another to come in and trade with him, he waives his right to privacy in the home or premises, with relation to the person who accepts that invitation to trade. When the customer turns out to be a government agent, the seller cannot then complain that his privacy has been invaded so long as the agent does no more than buy his wares. Patterson v. People, 168 Colo. 417, 451 P.2d 445 (1969).

When one opens his home to the transaction of business and invites another to come and trade with him, he breaks the seal of sanctity and waives his right to privacy. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971).

There is no unreasonable search when an undercover agent, posing as a willing participant in an unlawful transaction, gains entry by invitation and observes or is handed contraband. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971); People v. Nisser, 189 Colo. 471, 542 P.2d 84 (1975).

But once police officers are illegally on premises, they may not make use of anything observed or seized therein to form the basis for a determination of probable cause to arrest the occupants. People v. Baird, 172 Colo. 112, 470 P.2d 20 (1970).

Police officer did not make a request to search defendant's residence merely by knocking on the door and identifying himself as a police officer. People v. Turner, 730 P.2d 333 (Colo. App. 1986).

No invasion of privacy where officers knocked on the door of defendant's house to investigate possible traffic offense. People v. Baker, 813 P.2d 331 (Colo. 1991).

Police officer's testimony was properly allowed when the officer testified that the defendant slammed the door in the officer's face after the officer identified himself as a police officer because there was no evidence that the officer requested to search the premises before the door was slammed. People v. Turner, 730 P.2d 333 (Colo. App. 1986).

Arrest during perpetration of crime. There is no constitutional requirement for an arrest warrant when the arrest is effected in the motel room of another during the perpetration of a crime. People v. Velasquez, 641 P.2d 943 (Colo.), 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).

Answering defendant's telephone following arrest not unconstitutional. Where for over an hour following the defendant's arrest the officers continued to answer the telephone which rang repeatedly, and the court permitted these officers to testify as to conversations that they had over the phone with unidentified persons on the other end of the line relating to inquiries as to odds and placing of bets and the defendant contended that "seizure" of the contents of these telephone calls was unconstitutional, there were no perceived violations of the United States or Colorado constitution. McNulty v. People, 174 Colo. 494, 483 P.2d 946 (1971).

And arrest not invalidated by misapprehension as to officer's identity. An arrest made by reason of observed violation of law is not invalid because of the fact that the arresting officer was invited into a home under a misapprehension of his identity by the home's occupant, which misapprehension was known to the arresting officer. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971).

Arrest can only be justified by information available to officer immediately prior to arrest. 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); People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971).

And prior record of arrest, in and of itself, cannot justify repeated intrusions on person's constitutional rights. Cowdin v. People, 176 Colo. 466, 491 P.2d 569 (1971).

Full search of person in custody, including trace metal test, is reasonable, and evidence of and comment on refusal of defendant to comply with lawful request for nontestimonial evidence is proper where probative value of evidence outweighs prejudicial effect. People v. Larson, 782 P.2d 840 (Colo. App. 1989).

Police are permitted to search a lawfully arrested person and the area within the arrestee's immediate control. People v. Aguilar, 897 P.2d 84 (Colo. 1995).

Acts of one member do not give probable cause to arrest whole group. The furtive acts of one of a hippy group, which was apparently together for an utterly innocent reason, do not give an officer cause to arrest the whole group. People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971).

Police to identify selves before forced entry. Even with a valid warrant, before police officers attempt a forced entry into a house, they must first identify themselves and make their purpose known. People v. Godinas, 176 Colo. 391, 490 P.2d 945 (1971).

Forceful, warrantless entry into an apartment by police officers for purposes of securing the apartment until a search warrant arrived was in violation of defendants' constitutional rights. People v. Hannah, 183 Colo. 9, 514 P.2d 320 (1973).

Exceptions. When police officers attempt a forced entry, they must first identify themselves and make their purpose known, unless (1) the warrant expressly authorizes forced entry without such a prior announcement, or (2) the circumstances known to such officer or person at the time of forced entry, but, in the case of the execution of a warrant, unknown to the applicant when applying for such warrant, give him probable cause to believe that (a) such notice is likely to result in the evidence subject to seizure being easily and quickly destroyed or disposed of, which is true in every case involving a search for narcotics, (b) such notice is likely to endanger the life or safety of the officer or other person, (c) such notice is likely to enable the party to be arrested to escape, or (d) such notice would be a useless gesture. People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971).

And officers must show circumstances justifying forced entry. Where the notice and purpose requirement is to be dispensed with, the officers must sustain the burden of showing the exigent circumstances under which they assumed the power to enter forcibly. People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971).

Forceful entries need not involve the actual breaking of doors and windows. People v. Godinas, 176 Colo. 391, 490 P.2d 945 (1971).

But forced entries may include any entries made without permission. People v. Godinas, 176 Colo. 391, 490 P.2d 945 (1971).

Circumstances need not always be determined by magistrate prior to forced entry. Police discretion should not always be limited by requiring that the exigent circumstances authorizing forced entry without prior announcement be determined by the magistrate, since in many instances, the facts requiring immediate entry by force will not be known to the officer when he obtains the warrant. People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971).

Forced entry found where officers, acting without a "no-knock" search warrant, identified themselves to unidentified persons sitting on front porch of house who were not apparently owners or occupiers of the house, opened a closed but unlocked door, and, once inside the house, identified themselves to wife of defendant and indicated to her that a search warrant had been issued. People v. Gifford, 782 P.2d 795 (Colo. 1989).

Prosecution must demonstrate by clear and convincing evidence that an occupant freely gave the police consent to enter the premises. In the course of making an inquiry, a police officer is not entitled to walk past the person opening the door to a house without obtaining permission to enter the house. People v. O'Hearn, 931 P.2d 1168 (Colo. 1997).

One area traditionally recognized as deserving of special protection from unwarranted government intrusion is the area immediately surrounding a private residence, or the curtilage. Hoffman v. People, 780 P.2d 471 (Colo. 1989).

Fact that search occurs within curtilage is not dispositive, if area's public accessibility dispels any reasonable expectation of privacy. People v. Shorty, 731 P.2d 679 (Colo. 1987).

Gate entrance held open to the public that led to basement, along with basement lights being on and defendant's evasive responses to questions about co-inhabitants of premises, supported trial court's conclusion that officers had a reasonable basis to walk onto the premises through open gate and knock on basement door. People v. Cruse, 58 P.3d 1114 (Colo. App. 2002).

In general, a curtilage is not protected from observations that are lawfully made from outside its perimeter not involving physical intrusion. The U.S. supreme court has identified four factors to consider in defining the extent of a home's curtilage: The proximity of the area claimed to be curtilage to the home; whether the area is included within an enclosure surrounding the home; the nature of the uses to which the area is put; and the steps taken by the resident to protect the area from observation by people passing by. Hoffman v. People, 780 P.2d 471 (Colo. 1989); People v. Bartley, 791 P.2d 1222 (Colo. App. 1990), aff'd, 817 P.2d 1029 (Colo. 1991).

Police entry into curtilage of premises held reasonable. Blincoe v. People, 178 Colo. 34, 494 P.2d 1285 (1972).

Flying over a person's back yard in a helicopter to determine whether such person is cultivating marijuana constitutes a search for the purposes of the fourth amendment to the U.S. Constitution and if done without a warrant, it is an illegal search. People v. Pollock, 796 P.2d 63 (Colo. App. 1990).

Television news helicopter flyover of private residence did not constitute a search where helicopter flew within permissible FAA altitude range, posed limited degree of intrusiveness, and where marijuana plants growing in shed were in plain view to anyone legally observing the shed from helicopter. Henderson v. People, 879 P.2d 383 (Colo. 1994).

Motion to suppress was properly denied where information obtained by an airplane flight was not necessary to the validity of the affidavit for search warrant since information obtained independently of that aerial survey supplied probable cause for issuance of a warrant to search the defendant's property for stolen wheat and vehicles that transported it. Bartley v. People, 817 P.2d 1029 (Colo. 1991).

Where constitutionally admissible evidence establishing the defendant's guilt was overwhelming, the admission of evidence gained by flying over the defendant's property, including photographs taken during that flight, even if impermissibly received, was harmless beyond a reasonable doubt. Bartley v. People, 817 P.2d 1029 (Colo. 1991).

Where defendant did not object at trial, review was for plain error and to determine whether testimony by police that defendant refused a search of his home so affected the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction, but, because evidence of defendant's guilt was so overwhelming, any error was harmless beyond a reasonable doubt. People v. Perry, 68 P.3d 472 (Colo. App. 2002).

This section did not require suppression of the information obtained from an airplane flight, even if it was assumed that the objects photographed were within the curtilage on defendant's property, where there is no contention that the flight path or altitude of the airplane violated any applicable law or regulation or that the information obtained was not visible to the naked eye. People v. Bartley, 791 P.2d 1222 (Colo. App. 1990), aff'd, 817 P.2d 1029 (Colo. 1991).

For history of rule of prior notice by police officers, see People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971).

Searches conducted by prison officials, whose charge is to operate the prisons in a safe and orderly manner, are not unreasonable so long as they are not conducted for the purpose of harassing or humiliating an inmate, or in a cruel and unusual manner. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972); People v. Valenzuela, 41 Colo. App. 375, 589 P.2d 71 (1978).

Where defendant, knowing the jailer's presence was imminent, voluntarily stated that he was one who shot victim, jailer's overhearing of statement was not violation of defendant's right to privacy under this section. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972).

Body cavity searches of inmates of penal institutions are permissible unless it can be demonstrated that such searches bear no reasonable relationship to the requirements of maintaining security. People v. Valenzuela, 41 Colo. App. 375, 589 P.2d 71 (1978).

Warrantless searches of penitentiary visitors rejected. Suggestion of the attorney general that warrantless searches of penitentiary visitors and their automobiles should be permitted under a relaxed standard of probable cause and that perhaps reasonable suspicion would be sufficient to support such searches was rejected. People v. Thompson, 185 Colo. 208, 523 P.2d 128 (1974).

But could require consent to search as condition of visiting penitentiary. The court did recognize that circumstances involving penitentiary visitation and the bringing of contraband into a penitentiary could be a basis for the adoption of strict rules to be properly posted which would include consent to search as a condition of exercising the privilege of entering the penal institution to visit a prisoner. People v. Thompson, 185 Colo. 208, 523 P.2d 128 (1974).

Searches by public school officials. The prohibition against unreasonable searches and seizures applies to searches conducted by public school officials. To determine the reasonableness of a search and seizure involving a student, the student's expectation of privacy shall be balanced against the "substantial interest of teachers and administrators in maintaining discipline in the classroom and school grounds" and the school's "legitimate need to maintain an environment in which learning can take place". The test under New Jersey v. T.L.O. (469 U.S. 325, 105 S. Ct. 733, 83 L. Ed. 2d 720 (1985)) to determine the legality of school searches involves a twofold inquiry: First, whether the action was justified at its inception; and second, whether the search as actually conducted was reasonably related in scope to the circumstances which justified the initial interference. People in Interest of P.E.A., 754 P.2d 382 (Colo. 1988); Martinez v. Sch. Dist. No. 60, 852 P.2d 1275 (Colo. App. 1992).

The first prong of the test, that a search is justified at its inception, is satisfied if there are specific and articulable facts known to the officer which, with rational inferences, creates a reasonable suspicion of criminal activity. This standard has been met where search of a student's vehicle by principal and security officer was based on a police officer's information that two other minors had brought marijuana to school, search of these two minors and their lockers failed to reveal the marijuana, and the principal had further information that one of the searched minors had been driven to school by the student. In view of the substantial state interests triggered by the contemplated sale of marijuana to other students, the measures taken by school officials in search of the student, his locker, and his car, which provided the means for transporting the marijuana to the school and for concealing the contraband, were reasonably related to the objectives of the search. As such, the second prong of the test, that the scope of the search be reasonable, was satisfied. People in Interest of P.E.A., 754 P.2d 382 (Colo. 1988); People in Interest of F.M., 754 P.2d 390 (Colo. 1988).

The two-prong test was met where a monitor for a school dance required two students attending the dance to submit to a "breath test" to determine whether the students were under the influence of alcohol. Martinez v. Sch. Dist. No. 60, 852 P.2d 1275 (Colo. App. 1992).

Detention for questioning. In order lawfully to detain an individual for questioning, (1) the 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. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971); People v. Lidgren, 739 P.2d 895 (Colo. App. 1987).

Detention for fingerprints may constitute a much less serious intrusion upon personal security than other types of police searches and detentions: Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search; detention cannot be employed repeatedly to harass any individual, since the police need only one set of each person's prints; fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the "third degree"; and, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time. Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972).

An intrusion pursuant to a court order for non-testimonial identification, under Crim. P. 41.1, clearly is within the scope of this section and the search and seizure clause of the fourth amendment. People v. Madson, 638 P.2d 18 (Colo. 1981); People v. Harris, 729 P.2d 1000 (Colo. App. 1986), aff'd, 762 P.2d 651 (Colo.), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 103 L. Ed. 2d 804 (1988).

Arrest of defendant for palmprinting may be reasonable. Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972).

And evidence obtained thereby is properly received in evidence. Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972).

Stopping motorist at a sobriety checkpoint is not an unreasonable seizure in violation of the constitution. People v. Rister, 803 P.2d 483 (Colo. 1990); Orr v. People, 803 P.2d 509 (Colo. 1990).

Warrantless administrative searches of commercial property do not necessarily violate the fourth amendment, but inspections of commercial property may be unreasonable if they are not authorized by law, are unnecessary for the furtherance of governmental interests, or are so random, infrequent, or unpredictable that the owner has no real expectation that his property will be inspected from time to time by governmental officials. People v. Escano, 843 P. 2 d 111 (Colo. App. 199 2 ); Maralex Res., Inc. v. Colo. Oil & Gas Conservation Comm'n, 2018 COA 40, 428 P.3d 657.

Warrantless search of storage locker held proper where officer reasonably believed that the lessor had authority to consent to the entry into the locker. The test is whether the police officer's belief that a third party had authority to consent is objectively reasonable. People v. Upshur, 923 P.2d 284 (Colo. App. 1996).

Contact between police and citizen constitutes seizure when police restrain citizen's liberty by physical force or show of authority. People v. Carillo-Montes, 796 P.2d 970 (Colo. 1990).

Determination of "seizure" resolved by objective standard. The determination of the issue whether a person has been seized must be resolved by an objective standard -- that is, whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. People v. Bookman, 646 P.2d 924 (Colo. 1982); People v. Pancoast, 659 P.2d 1348 (Colo. 1982); People v. Tottenhoff, 691 P.2d 340 (Colo. 1984); People v. Carillo-Montes, 796 P.2d 970 (Colo. 1990).

Not every personal confrontation between a police officer and a citizen, which results in some form of interrogation directed to the citizen, necessarily involves a "seizure" of the person. People v. Pancoast, 659 P.2d 1348 (Colo. 1982); People v. T.H., 892 P.2d 301 (Colo. 1995).

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).

An unconscious person cannot perceive that there has been a show of authority directed against him, therefore, defendant could not have been seized within the meaning of the fourth amendment. By the time defendant awoke, the officer had reasonable suspicion justifying the investigatory stop. Tate v. People, 2012 CO 75, 290 P.3d 1268.

A police officer's chase of a suspect does not trigger the protections of the fourth amendment because the chase does not constitute a seizure. People v. Archuleta, 980 P.2d 509 (Colo. 1999).

Whenever detention by police officer is more than brief, there is an arrest which must be supported by probable cause. People v. Schreyer, 640 P.2d 1147 (Colo. 1982).

However, when determining when detention is too long in duration, it is appropriate to examine whether police were diligent in pursuing means of investigation likely to resolve their suspicions quickly, and it is also relevant to consider circumstances during stop which give rise to deeper suspicion or justify longer detention. People v. Lidgren, 739 P.2d 895 (Colo. App. 1987).

Police officers' initial contact with the defendant was not a seizure or an investigatory stop, but rather was a consensual interview. Because the officers approached the house in a non-threatening manner, did not detain the defendant, and asked rather than demanded the defendant's name, the totality of the circumstances showed that the encounter was not so intimidating as to make the defendant feel he was not free to leave or to refuse to answer the officers' questions. It was irrelevant that the officers went to the defendant's house intending to question him and obtain a search waiver. People v. Melton, 910 P.2d 672 (Colo. 1996).

District court failed to appreciate that police officers' initial contact with defendants fell short of a stop, and, by the time the contact became a stop, the officers had the requisite reasonable, articulable suspicion and later probable cause to justify a weapon pat-down and subsequent arrest. The officers approached a parked truck in a parking lot and indicated there was a report of criminal activity and asked some questions. That contact and the questions did not constitute a stop for fourth amendment purposes. Only when the officers asked one defendant to get out of the truck with his hands up did it become a stop, and at that point the officers had reasonable articulable suspicion to justify the pat-down that produced the probable cause for the arrests. People v. Fields, 2018 CO 2, 411 P.3d 661.

Not all seizures are arrests. Not all forms of police intrusion which lead a person to reasonably believe that he is not free to leave constitute, on that basis alone, arrests which must be supported by probable cause. People v. Lewis, 659 P.2d 676 (Colo. 1983).

When a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person in a constitutional sense; but it does not follow that the seizure necessarily amounts to an arrest which must be supported by probable cause. People v. Lewis, 659 P.2d 676 (Colo. 1983).

Seizures refer to some meaningful interference with an individual's possessory interest in personal property such as the physical taking and removing of such property. Hoffman v. People, 780 P.2d 471 (Colo. 1989).

A seizure must involve a meaningful interference with the possessory interest. The removal of a luggage claim tag does not constitute a seizure. However, when an officer moves the luggage to a new location, uses a ruse to identify the owner of the luggage, and maintains a prolonged detention of the luggage, a seizure occurs. People v. Ortega, 34 P.3d 986 (Colo. 2001).

Merely confronting parolee with evidence is not sufficient to raise the infringement on his liberty, if any, to the type that is associated with a formal arrest. Confronting parolee with suspected methamphetamine and paraphernalia found in his bedroom was not the equivalent of communicating to him that he would not be released after the interrogation because he would be charged with an arrestable offense. The trial court erred in suppressing a statement made by the parolee following the search of his residence by his parole officer and a member of the police department. People v. Cline, 2019 CO 33, 439 P.3d 1232.

Standing. Trial court is not required to decide issues of standing prior to hearing evidence as to legality of contested searches. People v. Tufts, 717 P.2d 485 (Colo. 1986).

Person in possession of keys to automobile has a reasonable expectation of privacy in contents of car and has standing to challenge search of car. People v. Tufts, 717 P.2d 485 (Colo. 1986).

To establish standing, the defendant must demonstrate a sufficient connection to the areas searched to support a legitimate expectation of privacy in those areas. Determination of a sufficient connection is based on the totality of the circumstances. The lack of a proprietary or possessory interest is not necessarily determinative. People v. Curtis, 959 P.2d 434 (Colo. 1998).

An unauthorized driver of a rental car has standing to contest the search of the driver's gift-wrapped packages in the car. First, the driver exhibited an actual, subjective privacy expectation in the packages. Second, society would recognize the driver's privacy expectation in gift-wrapped packages as reasonable. Based on the totality of the circumstances, the driver had a legitimate expectation of privacy in the packages. People v. Sotelo, 2014 CO 74, 336 P.3d 188.

To challenge a search and seizure, the complaining party must establish that he had a reasonable expectation that the location searched and the items seized would be free from nonconsensual, unreasonable police intrusion. People v. Mickens, 734 P.2d 646 (Colo. App. 1986).

Facts provided by anonymous caller and corroborated by officers provided reasonable basis to support stopping of car. People v. Melanson, 937 P.2d 826 (Colo. App. 1996).

Observation through motel window not search. Where a police officer, while walking on a sidewalk used as a common entrance way to a motel unit, observes through a window the actions of a defendant occurring inside a motel unit, the observations of the officer do not constitute a search in the constitutional sense of that term. People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1439, 71 L. Ed. 2d 655 (1982); People v. Donald, 637 P.2d 392 (Colo. 1981).

The observations of a police officer which are made through a car window and which are illuminated by a flashlight do not constitute a search. People v. Romero, 767 P.2d 1225 (Colo. 1989); People v. Dickinson, 928 P.2d 1309 (Colo. 1996).

No requirement of "close proximity" standard for forfeiture of contents of building declared a public nuisance. Since forfeiture statute is a civil statute, once the people make a prima facie case that contents of a house were used in criminal activity, burden shifts to the owner of the property to show why it should not be seized. People v. Lot 23, 735 P.2d 184 (Colo. 1987).

Ordering nontestimonial identification under Crim. P. 41.1 does not deprive a person of procedural safeguards even though the offenses involved were committed in another jurisdiction. Ginn v. County Court, 677 P.2d 1387 (Colo. App. 1984).

Crim. P. 41.1 is limited to non-testimonial identification evidence only and does not authorize the acquisition of testimonial communications protected by the privilege against self-incrimination. People v. Harris, 729 P.2d 1000 (Colo. App. 1986).

Defendant's consent to search was voluntary and not the result of coercion. Defendant's parents provided guidance and advice before, during, and after the interrogation. The parents' position that they approved of DNA testing was consistent throughout. There is no requirement that the defendant's parents be present during the sample collection. People v. Lehmkuhl, 117 P.3d 98 (Colo. App. 2004).

Evidence offered for impeachment purposes of defendant's refusal to consent to a search does not impermissibly burden the fourth amendment right to be free from unreasonable searches and seizures. If defendant testifies at trial, evidence of the refusal to consent may be admitted to impeach defendant's testimony, and the prosecution may comment on the refusal in closing argument. People v. Chavez, 190 P.3d 760 (Colo. App. 2007).

The law of the case doctrine does not apply when the police secure a search warrant after a suppression order is issued for the evidence if the issue in the second suppression hearing raises a different legal issue. People v. George, 2 017 COA 75, __ P.3d __.

Seizure and subsequent impound search of vehicle unconstitutional because existence of standardized criteria or policies is necessary condition of community caretaking exception to warrant requirement. People v. Allen, 2019 CO 88, 450 P.3d 724.

B. With Warrant.

Officers must obtain search warrant whenever reasonably practicable. Officers who plan to enter premises to conduct a search must obtain a search warrant for a legitimate entry whenever reasonably practicable even if the officers have probable cause for the search. People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971).

Only judicial officer may issue search warrant. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).

And only judicial officer may alter warrant. The right to alter, modify, or correct a search warrant is necessarily vested only in a judicial officer. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).

Alteration by police office improper. Alteration of a search warrant by a police officer is usurpation of the judicial function and, therefore, improper. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).

Failure to comply with ministerial requirements does not invalidate warrant. Failure to comply with the requirements of a rule relating to the making of the return and inventory, which requirements are ministerial in nature, does not render the search warrant or the seizure of the property pursuant thereto invalid. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).

Copy of affidavit need not be attached. 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).

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).

Search warrant should not be broader than justifying basis of facts. People v. Clavey, 187 Colo. 305, 530 P.2d 491 (1975).

The information upon which the warrant was based justified a general search of the premises. People v. Lot 23, 707 P.2d 1001 (Colo. App. 1985), aff'd in part and rev'd in part on other grounds, 735 P.2d 184 (Colo. 1987).

Having probable cause to search for drugs and paraphernalia, the officers were authorized to search in places where such items might reasonably be expected to be secreted. Therefore, the search of closed containers was reasonable. People v. Lot 23, 707 P.2d 1001 (Colo. App. 1985), aff'd in part and rev'd in part on other grounds, 735 P.2d 184 (Colo. 1987).

Particularity requirement serves multiple purposes. It prevents a general search, it curtails the issuance of search warrants on loose and vaguely stated bases in fact, and it prevents the seizure of one thing under a warrant describing another. People v. Hearty, 644 P.2d 302 (Colo. 1982); People v. Hart, 718 P.2d 538 (Colo. 1986).

Probable cause requires that the affidavit allege sufficient facts to warrant a person of reasonable caution to believe that contraband or evidence of criminal activity is located on the premises to be searched. People v. Ball, 639 P.2d 1078 (Colo. 1982); People v. Hearty, 644 P.2d 302 (Colo. 1982); People v. Campbell, 678 P.2d 1035 (Colo. App. 1983); People v. Arellano, 791 P.2d 1135 (Colo. 1990); People v. Abeyta, 795 P.2d 1324 (Colo. 1990); People v. Hakel, 870 P.2d 1224 (Colo. 1994).

There was reasonable probability that evidence would be located at a particular location where affidavit established that all three residences were under defendant's control and were contiguous pieces of property. People v. Salazar, 715 P.2d 1265 (Colo. App. 1985), cert. denied, 744 P.2d 80 (Colo. 1987).

In a trial against a defendant for possession of a controlled substance, evidence obtained pursuant to a search warrant was inadmissible where the affidavit supporting the request for a search warrant, after excluding information obtained pursuant to an illegal warrantless search of the defendant's home, contained insufficient information to establish probable cause that evidence of a crime would be found in the defendant's house. People v. Sprowl, 790 P.2d 848 (Colo. App. 1989).

An affidavit must be interpreted in a common sense and realistic fashion in determining whether the constitutional standard of probable cause has been satisfied. People v. Arellano, 791 P.2d 1138 (Colo. 1990); Bartley v. People, 817 P.2d 1029 (Colo. 1991); People v. Hakel, 870 P.2d 1224 (Colo. 1994).

In assessing the validity of a warrant, it is to be tested in a common sense and realistic fashion. People v. McKinstry, 843 P.2d 18 (Colo. 1993).

Standard for determining whether a search warrant complies with constitutional requirements is one of practical accuracy rather than technical nicety. Accordingly, highly technical attacks on warrants and affidavits are not well received. People v. McKinstry, 843 P.2d 18 (Colo. 1993); People v. Martinez, 898 P.2d 28 (Colo. 1995); People v. Schrader, 898 P.2d 33 (Colo. 1995).

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. Abeyta, 795 P.2d 1324 (Colo. 1990); Bartley v. People, 817 P.2d 1029 (Colo. 1991); People v. Hakel, 870 P.2d 1224 (Colo. 1994); People v. Page, 907 P.2d 624 (Colo. App. 1995).

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).

The issuing magistrate has to make a practical, common sense decision whether, given all of the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is fair probability that contraband of a crime will be found in a particular place. People v. Abeyta, 795 P.2d 1324 (Colo. 1990).

The duty of the reviewing court is to determine whether the magistrate had a substantial basis for concluding that probable cause existed; that determination of probable cause is entitled to great deference and any doubts must be resolved in favor of that determination because of the constitutional preference for investigating officers to obtain warrants in lieu of pursuing some basis for warrantless searches. People v. Dunkin, 888 P.2d 305 (Colo. App. 1994); People v. Page, 907 P.2d 624 (Colo. App. 1995).

Whether facts in an affidavit provided by a confidential informant establish probable cause for a search warrant depends not on a rigid set of legal rules but on a practical, nontechnical totality of the circumstances approach that considers an informant's veracity, reliability, and basis of knowledge. Under the totality-of-the-circumstances test, an informant's account of criminal activities need not establish the informant's basis of knowledge, so long as the informant's statement is sufficiently detailed to allow a judge to reasonably conclude that the informant had access to reliable information about the illegal activities reported to the police. People v. Abeyta, 795 P.2d 1324 (Colo. 1990); People v. Dunkin, 888 P.2d 305 (Colo. App. 1994).

Due consideration should also be given to a law enforcement officer's experience and training in determining the significance of the officer's observations relevant to probable cause set forth in the affidavit. Bartley v. People, 817 P.2d 1029 (Colo. 1991); People v. Dunkin, 888 P.2d 305 (Colo. App. 1994).

Probability, not certainty, is the touchstone of probable cause, and deference should be given to the initial judicial determination regarding probable cause; however, in recognition of the significance of a person's right to privacy in his or her residence, law enforcement officials should in all but the most compelling of circumstances obtain warrants prior to performing any search of a residence. People v. Hakel, 870 P.2d 1224 (Colo. 1994).

Even if an affidavit does not establish the informant's basis of knowledge for the reported criminal activity or the veracity of the reported information, police corroboration of the information that obviously relates to and describes criminal activities may properly be considered in a probable cause determination. People v. Abeyta, 795 P.2d 1324 (Colo. 1990).

Once a lawful search warrant is issued, the scope of the search is defined by the scope of the warrant rather than an individual's expectation of privacy in any particular area or item. Because defendant's purse was found in a room to which defendant had access and because the purse was a container in which defendant could have reasonably hidden contraband, the search of defendant's purse was within the scope of the search warrant. People v. Webb, 2014 CO 36, 325 P.3d 566.

A strip search is outside the scope of a warrant for search "upon person". A strip search must be specifically authorized by a warrant that includes an articulable basis for the more invasive search or by officers having particularized reasonable suspicion that the defendant has hidden contraband on his or her body. People v. King, 292 P.3d 959 (Colo. App. 2011).

Warrant must particularly describe place to be searched. The fourth amendment and this section require that a warrant particularly describe the place to be searched. People v. Lucero, 174 Colo. 278, 483 P.2d 968 (1971).

It is required that the house or home to be searched must be particularly described or described as near as may be. People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970).

Sufficiency of description in warrant of place to be searched. 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).

Where warrant stated that defendant owned several properties and ownership was independently verified, and where police independently established that informant knew how to reach defendant's property, the affidavit demonstrated reasonable grounds to believe the stolen goods would be found on defendant's property. People v. Salazar, 715 P.2d 1265 (Colo. App. 1985), cert. denied, 744 P.2d 80 (Colo. 1987).

Warrant which gives a generic description of the items to be searched is sufficient when the facts necessitate a broad search. People v. Hart, 718 P.2d 538 (Colo. 1986).

Particular apartment within apartment building must be described. 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. Avery, 173 Colo. 315, 478 P.2d 310 (1970); People v. Alarid, 174 Colo. 289, 483 P.2d 1331 (1971).

Where the warrant merely describes the entire multiple-occupancy structure by street address only, without reference to the particular dwelling unit or units sought to be searched, it is constitutionally insufficient and the evidence seized pursuant to such warrant will be suppressed upon proper motion. People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970); People v. Alarid, 174 Colo. 289, 483 P.2d 1331 (1971).

A search of a subunit under a general warrant authorizing search of the entire structure but not the particular subunit is unlawful and evidence seized as a result of such search will be suppressed. People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970).

Where a structure is divided into several occupancy units, or is a multi-unit dwelling, and there is no common occupancy of the entire structure by all of the tenants, a search warrant which merely describes or identifies the larger multiple-occupancy structure and not the particular sub-units to be searched is insufficient to meet the constitutional requirements of particularity of description. People v. Myrick, 638 P.2d 34 (Colo. 1981).

As apartment dwellers or roomers are entitled to same constitutional protections against unlawful searches and seizures as persons living in single-family residences. People v. Arnold, 181 Colo. 432, 509 P.2d 1248 (1973).

Exception where officers do not know that multi-family dwelling involved. 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 did they have reason to know that they were dealing with a multi-family dwelling when obtaining the warrant, and providing that they confined 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); People v. Maes, 176 Colo. 430, 491 P.2d 59 (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).

When the police executed the warrant and discovered that the building was not a single-family residence, as the warrant described, but was instead divided into subunits, they did not have to abandon their search and obtain a new warrant, for had they elected to delay their search to obtain an amended warrant, they would have jeopardized the search and the loss of evidence. People v. McGill, 187 Colo. 65, 528 P.2d 386 (1974).

But when officers knew or should have known that house was not one-family residence, and the fact that the officers had notice of the separate dwelling facilities located in the basement of the residence was evident from the affidavit of an officer containing the facts provided by the confidential, reliable informant, which indicated that the downstairs rooms had been used as separate living quarters by nonfamily members on a possible rental basis and the record also indicated that there was a separate outside entrance leading to the basement apartment and that the tenant utilized the separate entrance in going to and from the apartment, the general rule as to multiple-occupancy structures was applicable, and a warrant describing the entire house by street address only was constitutionally insufficient since no facts were presented which could 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).

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).

Where warrant specified a street address 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).

The fourth amendment generally requires officers to knock before executing a search warrant except when the warrant specifically authorizes a "no-knock" or the particular facts and circumstances known to the officer at the time the warrant is executed adequately justify dispensing with the requirement to knock. In this case the officers had reasonable suspicion that knocking would result in destruction of the drugs subject to seizure. People v. King, 292 P.3d 959 (Colo. App. 2011).

Search must be one in which officers look for specific articles. A search, whether under a valid warrant or as incident to a lawful arrest, must be one in which the officers are looking for specific articles and must be conducted in a manner reasonably calculated to uncover such article; any more extensive search constitutes a general exploratory search and is contrary to the constitutional guarantee against unreasonable search and seizure. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); People v. Drumright, 172 Colo. 577, 475 P.2d 329 (1970).

To countenance seizure of evidence not specified in the warrant and unrelated to the criminal matters under investigation would open wide the doors to general searches and seizures based upon mere suspicion but not upon probable cause as constitutionally required. People v. LaRocco, 178 Colo. 196, 496 P.2d 314 (1972).

An entire search would only seem to become invalid if its general tenor was that of an exploratory search for evidence not specifically related to the search warrant. People v. Tucci, 179 Colo. 373, 500 P.2d 815 (1972); People v. Lewis, 710 P.2d 1110 (Colo. App. 1985).

Personal property of guest on premises is not subject to search under search warrant. People v. Lujan, 174 Colo. 554, 484 P.2d 1238 (1971).

Where probable cause exists for arrest, search of personal property of guests of a house subject to a search warrant is a lawful search. People v. Tufts, 717 P.2d 485 (Colo. 1986).

Description in warrant of articles to be seized. Description of items in a search warrant to be seized must be specific. People v. Clavey, 187 Colo. 305, 530 P.2d 491 (1975); People v. Donahue, 750 P.2d 921 (Colo. 1988).

Technical requirements of elaborate specificity of articles to be seized by warrant once enacted under common-law pleadings have no proper place in this area. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).

The rationale concerning the degree of particularity of description for a search warrant is stated to be one of necessity. If the purpose of the search is to find a specific item of property, it should be so particularly described in the warrant as to preclude the possibility of the officer seizing the wrong property; whereas, on the other hand, if the purpose is to seize not a specific property, but any property of a specified character, which by reason of its character is illicit or contraband, a specific particular description of the property is unnecessary and it may be described generally as to its nature or character. People v. Schmidt, 172 Colo. 285, 473 P.2d 698 (1970).

If the purpose of search is to seize, not a specific property, but any property of a specified character, which by reason of its character is illicit or contraband, a specific particular description of the property is unnecessary and it may be described generally as to its nature or character. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

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 $20 bill. There was reasonable certainty of description. People v. Piwtorak, 174 Colo. 525, 484 P.2d 1227 (1971).

The term "narcotic paraphernalia" is not so vague as to make a search warrant a general warrant. People v. Henry, 173 Colo. 523, 482 P.2d 357 (1971).

Where the affidavit contains information which justifies the magistrate in believing that upon a search of the particular premises not only marijuana but other narcotics might be found, a warrant describing "a quantity of narcotic drugs" is in order. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

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).

Computers reasonably likely to serve as "containers" for writings or the functional equivalent of "written and printed material", thus seizure and removal of computers for a subsequent search pursuant to a second, more detailed warrant, was authorized by warrant allowing seizure of written or printed material. People v. Gall, 30 P.3d 145 (Colo. 2001).

Seizure of a digital camera under a search warrant that authorized seizure of physical devices that can transmit and receive information from computers or technological containers was permitted. People v. Raehal, 2 017 COA 18, 401 P.3d 117.

After a law enforcement agency lawfully seizes a camera within the scope of a search warrant, it does not have to search the contents of the camera within the deadline authorized in the warrant. People v. Raehal, 2 017 COA 18, 401 P.3d 117.

Warrant authorized search and seizure of all computer and non-computer equipment and written materials in plaintiff's house, without any mention of any particular crime to which they might be related, essentially authorizing a general exploratory rummaging through plaintiff's belongings for any unspecified criminal offense, and was therefore invalid under the particularity clause of the fourth amendment. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010).

If items not described with sufficient particularity, they should be suppressed. All times seized under a search warrant that failed to describe the things to be seized with sufficient particularity should be suppressed. People ex rel. McKevitt v. Harvey, 176 Colo. 447, 491 P.2d 563 (1971).

Insufficient description. Where, in the space provided in the warrant for the description of the property to be seized, there appeared a description of the location of the home of the defendant, and this incorrect language doubtless was inserted by mistake, and the person who completed the warrant intended to insert the required description of the property to be seized, this was, however, not the type of mere "technical omission" that was excused in previous cases. It goes rather to the very essence of the constitutional requirement that a warrant describes the person or thing to be seized, as near as may be. People v. Drumright, 172 Colo. 577, 475 P.2d 329 (1970).

Search exceeded particularity described in warrant. Text messages that are beyond the scope of a warrant are inadmissible. People v. Herrera, 2015 CO 60, 357 P.3d 1227.

Proper procedure where officer holds defective search warrant. Where an officer holds a defective search warrant, the procedure of returning the warrant to the judicial officer who issued it while other officers remain on the premises conforms to the constitutional requirements that govern search and seizure. Mayorga v. People, 178 Colo. 106, 496 P.2d 304 (1972).

Unsuccessful attempt to force entry without express authority does not render subsequent warranted search invalid. Where police attempted an unauthorized "no knock" entry but actual entry was carried out as authorized by warrant, subsequent search and seizure was not rendered invalid by mere attempt to force entry. People v. Fox, 691 P.2d 349 (Colo. App. 1984).

Entire business record system searched. When the alleged crime involves the entire business operation of the place searched, all files of the business may be searched. People v. Lewis, 710 P.2d 1110 (Colo. App. 1985).

Warrant not required for searching lawfully seized property. A second search warrant is not required to open a safe seized during a lawful search. People v. Press, 633 P.2d 489 (Colo. App. 1981).

Subpoena limiting scope of records in tax investigation meets constitutional standards. Where the department of revenue was investigating personal and business tax liability and the subpoena limited the scope of the records by subject and date, the documents sought were relevant and identified specifically enough to meet constitutional standards. Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980).

Search of law office must be limited. Any search of a law office for client files and materials must be precisely limited and restricted to prevent an exploratory search. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982).

Rigid adherence to the particularity requirement is appropriate where a lawyer's office is searched for designated documents. Anything less than a strict limitation of the search and seizure to those documents particularly described in the warrant could result in a wholesale incursion into privileged communications of a highly sensitive nature. People v. Hearty, 644 P.2d 302 (Colo. 1982).

Privacy interests relating to law office searches. There is an enhanced privacy interest underlying the attorney-client relationship which warrants a heightened degree of judicial protection and supervision when law offices are the subject of a search for client files or documents. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982).

The unmonitored search of a lawyer's office endangers the privacy interest not only of those clients against whom the search is directed but also the privacy interest of other clients not under investigation who have made confidential disclosures to the attorney. Law Offices of Bernard D. Morley, P.C. v. MacFarlane, 647 P.2d 1215 (Colo. 1982) (concurring opinion).

In considering the staleness of a search, in addition to the length of time between the commission of a crime and a search warrant application, the court must also consider the elapsed time between the date the police had probable cause to secure a warrant and the date the warrant was issued. People v. Thrower, 670 P.2d 1251 (Colo. App. 1983); People v. Tafoya, 703 P.2d 663 (Colo. App. 1985).

Expiration of previous warrant's 90-day period for completing a forensic analysis of seized items did not bar law enforcement from initiating another investigation and subsequently obtaining a new warrant two years later to search the same, previously searched items. People v. Strauss, 180 P.3d 1027 (Colo. 2008).

Information contained in affidavit not stale. When only one day had elapsed between the acquisition of probable cause and execution of the warrant, and less than three weeks between the alleged crime and the execution, the information contained in the affidavit was not stale. People v. Salazar, 715 P.2d 1265 (Colo. App. 1985), cert. denied, 744 P.2d 80 (Colo. 1987).

The lack of specific times and dates within the affidavit was not fatal to the probable cause determination and the allegations of three anonymous informants were not stale where the detective spoke with the informants within a two week period prior to the application for the warrant, where there was a fair inference that the informants were referring to contemporary incidents that were ongoing, and where the informants' information was corroborated by the detective. People v. Abeyta, 795 P.2d 1324 (Colo. 1990).

Warrant not stale simply through passage of time where the nature of the criminal activity at issue and the type of records being sought in the warrant support the belief that the items would still be found in the place to be searched at the time the search was conducted. Defendant would have kept the records sought in the normal course of business and there was no reason to believe that the defendant had been aware of the audit's findings or would have otherwise had cause to destroy the records. People v. C rippen, 2 2 3 P.3d 114 ( C olo. 2010); People v. Krueger, 2012 COA 80, 296 P.3d 294.

The link between suspected criminal activity and a specific location to be searched may be established by circumstantial evidence and proper inferences drawn therefrom. People v. Hakel, 870 P.2d 1224 (Colo. 1994).

Informant's personal knowledge of defendant's prior conduct, together with the observations of other officials of defendant's conduct in connection with two cocaine sales, established the nexus between the items to be seized and the place to be searched necessary to support the county court judge's finding of probable cause to issue search warrant for the defendant's residence. People v. Hakel, 870 P.2d 1224 (Colo. 1994).

Defendant's treatment of stolen watch as his own and the likelihood of keeping the watch at his residence with other possessions, coupled with fact that the watch theft had occurred only one day before the issuance of the search warrant, raised a reasonable inference that the stolen watch was still under defendant's control and easily concealed at residence. People v. Green, 70 P.3d 1213 (Colo. 2003).

Evidence suppressed where seizure of items pursuant to search warrant followed an invalid entry. People v. Gifford, 782 P.2d 795 (Colo. 1989).

Suppression order reversed. Even though initial entry into a house was illegal, evidence seized from the house after a valid warrant was obtained was admissible, so long as the warrant was based upon legally obtained evidence. The undisputed facts support the independent source doctrine as an exception to the exclusionary rule. People v. Morley, 4 P.3d 1078 (Colo. 2000).

Where an affidavit includes illegally obtained evidence as well as evidence derived from independent and lawful sources, a valid search warrant may issue if the lawfully obtained evidence, considered by itself, establishes probable cause to issue the warrant. Bartley v. People, 817 P.2d 1029 (Colo. 1991).

If a law enforcement officer includes a false statement in an affidavit intentionally or with reckless disregard for the truth, the statement must be stricken and the remaining allegations must be reviewed to determine whether probable cause exists; however, if the erroneous statement is the result of the good faith mistake or negligence of an officer-affiant, appropriate sanctions need only be imposed at the discretion of the trial court. People v. Flores, 766 P.2d 114 (Colo. 1988); People v. Dunkin, 888 P.2d 305 (Colo. App. 1994).

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).

Trial court improperly suppressed evidence obtained by search warrant after dog sniff of public storage locker on grounds that dog sniff did not constitute search or that dog sniff constituted valid warrantless search based upon reasonable suspicion. People v. Wieser, 796 P.2d 982 (Colo. 1990).

Probable cause to issue a search warrant for a residence was sufficiently established by affidavit that was based primarily on information provided by confidential police informant and only thinly corroborated by independent police investigation. The "totality of circumstances" test for determining whether probable cause existed for issuing warrant was met. People v. Paquin, 811 P.2d 394 (Colo. 1991).

Affidavit that indicated excessive use of electricity for the residence and investigator's discussion of that information with DEA representative indicating a drug lab was probable, when read in a practical, common sense fashion, was sufficient evidence to establish probable cause to search defendant's residence. People v. Dunkin, 888 P.2d 305 (Colo. App. 1994).

Whether the purpose of the intrusion was objectively reasonable in light of the circumstances confronting the officer at the time of the search is dispositive of the validity of a search and not an officer's subjective intent. People v. Daverin, 967 P.2d 629 (Colo. 1998).

Once defendant was within the geographical area covered by the arrest warrant the officer had probable cause to stop his vehicle. People v. Daverin, 967 P.2d 629 (Colo. 1998).

Where there is evidence that everyone in a place described in a search warrant may be involved in a criminal activity, there is probable cause to search the defendant's person. People v. Johnson, 805 P.2d 1156 (Colo. App. 1990).

Order for seizure of premises which may constitute a nuisance under forfeiture statutes does not amount to an order authorizing warrantless entry and search of premises. People v. Taube, 864 P.2d 123 (Colo. 1993).

Court's finding of probable cause to believe that a house constituted a public nuisance was not equivalent to a finding that probable cause existed to enter and search the contents of the house. People v. Taube, 864 P.2d 123 (Colo. 1993).

Probable cause for issuance of search warrant found in People v. Jones, 767 P.2d 236 (Colo. 1989).

Investigator's observations of defendant's hands, perception of distinct drug smell from defendant's clothing, defendant's verification of residential address, defendant's past involvement with drug manufacture, and distinct drug odor emanating from the residence established probable cause for issuance of a warrant to search the residence. People v. Cruse, 58 P.3d 1114 (Colo. App. 2002).

Alleged conduct of bringing the media into plaintiff's home to film and record his arrest exceeded the scope of the arrest warrant and amounted to an unreasonable execution of a warrant, thus violating plaintiff's fourth amendment rights. Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D. Colo. 1999).

Court concluded that reasonable officers would have realized that bringing the media into a private home grossly exceeded the authorization provided by an arrest warrant, even though, as of the March 30, 1993, date law enforcement defendants went to defendant's home to execute the warrant, no reported court decisions expressly forbade law enforcement officials from doing so. Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D. Colo. 1999).

A violation of the knock-and-announce rule does not permit suppression of any illegally obtained evidence found in the search; the only available remedy is a civil action. People v. Butler, 251 P.3d 519 (Colo. App. 2010).

At the time the law enforcement defendants brought the media into plaintiff's home, it was clearly established that the alleged actions exceeded the warrant's scope; undermined the particularity requirement; and, in so doing, violated plaintiff's rights under the fourth amendment. Accordingly, defendants sued in their individual capacities are not entitled to qualified immunity from plaintiff's fourth amendment claim. Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D. Colo. 1999).

District attorney caused the issuance of a search warrant that lacked probable cause and particularity, thereby setting in motion a series of events that she knew or reasonably should have known would cause others to deprive plaintiff of his fourth amendment rights. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010).

Because a reasonable person would not take statements in an editorial column as statements of facts by or about a university professor, no reasonable prosecutor could believe it was probable that publishing such statements constituted a crime warranting search and seizure of plaintiff's property. Mink v. Knox, 613 F.3d 995 (10th Cir. 2010).

It is not outside the scope of consent for officer to use defendant's cell phone passcode to conduct a search of the phone pursuant to a warrant when defendant provided the passcode voluntarily but for a different, limited purpose. Once an individual discloses the digits of his or her passcode to law enforcement, it is unreasonable to expect those digits to be private from the very party to whom he or she disclosed them, regardless of any limitations he or she might be said to have implicitly placed upon the disclosure. People v. Davis, 2019 CO 24, 438 P.3d 266.

C. Legal Search Without Warrant.

Law reviews. For article, "Logical Fallacies and the Supreme C ourt", see 59 U. C olo. L. Rev. 741 (1988). For article, "The Use of Drug-Sniffing Dogs in Criminal Prosecutions", see 19 Colo. Law. 2429 (1990). For aticle, "The Exigent Circumstances Exception to the Warrant Requirement", see 20 Colo. Law. 1167 (1991). For article, "Using Anonymous Informants to Establish Reasonable Suspicion for a Stop", see 32 Colo. Law. 61 (June 2003). For article, "Drunk Drivers and Blood Draws in Colorado", see 43 Colo. Law. 27 (Feb. 2014).

Exceptions to warrant requirement. Among the exceptions to the warrant requirement are "plain view", consent, search incident to arrest, and exigent circumstances such as hot pursuit of a fleeing felon, and seizure of goods in the process of destruction or removal. People v. Alexander, 193 Colo. 27, 561 P.2d 1263 (1977).

Not every search without a warrant is unreasonable or illegal. Larkin v. People, 177 Colo. 156, 493 P.2d 1 (1972); Dickerson v. People, 179 Colo. 146, 499 P.2d 1196 (1972).

The Colorado oil and gas conservation commission's inspection rule meets the administrative search exception to the warrant requirement because it provides "a constitutionally adequate substitute for a warrant". Here, the warrantless inspection made pursuant to the commission's regulatory scheme was reasonable because: (1) oil and gas development is a closely regulated industry; ( 2 ) requiring the commission to obtain a warrant for every inspection performed would frustrate the state's substantial interest in regulating oil and gas development; and (3) the commission's inspection rule was enforced with sufficient certainty and regularity that members of the regulated community had an expectation that their property would be inspected. Maralex Res., Inc. v. Colo. Oil & Gas Conservation Comm'n, 2 018 COA 40, 428 P.3d 657.

Administrative demand for records of a closely regulated industry is not an unconstitutional warrantless search. Since non-consensual towing of motor vehicles is a closely regulated industry, a towing carrier had little expectation of privacy in its documentation of tows, the keeping of which was required by an agency rule under the authority of a state statute. The public utilities commission therefore could assess a civil penalty for the carrier's refusal to produce the records. Eddie's Leaf Spring v. PUC, 218 P.3d 326 (Colo. 2009).

However, warrantless searches and seizures per se unreasonable. The basic constitutional rule regarding warrantless searches and seizures is that they are per se unreasonable, subject to a few specifically established and well-delineated exceptions, such as, where the arresting officers were confronted with exigent circumstances which required immediate action. People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973); People v. Gurule, 196 Colo. 562, 593 P.2d 319 (1978).

A search conducted without a warrant is prima facie invalid, unless it falls within the limits of one of several well-recognized "exceptions" to the warrant requirement. People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

A search without a warrant is presumed to violate the constitutional provisions forbidding unreasonable searches. People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980).

A search conducted without a warrant issued upon probable cause is unconstitutional, subject to only a few well delineated exceptions. People v. Savage, 630 P.2d 1070 (Colo. 1981); People v. Wright, 804 P.2d 866 (Colo. 1991); People v. McMillan, 870 P.2d 493 (Colo. App. 1993); People v. Savedra, 907 P.2d 596 (Colo. 1995).

A warrantless intrusion into a home is presumptively unreasonable. People v. Bustam, 641 P.2d 968 (Colo. 1982); People v. Jansen, 713 P.2d 907 (Colo. 1986).

Warrantless searches are presumed to be unreasonable unless they satisfy an exception to the warrant requirement. People v. Carper, 876 P.2d 582 (Colo. 1994).

Warrantless searches and seizures are per se unreasonable unless they fall within a specific, clearly articulated exception to the warrant requirement such as an arrest based on probable cause or an investigatory stop justified based on reasonable suspicion of criminal activity. People v. Rodriguez, 945 P.2d 1351 (Colo. 1997); People v. Ingram, 984 P.2d 597 (Colo. 1999).

A warrantless search and seizure is unreasonable unless justified by an established exception to the warrant clause of the fourth amendment. People v. Salazar, 964 P.2d 502 (Colo. 1998).

Warrantless searches and seizures are presumptively invalid under the fourth amendment to the United States Constitution and this section, subject only to a few specifically delineated exceptions. Hoffman v. People, 780 P.2d 471 (Colo. 1989); People v. Martinez, 801 P.2d 542 (Colo. 1990); People v. Taube, 843 P.2d 79 (Colo. App. 1992); People v. Taube, 864 P.2d 123 (Colo. 1993).

Warrantless search is invalid unless supported by probable cause and justified under one of the narrowly defined exceptions to the warrant requirement. People v. Higbee, 802 P.2d 1085 (Colo. 1990).

Reasonableness requirement applicable to exceptions. Even within the scope of a given exception to the warrant requirement, the search must still meet the ultimate requirement of "reasonableness". People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

Warrantless search must satisfy reasonableness requirement even though search is within scope of established exception. People v. Boff, 766 P.2d 646 (Colo. 1988); People v. Martin, 806 P.2d 393 (Col. App. 1990); People v. McMillan, 870 P.2d 493 (Colo. App. 1993); People v. Patnode, 126 P.3d 249 (Colo. App. 2005).

Burden of proof in warrantless search and seizure. The burden of proof is upon the people to establish facts and circumstances which bring a warrantless search and seizure within one of the exceptions to the warrant requirements. People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974).

A warrantless search is presumptively illegal and the burden is upon the prosecution to establish a recognized exemption from the warrant requirements of the United States constitution and of the constitution of Colorado. People v. Neyra, 189 Colo. 367, 540 P.2d 1077 (1975); People v. Alexander, 193 Colo. 27, 561 P.2d 1263 (1977); People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977).

The burden of proof is upon the prosecution to establish the existence of facts which render the warrantless entry truly imperative. People v. Hogan, 649 P.2d 326 (Colo. 1982).

The prosecution has the burden of proving that a warrantless search falls within a recognized exception to the warrant requirements. People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980); People v. Jansen, 713 P.2d 907 (Colo. 1986); People v. Taube, 843 P.2d 79 (Colo. App. 1992); Outlaw v. People, 17 P.3d 150 (Colo. 2001).

An arrest without a warrant is presumed to have been unconstitutional, and the prosecution 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).

Where defendant is arrested without a warrant and moves to suppress evidence seized in course of his arrest, burden of proof is upon prosecution to prove constitutional validity of arrest and search. People v. Crow, 789 P.2d 1104 (Colo. 1990).

Burden of proof is on the prosecution to establish the existence of probable cause to arrest without a warrant. Unless the facts and circumstances known to an arresting officer at the time of the arrest amount to probable cause, seizure of a citizen effecting an arrest is unreasonable and violates constitutional rights. People v. Davis, 903 P.2d 1 (Colo. 1995).

The validity of a search must be determined by an objective analysis of the validity of the arrest warrant and the circumstances of its execution and not by an analysis of the officer's motives for executing the warrant. People v. Miller, 94 P.3d 1197 (Colo. App. 2004).

Whether warrantless police eavesdropping violates the fourth amendment depends on whether the defendant had a justified expectation of privacy at the time and place of the communication. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).

Tape recording of defendant's conversation with accomplice made without his knowledge in the back of police car could properly be considered since, irrespective of defendant's subjective belief that his conversation while in the police vehicle was private, such belief was unreasonable and unjustified. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).

Two bases furnishing justification for warrantless arrest in home. The only bases that conceivably could furnish a constitutional justification for a warrantless arrest in a home are exigent circumstances or consent. McCall v. People, 623 P.2d 397 (Colo. 1981).

In applying "emergency doctrine" to warrantless searches each case must be tested on its own particular facts. The test is reasonableness under the circumstances. Condon v. People, 176 Colo. 212, 489 P.2d 1297 (1971).

Obtaining evidence or seizing contraband under emergency doctrine must involve an immediate crisis and the probability that assistance will be helpful. People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977).

Emergency doctrine has been treated as a variant of the exigent circumstances exception to the warrant requirement. People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977).

But officers' generalized speculation that chemicals or waste products could be present, and that those chemicals might be improperly dumped and mixed, which, in turn, might result in an explosion, is insufficient to constitute a showing of the "immediate crisis" required under the emergency exception. People v. Winpigler, 8 P.3d 439 (Colo. 1999).

Lack of credible evidence of an immediate crisis or emergency preclude warrantless entry and search. By the time the officers entered the home there had been significant lag time since the report of the incident indicating there was not an immediate crisis. Moreover, the officers failed to question the witness about whether anyone else was injured or whether there was an emergency that would have provided a basis to believe an emergency existed. People v. Pate, 71 P.3d 1005 (Colo. 2003).

Emergency exception does not apply if officers enter a residence with an investigatory intent and then find a medical emergency. In order for the emergency exception to apply, the officers must enter the home with the intent to provide emergency assistance. Entering the home, without knocking, guns drawn, searching the apartment prior to asking the defendant whether he was injured or required medical attention demonstrates the officers entered the home to investigate. People v. Pate, 71 P.3d 1005 (Colo. 2003).

Factors relevant to the consideration of exigent circumstances include (1) urgency; (2) time needed to get a warrant; (3) reasonable belief contraband would be removed or destroyed; and (4) possibility of danger to police guarding contraband while the warrant would be obtained. People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977).

Factors relevant to a determination of exigency include (1) the degree of urgency and the time required to obtain a warrant, (2) reasonable belief that evidence or contraband would be removed or destroyed, (3) information that those in possession of the evidence or contraband are aware that the police are closing in, and (4) the ease of destroying the evidence or contraband and the awareness that narcotics dealers often try to dispose of narcotics and escape under the circumstances. People v. Bustam, 641 P.2d 968 (Colo. 1982).

Factors applied in People v. Henson, 705 P.2d 996 (Colo. App. 1985).

If an officer's initial observations through the window of an apartment were constitutionally permissible, the prosecution bears the burden of establishing that the warrantless entry was necessary to prevent the immediate destruction of evidence or otherwise was justified under the exigent circumstances doctrine. People v. Donald, 637 P.2d 392 (Colo. 1981); People v. Jansen, 713 P.2d 907 (Colo. 1986).

The threat of immediate destruction or removal of evidence constitutes an exigent circumstance if the prosecution can demonstrate that the police had an articuable basis to justify a reasonable belief that evidence was about to be removed or destroyed. People v. Turner, 660 P.2d 1284 (Colo. 1983); People v. Garcia, 752 P.2d 570 (Colo. 1988).

In determining whether the emergency exception has been satisfied, a court must examine the totality of circumstances, including the delay likely to be occasioned by obtaining a warrant, the character of the investigation, and the potential risk posed to other persons from any unnecessary delay. People v. Higbee, 802 P.2d 1085 (Colo. 1990); People v. Winpigler, 8 P.3d 439 (Colo. 1999).

Destruction of evidence. To justify a warrantless entry and seizure on the basis of destruction of evidence, the perceived danger must be real and immediate: there must be a real or substantial likelihood that the contraband or known evidence on the premises might be removed or destroyed before a warrant could be obtained. People v. Turner, 660 P.2d 1284 (Colo. 1983); People v. Henson, 705 P.2d 996 (Colo. App. 1985).

In order for exigent circumstances to be fully examined when the claim is premised upon destruction of drugs, there must first be a finding that the police knew drugs were located in the home, which could be tantamount to a finding of probable cause. People v. Mendoza-Balderama, 981 P.2d 168 (Colo. 1999).

In order to satisfy this exception, a showing is required that the police have an articulable basis upon which to justify a reasonable belief that evidence is about to be destroyed. But the mere fact that evidence is of a type that can be easily destroyed does not, in and of itself, constitute an exigent circumstance. People v. Winpigler, 8 P.3d 439 (Colo. 1999).

Exigent circumstances exception to warrant requirement. The presence of exigent circumstances, such as the risk of immediate removal or destruction of evidence, permits quick police action and militates against strict adherence to the warrant requirement to gain entry into a residence. People v. Magoon, 645 P.2d 286 (Colo. App. 1982).

Exigent circumstances doctrine 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 v. Gomez, 632 P.2d 586 (Colo. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1439, 71 L. Ed. 2d 655 (1982); People v. Lucero, 677 P.2d 370 (Colo. App. 1983), cert. dismissed, 706 P.2d 1283 (Colo. 1985); People v. Jansen, 713 P.2d 907 (Colo. 1986); People v. Garcia, 752 P.2d 570 (Colo. 1988); People v. Barry, 888 P.2d 327 (Colo. App. 1994).

Exigent circumstances generally have been limited to those bona fide situations which legitimately require swift police action, such as the hot pursuit of a fleeing suspect, the risk of the immediate destruction of evidence, or a colorable claim of an emergency threatening the life or safety of another. People v. Hogan, 649 P.2d 326 (Colo. 1982); People v. Reger, 731 P.2d 752 (Colo. App. 1986); People v. Garcia, 752 P.2d 570 (Colo. 1988).

Exigent circumstances that necessitate immediate and warrantless police action: (1) "Hot pursuit" of a fleeing suspect; ( 2 ) a risk of immediate destruction of evidence; and (3) a colorable claim of an emergency threatening the life or safety of another. People v. Lewis, 975 P. 2 d 160 ( C olo. 1999); People v. Aarness, 150 P.3d 1271 ( C olo. 2006); People v. Nelson, 2012 COA 37M, 296 P.3d 177.

Exigent circumstances exist only when there is a pressing need that cannot brook the delay incident to obtaining a warrant. People v. Lindsey, 805 P.2d 1134 (Colo. App. 1990).

An additional exigent circumstance that allows warrantless police action is the belief that police officers' own lives or the lives of others are at risk. People v. Nelson, 2 01 2 COA 37M, 296 P.3d 177.

Exigent circumstances exception has been limited to those situations involving a bona fide pursuit of a fleeing suspect, the risk of immediate destruction of evidence, or a colorable claim of emergency threatening life or safety of another. People v. Higbee, 802 P.2d 1085 (Colo. 1990).

Officer safety concerns fall within the exigent circumstances exception when (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable. People v. Brunsting, 2013 CO 55, 307 P.3d 1073.

Driving under the influence (DUI) is a sufficiently grave offense to support a warrantless entry into a person's home by police, even though it is a misdemeanor offense in this state, because a person convicted of DUI as a first-time offender may be jailed. People v. Wehmas, 246 P.3d 642 (Colo. 2010).

Dissipation of defendant's blood alcohol content is not a sufficiently exigent circumstance justifying warrantless home entry by police based on the immediate risk of destruction of evidence. People v. Wehmas, 246 P.3d 642 (Colo. 2010).

Exigent circumstances allow immediate, warrantless searches and seizures when it reasonably appears that evidence may be removed or destroyed by a third person before it can be secured by the police. People v. Barndt, 604 P.2d 1173 (Colo. 1980); People v. Barry, 888 P.2d 327 (Colo. App. 1994).

Scope of the emergency exception must be strictly circumscribed by the exigencies which justify its initiation, because the exigent circumstances doctrine runs counter to fourth amendment guarantees. Thus, the state must show that an immediate crisis existed inside the place to be searched and that police assistance probably would be helpful in alleviating the crisis. People v. Higbee, 802 P.2d 1085 (Colo. 1990).

Emergency variant of exigent circumstances exception to warrant requirement satisfied where officer entered apartment with reasonable belief that an immediate crisis existed with respect to the safety of an infant inside. People v. Malczewski, 744 P.2d 62 (Colo. 1987).

Exception supported only by showing of immediate crisis inside private premises and that police assistance probably will help alleviate crises. People v. Martin, 806 P.2d 393 (Colo. App. 1990).

Exigent circumstances found to have continued to exist when police discovered bomb making material. Police were not required to stop lawful search of house for injured persons once they discovered bomb making material in plain sight. People v. Kluhsman, 980 P.2d 529 (Colo. 1999).

Medical emergency variant of exigent circumstances doctrine applied where emergency room personnel discovered cocaine unexpectedly, in the course of treating the defendant for a serious injury, and discovery was entirely incidental to the medical purpose for the treatment. People v. Loggins, 981 P.2d 630 (Colo. App. 1998).

Under exigent circumstances, a police officer may enter private property without a warrant when he reasonably believes the premises have been or are being burglarized. People v. Berow, 688 P.2d 1123 (Colo. 1984).

Police officers' knowledge that apartment tenant was not home but had given directions to arrest trespassers, along with the fact that people were in the apartment but not answering the door, were circumstances sufficient to support a reasonable belief by the officers that the people in the apartment were trespassers who should be arrested. People v. Trusty, 53 P.3d 668 (Colo. App. 2001).

But police officers who respond to a report of a possible burglary in progress, yet find no objective signs of any burglary in progress at the scene, have no probable cause to believe a burglary is in progress and conduct a warrantless entry, search, and seizure. People v. Grazier, 992 P.2d 1149 (Colo. 2000).

Finding broken glass is insufficient to support probable cause that a burglary was in progress when responding to a call that a burglary is in progress. People v. Pate, 71 P.3d 1005 (Colo. 2003).

It is unreasonable for officers to enter a home believing a burglary may be in progress after failing to ask the witness at the scene any questions critical to a burglary investigation. People v. Pate, 71 P.3d 1005 (Colo. 2003).

Police officers reasonably entered defendant's home under exigent circumstances. Daughter's 911 report of a physical altercation involving her mother and defendant established probable cause that a domestic violence crime had occurred or was occurring in the home. When the officers arrived, the home was dark, and no one answered repeated knocks on the front door even though the daughter had reported a physical altercation occurring inside just minutes earlier. It was reasonable, therefore, for the officers to proceed to the back door of the darkened home when their repeated knocks on the front door went unanswered. When they saw the door slightly ajar, it was reasonable for them to enter and announce themselves. People v. Chavez, 240 P.3d 448 (Colo. App. 2010).

Exigent circumstances justifying warrantless arrest existed where police had detailed information from informant, circumstances at the scene matched that information, and person holding suspected contraband was leaving in automobile. People v. Garcia, 752 P.2d 570 (Colo. 1988).

Burden of proof of exigent circumstances. In order to support the warrantless entry and arrest of a defendant in his residence, the prosecution must establish the existence of both probable cause and exigent circumstances. People v. Bustam, 641 P.2d 968 (Colo. 1982); People v. Henson, 705 P.2d 996 (Colo. App. 1985); People v. Higbee, 802 P.2d 1085 (Colo. 1990).

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).

Police had reasonable grounds to believe that person might destroy possible evidence inside the house or harm the officers outside where, during arrest of suspect outside of house, defendant was seen trying to conceal himself by closing curtains to the house. People v. Barry, 888 P.2d 327 (Colo. App. 1994).

Warrantless entry was justified where police had reason to believe that evidence could be destroyed: razor blades and victim's underwear could have been flushed down a toilet or thrown away; bedsheets could have been washed. People v. Crawford, 891 P.2d 255 (Colo. 1995).

Underage drinking party attended by hundreds of suspected teenagers creates an exigent circumstance permitting police to enter a home without a warrant where the police had reason to believe that evidence could be destroyed. People v. Terhorst, 2 015 COA 110, 360 P.3d 2 39.

Warrantless search on the basis of reasonable suspicion. A police officer may briefly stop a suspicious person and make reasonable inquiries to confirm or dispel his suspicions including a pat-down search of the individual to determine whether the person is carrying a weapon, as long as the officer is justified in believing that the person may be armed and presently dangerous. People v. Corpany, 859 P.2d 865 (Colo. 1993).

The purpose of the limited search is not to discover evidence of a crime but to allow an officer to pursue an investigation without fear of violence. People v. Corpany, 859 P.2d 865 (Colo. 1993).

In drug transactions the possibility of violence involving armed drug dealers exists and a protective sweep and search for weapons provides an additional justification for the warrantless search. People v. Barry, 888 P.2d 327 (Colo. App. 1994).

The presence of a burning building clearly created an exigent circumstance that justified a warrantless entry by fire officials to extinguish the blaze and warranted seizure of evidence in plain view. People v. Harper, 902 P.2d 842 (Colo. 1995).

The proper test for determining whether police intrusion is reasonable is an objective one based on the totality of facts and circumstances known to the police at the time. The appropriate inquiry is to balance the intrusion on the individual's fourth amendment interests against the promotion of legitimate governmental interests. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

And a court must evaluate the circumstances as they would have appeared to a prudent and trained police officer at the time of the challenged entry. People v. Higbee, 802 P.2d 1085 (Colo. 1990).

Exigent circumstances found justifying search and seizure. People v. Smith, 709 P.2d 4 (Colo. App. 1985), holding reaffirmed, Mendez v. People, 986 P.2d 275 (Colo. 1999).

Exigent circumstances justified officers' forcible entry where the officers smelled burned marijuana when defendant opened the door. People v. Baker, 813 P.2d 331 (Colo. 1991).

Exigent circumstances justified officers' entry into home to protect the safety of the officers and other occupants where it was reasonable for officers to believe, based on defendant's conduct, that defendant was reaching for a weapon. People v. Aarness, 150 P.3d 1271 (Colo. 2006).

Officers' search justified under exigent circumstances exception to warrant requirement. The officers' had an objectively reasonable basis to believe there was an immediate need to protect their lives or safety by clearing the residence of occupants. The search was reasonable since it was narrowly tailored to neutralize the threat confronting the officers. The officers were called to the house by a neighbor claiming a person in the house had pointed a laser-sight rifle at the neighbor, so the officers were justified in believing someone in the house could ambush them with the laser-sight rifle. People v. Pappan, 2018 CO 71, 425 P.3d 273.

Exigent circumstances requiring warrantless search absent. People v. Guerin, 769 P.2d 1068 (Colo. 1989).

Where extreme cold and not threats of destruction or removal of evidence motivated warrantless entry into house, evidence discovered and seized should have been suppressed. People v. Schoondermark, 717 P.2d 504 (Colo. App. 1985), rev'd on other grounds, 759 P.2d 715 (Colo. 1988).

Courts have uniformly required an objective standard for determining probable cause. People v. Davis, 903 P.2d 1 (Colo. 1995).

Courts use an objective standard for determining reasonable suspicion. In reviewing an officer's conduct in making an investigative stop, a court must apply an objective test. An officer's improper motives will not remove the legal justification for an otherwise valid investigatory stop based on reasonable suspicion. People v. Rodriguez, 945 P.2d 1351 (Colo. 1997).

Inherent right to enter and investigate in emergencies. The reasonable exercise of the broad duties of police officers clearly includes the inherent right to enter and investigate in emergencies without an intent to either search or arrest. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

Emergency and consent are necessary conditions for administrative search without warrant. An administrative search without a warrant is not proper except under certain circumstances and conditions, two of these conditions being (1) that an emergency existed sufficient to justify a warrantless search and (2) that consent was given to search the premises. Condon v. People, 176 Colo. 212, 489 P.2d 1297 (1971).

A search justified under the emergency doctrine is limited by the nature of the emergency; an emergency cannot be used to support a general exploratory search. People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 476 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (1986).

Sufficient emergency. Where both the resuscitation unit of the fire department and the police officers had a legal right to be present in the defendant's apartment in response to a general emergency call, the emergency doctrine fully justified warrantless entry. People v. Amato, 193 Colo. 57, 562 P.2d 422 (1977).

Otherwise lawful search was not vitiated by the entry into apartment without prior identification and announcement of purpose, because exigent circumstances would justify entry without prior identification and announcement, and exigent circumstances are always present in searches for narcotics. The ease with which narcotics can be expended or destroyed is the justification for this practical rule. People v. Arnold, 186 Colo. 372, 527 P.2d 806 (1974).

Where time was of the essence and the police officers had the choice of either acting upon the information which they had obtained or of allowing the narcotics violation to escape detection, the exigent circumstances permitted an arrest without resort to the time-consuming process incident to the obtaining of a warrant. DeLaCruz v. People, 177 Colo. 46, 492 P.2d 627 (1972).

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).

Even though an arrest warrant is invalid, the arrest of a defendant 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).

Investigation of premises without warrant upheld where unpleasant odor from trailer was so unpleasant to cause complaints from neighbors and was adequate to constitute an emergency sufficient to allow park owners to enter trailer and investigate. People v. Rivers, 727 P.2d 394 (Colo. App. 1986).

Facts known to police, including victim's unexplained failure to appear at work and unusual circumstances, were sufficient to support invocation of emergency doctrine to justify warrantless entry into trailer. People v. Reger, 731 P.2d 752 (Colo. App. 1986).

Emergency situation existed where the circumstances suggested a low risk of explosion but a grave danger to any persons in the vicinity if an explosion of dynamite should occur and where an experienced bomb squad officer concluded that the defendant's apartment should be searched. People v. Higbee, 802 P.2d 1085 (Colo. 1990).

For a warrantless entry to be justified as hot pursuit, the police must have been provided with some sort of direction, whether it be the result of a chase or the result of a tip from a witness, which leads them to a particular premises. People v. Lewis, 975 P.2d 160 (Colo. 1999).

Warrantless search of a person's purse or wallet may be conducted in a medical emergency but only if such person is unconscious or semiconscious and the search is conducted to obtain the person's identity or medical information and the person is unable to provide such information themselves. People v. Wright, 804 P.2d 866 (Colo. 1991).

Not sufficient emergency. Detection of an odor which might be that of a decomposing body does not create, in and of itself, an emergency sufficient to justify a warrantless search. Condon v. People, 176 Colo. 212, 489 P.2d 1297 (1971).

No exception for search at homicide scene. There is no special exception which permits the police to conduct a warrantless search at the scene of a possible homicide. People v. Roark, 643 P.2d 756 (Colo. 1982).

Even if police officers' initial entry into defendant's home was not supported by exigent circumstances, defendant's consent to the search of his home was voluntary and attenuated from any illegality; therefore, admission of evidence was not error. People v. Benson, 124 P.3d 851 (Colo. App. 2005).

Parole officer investigating a parole violation who has reasonable grounds to believe that a parole violation has occurred does not need a search warrant to search parolee's house if police officer is not a part of the search. People v. Slusher, 844 P.2d 1222 (Colo. App. 1992).

Special needs exception to the warrant and probable cause requirements applies when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable. Parole officer must authorize the search and would normally be present during the search, and the search must be related to the rehabilitation and supervision of the parolee. United States v. Warren, 566 F.3d 1211 (10th Cir.), cert. denied, 558 U.S. 1018, 130 S. Ct. 569, 175 L. Ed. 2d 393 (2009).

Search of parolee's residence was a special needs parole search because participating police officer acted under the direction of a parole officer. United States v. Warren, 566 F.3d 1211 (10th Cir.), cert. denied, 558 U.S. 1018, 130 S. Ct. 569, 175 L. Ed. 2d 393 (2009).

Although the collection of defendant's DNA sample was not authorized by § 2 3s16- 2 3-103" target="_blank">16-23-103, the seizure did not violate this section. The seizure was not willful and recurrent; the government interest in the DNA sample outweighed defendant's privacy interest since the sample was taken while defendant was in custody and on probation; and the intrusion was minimal. The seizure meets the special needs exception because DNA databases serve a number of special needs beyond securing evidence of wrongdoing. People v. Lancaster, 2015 COA 93, 373 P.3d 655.

Evidence seized within the scope of a reasonable search by a parole officer is admissible in the prosecution of parolee for another crime, even if unrelated to the parole violation. People v. Slusher, 844 P.2d 1222 (Colo. App. 1992).

A warrantless parole search may be constitutional, even in the absence of "reasonable grounds", if the search meets the following requirements: (1) It is conducted pursuant to any applicable statute; (2) it is conducted in furtherance of the purposes of parole, i.e., related to the rehabilitation and supervision of the parolee; and (3) it is not arbitrary, capricious, or harassing. People v. McCullough, 6 P.3d 774 (Colo. 2000).

Warrantless historical search of GPS data gathered from community inmate's ankle monitor by parole officer other than inmate's parole officer lawfully accessed and shared with federal task force. Inmate's limited expectation of privacy under § 17-2-201 (5)(f)(I)(D) that only his parole officer could access the data was outweighed by the state's strong interest in monitoring his behavior and preventing his recidivism. United States v. Mathews, 250 F. Supp. 3d 806 (D. Colo. 2017).

The absence of an authorizing law or condition of probation does not necessarily render unconstitutional a warrantless search of a probationer's residence if based on a reasonable suspicion. The totality of all other relevant circumstances may render such a search reasonable. The defendant's status as a probationer on intensive supervised probation greatly reduced his reasonable expectation of privacy in his residence and, combined with the other circumstances of the situation, justified the search by his probation officer. People v. Samuels, 228 P.3d 229 (Colo. App. 2009).

Warrantless search of a passenger compartment of an automobile must satisfy four conditions: (1) There must be an articulable and specific basis in fact for suspecting that criminal activity has occurred, is taking place, or is about to occur; (2) the purpose of the intrusion must be reasonable; (3) the scope and character of the intrusion must be reasonably related to its purpose; and (4) there must be a reasonable belief based on specific and articulable facts which reasonably cause the officer to believe that the suspect is armed and dangerous and may gain immediate control of weapons. People v. Corpany, 859 P.2d 865 (Colo. 1993).

Automobile may be searched without warrant provided that there is probable cause to believe that the automobile contains articles that officers are entitled to seize. People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971); People v. Chavez, 175 Colo. 25, 485 P.2d 708 (1971); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972).

Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office, but the officers conducting the search must have "reasonable or probable cause" to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search. Cowdin v. People, 176 Colo. 466, 491 P.2d 569 (1971); People v. Padilla, 182 Colo. 101, 511 P.2d 480 (1973); People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974).

Where circumstances require police officers to either seize a vehicle and hold it until a search warrant could be obtained or search it without a warrant, and where there is probable cause to search, a warrantless search is permissible. People v. Henderson, 175 Colo. 400, 487 P.2d 1108 (1971); People v. Neyra, 189 Colo. 367, 540 P.2d 1077 (1975).

The police may conduct a warrantless search of a motor vehicle if: (1) There is probable cause to believe that it contains evidence of a crime; and (2) the circumstances create a practical risk of the vehicle's unavailability if the search is postponed until a warrant is obtained. People v. Meyer, 628 P.2d 103 (Colo. 1981).

Test applied in People v. Thiret, 685 P.2d 193 (Colo. 1984); People v. Edwards, 836 P.2d 468 (Colo. 1992).

The lawfulness of a car stop must finally rest upon a determination that the officer had a reasonable suspicion, based on objective facts, that the driver of the car was involved in criminal activity. People v. Smith, 620 P.2d 232 (Colo. 1980).

Warrantless search of an automobile held valid even though exigent circumstances absent and defendant-owner of vehicle had been released, because police had reasonable belief that automobile was itself the instrumentality of a crime. People v. Zamora, 695 P.2d 292 (Colo. 1985).

Warrantless search of automobile trunk, where trunk was locked and automobile's driver and passengers had been detained, held justified where officer had probable cause to believe trunk contained a weapon used in a burglary. People v. Edwards, 836 P.2d 468 (Colo. 1992).

Reasonable suspicion that car was stolen provided sufficient justification for the momentary inspection of the VIN in the doorjamb and did not exceed the bounds of an investigatory stop. People v. Cattaneo, 2 0 2 0 COA 40, 471 P.3d 1186.

Police had reasonable suspicion to believe criminal activity occurred where the driver of a rental vehicle in Colorado produced two unsigned rental agreements for the vehicle, one of which was for the wrong vehicle, where the rental agreement prohibited driving outside of Arizona or Nevada, and where the driver offered conflicting reasons for being in the state. People v. Litchfield, 918 P.2d 1099 (Colo. 1996).

Automobile exception to warrant requirement applies to police officers' observation of a television set in the vehicle subsequent to the time the vehicle was initially stopped for traffic violation. People v. Naranjo, 686 P.2d 1343 (Colo. 1984).

Based on the totality of the circumstances, the officer had reasonable suspicion to detain truck and conduct a dog sniff. People v. Garcia, 251 P.3d 1152 (Colo. App. 2010).

Observing an air freshener hanging from rearview mirror not an automatic basis for a traffic stop. Officer needs to reasonably believe the air freshener actually obstructs the driver's vision through the windshield. People v. Arias, 159 P.3d 134 (Colo. 2007).

Existence of probable cause justifies warrantless search of car. Where there is probable cause to obtain a warrant to search a car, a search of the car without a warrant is justified. People v. Smith, 620 P.2d 232 (Colo. 1980).

Where probable cause to search a car exists, no exigent circumstances are required. People v. Romero, 767 P.2d 1225 (Colo. 1989).

In such case, the vehicle may be searched immediately without a warrant or seized without a warrant for a later search after a warrant is obtained. People v. Martinez, 32 P.3d 520 (Colo. App. 2001).

A drug checkpoint in which vehicles are stopped without reasonable suspicion that the occupants have engaged in criminal activity constitutes illegal police conduct in violation of the fourth amendment. People v. Roth, 85 P.3d 571 (Colo. App. 2003) (citing Indianapolis v. Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000)).

It was not unconstitutional, however, for the police to have created a ruse checkpoint that caused defendant's passengers to abandon an item of property, the discovery of which provided reasonable suspicion to stop the defendant's vehicle. People v. Roth, 85 P.3d 571 (Colo. App. 2003) (following United States v. Flynn, 309 F.3d 736 (10th Cir. 2002)).

Where the police have legitimately stopped an automobile and have probable cause to search it, they may also search containers that may contain the object of their search. Because the officer was validly searching the car for drug evidence, the officer was justified in searching a wallet found on the back seat. People v. Moore, 900 P.2d 66 (Colo. 1995).

Under the automobile exception police are allowed to conduct a warrantless search of a car if there is probable cause to believe the car contains contraband. People v. Naranjo, 686 P.2d 1343 (Colo. 1984); People v. McMillan, 870 P.2d 493 (Colo. App. 1993).

The automobile exception to warrant requirement is rooted in the inherent mobility of motor vehicles and the diminished expectation of privacy in an object designed exclusively as a means of transportation. People v. Thiret, 685 P.2d 193 (Colo. 1984); People v. McMillan, 870 P.2d 493 (Colo. App. 1993).

But not without cause to believe that car contains contraband. Where the police officer stated unequivocally in the record that he had no cause to believe that the car contained any contraband, under this state of the record the search was exploratory only and cannot be sustained. People v. Singleton, 174 Colo. 138, 482 P.2d 978 (1971).

The need for immediate police action is recognized when an automobile is being utilized to transport contraband. People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974).

No exploratory searches of automobiles are authorized, and in order to be reasonable, the search must be one designed to afford evidence in connection with the particular crime for which the person was arrested. Stewart v. People, 162 Colo. 117, 426 P.2d 545 (1967).

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).

There was a reasonable articulable suspicion that vehicle might contain more evidence of the crime of arrest, possession of a controlled substance. The officers observed defendant retrieve a package from the vehicle consistent with drug dealing behavior, the car was parked late at night in an area known for drug activity, and defendant tried to destroy the drugs in the package upon being placed under arrest. People v. Crum, 2013 CO 66, 312 P.3d 186.

Police had grounds to continue a search of an automobile incident to an arrest after evidence of the offense was discovered. Defendant was arrested for DUI and officers found alcohol in the car. Officers' reasonable suspicion that the car contained evidence of the offense did not evaporate once the officers found some alcohol. People v. Kessler, 2 018 COA 60, 436 P.3d 550.

Search of auto incident to arrest. The search of a vehicle, which was made substantially contemporaneously with the arrest, was permissible as an incident to such arrest. People v. Olson, 175 Colo. 140, 485 P.2d 891 (1971); People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973); People v. Coulson, 192 Colo. 53, 555 P.2d 516 (1976); People v. Patnode, 126 P.3d 249 (Colo. App. 2005).

Arrest of defendant and search of defendant's motorcycle were not so separated by time or intervening events that the search was not incident to the arrest. People v. Malloy, 178 P.3d 1283 (Colo. App. 2008).

Search of automobile held not incident to arrest. Where the defendant was in custody, so there was no danger of his destroying any evidence in his car, and the car was without the area authorized to be searched by the warrant, the search was not incident to the arrest. People v. Singleton, 174 Colo. 138, 482 P.2d 978 (1971); People v. Neyra, 189 Colo. 367, 540 P.2d 1077 (1975).

Where defendant's automobile is immobilized, and defendant is in custody, and there is no danger that evidence will be removed, the essential ingredient -- exigent circumstance that would allow a warrantless search -- is not present. People v. Railey, 178 Colo. 297, 496 P.2d 1047 (1972); People v. Simmons, 973 P.2d 627 (Colo. App. 1998).

Automobile may be searched by police at time and place remote from arrest, provided that the police have valid custody of the automobile at the time, and provided that the arrest is valid, and provided that the search is made for the fruits of the crime, the instruments of the crime, or evidence relating to the crime for which the accused was validly arrested. Stewart v. People, 162 Colo. 117, 426 P.2d 545 (1967).

Not for mere traffic violation. A mere traffic violation does not authorize a suspicion of an unrelated criminal activity so as to justify a warrantless search. People v. Vialpando, 183 Colo. 19, 514 P.2d 622 (1973).

Traffic offenses cannot justify general, exploratory searches of motor vehicles. Cowdin v. People, 176 Colo. 466, 491 P.2d 569 (1971).

Bases for searching unoccupied vehicle. Where a vehicle is unoccupied, the right to search hinges on a reasonable belief that it contains seizable objects -- contraband, the fruits or instrumentalities of a crime, or evidence of a crime. People v. Meyer, 628 P.2d 103 (Colo. 1981).

Right to enter private driveway to investigate. Even if an officer, having a reasonable suspicion that criminal activity is occurring in "plain view", may enter a private driveway to investigate, that right vanishes absent such reasonable suspicion. People v. Apodaca, 38 Colo. App. 395, 561 P.2d 351 (1976), aff'd, 194 Colo. 324, 571 P.2d 1109 (1977).

Car parked under carport behind house. People v. Apodaca, 38 Colo. App. 395, 561 P.2d 351 (1976), aff'd, 194 Colo. 324, 571 P.2d 1109 (1977).

Validity of inventory searches upheld. The validity of inventory searches, when constrained within the limits of "reasonableness", has consistently been upheld. People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976).

Inventory search is justified as incident of lawful incarceration. People v. Overlee, 174 Colo. 202, 483 P.2d 222 (1971); People v. Valdez, 182 Colo. 80, 511 P.2d 472 (1973).

The legitimate purposes for inventory searches provide one measure of the limits of reasonable police intrusion. These purposes include (1) protection of the owner's or occupant's property, (2) protection of the police officers from liability based upon subsequent claims of missing or damaged property, and (3) protection of the police officers and the public from dangerous instrumentalities inside the car. People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976); People v. Eakins, 196 Colo. 517, 587 P.2d 790 (1978).

An inventory search is valid when it follows a lawful arrest, is prior to impoundment of the vehicle, and is conducted in accordance with existing agency policies that are consistently applied. People v. Patnode, 126 P.3d 249 (Colo. App. 2005).

Limiting factor as to reasonableness of inventory search is whether the "caretaking" or protective functions of the search are tainted as pretexts for "concealing an investigatory police motive". People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976); People v. Eakins, 196 Colo. 517, 587 P.2d 790 (1978).

Inventory of property found in impounded vehicle is not unreasonable search, since such a search is supported by the legitimate police concern of protecting property in their custody, or retrieving suspected weapons which may present a danger to the community. People v. Trusty, 183 Colo. 291, 516 P.2d 423 (1973); People v. Grana, 185 Colo. 126, 527 P.2d 543 (1974).

The inventory search of a vehicle is constitutional if the decision to impound the vehicle is made pursuant to the standard criteria in department's regulations. The police followed their impound guidelines in this case so the inventory search of the vehicle was constitutional. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).

Inventory search of vehicle unlawful where prosecution failed to establish that the impoundment of the vehicle was lawful. Prosecution failed to prove that, apart from the defendant driving on a suspended license, any other fact made the impoundment reasonable. People v. Brown, 2 016 COA 150, 417 P.3d 868, aff'd, 2 018 CO 27, 415 P.3d 815.

Compliance with a departmental policy or procedure is insufficient in and of itself to bring the seizure of a vehicle within an exception to the fourth amendment warrant requirement. People v. Quick, 2018 CO 28, 417 P.3d 811.

Seizing a vehicle to prevent the driver from continuing to drive with a suspended license does not fall within the specific community caretaking exception. People v. Quick, 2018 CO 28, 417 P.3d 811.

The state constitution does not prohibit opening and inspecting the contents of a closed container found during a vehicle inventory search if the search is conducted in accordance with a standardized departmental policy and there is no showing that the police acted in bad faith or for the sole purpose of investigation. People v. Parks, 2 015 COA 158, 370 P.3d 346.

Inventory search held unreasonable. The present case clearly fell outside of guidelines as to reasonableness of an inventory search where a knapsack was itself in plain view, but its contents were securely sealed and completely unknown to the officer, the knapsack did not give any indication that its contents were dangerous or particularly valuable and in need of a special inventory, and the legitimate purpose of the inventory search could have been fully accomplished by merely noting the item as a sealed knapsack. People v. Counterman, 192 Colo. 152, 556 P.2d 481 (1976).

Inventory search exception to warrant requirement inapplicable to warrantless entry into defendant's home to conduct inventory after it had been seized pursuant to a temporary restraining order issued in a civil forfeiture action in the absence of probable cause to believe the home was related to the nuisance activity. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

Warrantless entry into defendant's home to conduct an inventory without probable cause was an unreasonable intrusion and violated the defendant's constitutional rights. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

Articulable facts requiring seizure required. This section requires that specific, articulable, and objective facts indicate that society's legitimate interests demand the seizure of a particular individual. People v. Schreyer, 640 P.2d 1147 (Colo. 1982).

A police officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; the test is whether the facts, viewed as a whole, justify the officer's belief that the individual is engaged in wrongdoing. People v. Schreyer, 640 P.2d 1147 (Colo. 1982); People v. Bell, 698 P.2d 269 (Colo. 1985); People v. Guffie, 749 P.2d 976 (Colo. App. 1987); People v. Sutherland, 886 P.2d 681 (Colo. 1994).

In determining whether police had reasonable suspicion to justify investigatory stop, totality of the circumstances must be considered. People v. Carillo-Montes, 796 P.2d 970 (Colo. 1990).

Articulable suspicion of criminal activity needed to support investigatory stop. People v. Trujillo, 773 P.2d 1086 (Colo. 1989).

Seizure of contraband in inventory procedure lawful. Contraband discovered in defendant's car during inventory procedure was lawfully seized. People v. Roddy, 188 Colo. 55, 532 P.2d 958 (1975).

Right to "stop and frisk" is not an open invitation to conduct an unlimited search incident to arrest or a means to effect a search to provide grounds for an arrest. Rather, it is a right to conduct a limited search for weapons. People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971).

It is well established that an officer may conduct a limited search for weapons (a so-called "pat-down" or "stop and frisk") for his own safety when he is justified in believing that he is dealing with a potentially armed and dangerous individual. Finley v. People, 176 Colo. 1, 488 P.2d 883 (1971); People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

In light of the fact that police officers must always make arrests under a shadow of uncertainty as to the risk which they are taking, police officers stopping a speeding car are justified in making a "pat-down" search for weapons and to forestall assault or escape. Cowdin v. People, 176 Colo. 466, 491 P.2d 569 (1971).

The rule allowing contemporaneous searches incident to lawful arrests is justified by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime. People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971).

When a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971).

But free license has not been granted to law enforcement officers to stop an individual to obtain identification or address. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971).

Temporary detention on less than probable cause authorized. A police officer may subject a person to a temporary detention, short of the traditional arrest, on less than the probable cause standard. People v. Tate, 657 P.2d 955 (Colo. 1983).

The limited intrusion of an investigatory stop may be carried out with less than probable cause without violating the fourth amendment of the U.S. Constitution and this section. People v. Lagrutta, 775 P.2d 576 (Colo. 1989); People v. Rahming, 795 P.2d 1338 (Colo. 1990); People v. Lingo, 806 P.2d 949 (Colo. 1991); People v. Sutherland, 886 P.2d 681 (Colo. 1994).

A police officer may have sufficient information for a temporary detention based on a reasonable suspicion that an individual may have committed a crime but such detention must be limited to determining the individual's identity or obtaining an explanation of his behavior. People v. Davis, 903 P.2d 1 (Colo. 1995).

Subjective intentions of officer are irrelevant to a determination that officer has reasonable suspicion to conduct an investigatory stop. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).

Investigatory stop of defendant valid and seizure of defendant not illegal. Record supports the reasonable conclusion that defendant may have been committing a traffic offense when officer undertook the investigatory stop. People v. McDaniel, 160 P.3d 247 (Colo. 2007).

Investigatory stop was legal. Police had reasonable suspicion to believe that a crime was occurring where defendant stood on private property in a high-crime area late at night where no businesses were open and no other people were nearby, and officers heard a loud crash shortly thereafter. People v. Funez-Paiagua, 2012 CO 37, 276 P.3d 576.

An investigatory stop must be brief in duration, limited in scope, and narrow in purpose. People v. Tottenhoff, 691 P.2d 340 (Colo. 1984); People v. Rodriguez, 945 P.2d 1351 (Colo. 1997); Outlaw v. People, 17 P.3d 150 (Colo. 2001).

But a detective's request for defendant's identification information was reasonably related in scope and character to the investigative detention. People v. McCoy, 870 P.2d 1231 (Colo. 1994); People v. McKay, 10 P.3d 704 (Colo. App. 2000).

Law enforcement interests can support a seizure based on less than probable cause in the case of a minimally intrusive detention. People v. Ortega, 34 P.3d 986 (Colo. 2001); People v. Tallent, 174 P.3d 310 (Colo. 2008).

Performing drug interdiction stops serves an important public interest; therefore, if law enforcement can conduct a search and seizure in a reasonably short period of time without delaying the common carrier schedule, the conduct is an investigative detention, requiring only reasonable suspicion. People v. Ortega, 34 P.3d 986 (Colo. 2001).

Investigatory stop of suspect limited. Any temporary police detention made for the purpose of questioning a suspect who might otherwise escape is limited to determining an individual's identity or obtaining an explanation of his behavior. People v. Schreyer, 640 P.2d 1147 (Colo. 1982); People v. Villiard, 679 P.2d 593 (Colo. 1984); People v. Lingo, 806 P.2d 949 (Colo. 1991); People v. Rodriguez, 945 P.2d 1351 (Colo. 1997).

Else it becomes arrest. Although an investigatory stop itself does not constitute an arrest, whenever detention and questioning by a police officer are more than brief and cursory, there is an arrest which must be supported by probable cause. People v. Schreyer, 640 P.2d 1147 (Colo. 1982); People v. Roybal, 655 P.2d 410 (Colo. 1982); People v. Hazelhurst, 662 P.2d 1081 (Colo. 1983); People v. Villiard, 679 P.2d 593 (Colo. 1984); People v. Trujillo, 710 P.2d 1169 (Colo. App. 1985).

Use of force and physical restraint for officer's safety is not per se an arrest. If an officer's use of force and physical restraint for safety is reasonable, it does not transform the investigatory stop into an arrest. People v. Smith, 13 P.3d 300 (Colo. 2000); People v. Smith., 312 P.3d 1173 (Colo. App. 2010), rev'd on other grounds, 2014 CO 10, 318 P.3d 472.

But the continued use of handcuffs transforms an otherwise proper investigatory detention into an arrest when initially reasonable concerns regarding officer safety have been dispelled and the individual being detained has been identified. People v. Oliver, 2 0 2 0 COA 150, 480 P.3d 737.

Where a police officer conducts an investigatory stop, an accompanying search upon less than probable cause is permissible only for the purpose of discovering weapons, and the officer must entertain such purpose at the time the search is conducted. People v. Cagle, 688 P.2d 718 (Colo. 1984), appeal dismissed for want of a substantial federal question, 486 U.S. 1028, 108 S. Ct. 2009, 100 L. Ed. 2d 597 (1988); People v. Lingo, 806 P.2d 949 (Colo. 1991).

During a valid investigatory stop, an officer may search those areas of a vehicle's passenger compartment where a weapon may be placed or hidden if, prior to the search, the officer possesses a reasonable belief, based on specific and articulable facts, that the suspect is dangerous and may gain immediate control of a weapon. The fact that suspect ducked down in the vehicle out of sight of the officer for a period of time justified the officer's belief that the suspect may have been reaching for a weapon. People v. McDaniel, 160 P.3d 247 (Colo. 2007).

Unlike a search incident to a lawful arrest, the only justification for a search during an investigatory stop is to neutralize the potential risk of physical harm confronting the investigating officer and others during the stop. People v. Tate, 657 P.2d 955 (Colo. 1983); People v. Melgosa, 753 P.2d 221 (Colo. 1988); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Lingo, 806 P.2d 949 (Colo. 1991).

An investigatory stop must be supported by an articulable suspicion of criminal activity, and an arrest by probable cause to believe criminal activity has occurred or is occurring. People v. Morales, 935 P.2d 936 (Colo. 1997); People v. Smith, 13 P.3d 300 (Colo. 2000).

An investigatory stop occurs when an officer requests and retains an automobile passenger's identification and instructs the passenger to remain in the car while the officer runs the identification for warrants. A mere traffic stop and request for identification from a passenger does not constitute a seizure, however retention of the identification and instructing the passenger to remain in the car creates a seizure. Under the totality of the circumstances, no reasonable person could expect to be free to leave or terminate the encounter once his or her identification is retained and he or she is instructed to remain in the car. Since the officer had no reasonable suspicion to conduct the check, all evidence obtained as a result of the arrest is inadmissible. People v. Jackson, 39 P.3d 1174 (Colo. 2002), overruled in part by Brendlin v. California, 551 U.S. 249, 127 S. Ct. 2400, 168 L. Ed. 2d 132 (2007), as recognized in Tate v. People, 2012 CO 75, 290 P.3d 1268.

No second, distinct seizure of a passenger lawfully seized during a traffic stop when the passenger was asked to step away from the vehicle and was separated from the other occupants of the vehicle because the officer's direction to "step over here" was incidental to the ongoing lawful seizure. People v. Harmon, 2 019 COA 156, 461 P.3d 618.

A consensual interview does not need to be justified by either probable cause or reasonable suspicion of criminal activity. People v. Morales, 935 P.2d 936 (Colo. 1997).

A consensual encounter does not mature into a stop merely as a result of passage of time. People v. Morales, 935 P.2d 936 (Colo. 1997).

Merely asking questions about criminal conduct does not transform a consensual interview into an investigatory stop. However, such questions coupled with a tone of voice indicating that compliance with a request for information might be compelled may indicate a seizure. People v. Morales, 935 P.2d 936 (Colo. 1997).

The test for determining whether an encounter is consensual is whether a reasonable person under the circumstances would believe he or she was free to leave or to disregard the official's request for information. People v. Padgett, 932 P.2d 810 (Colo. 1997); People v. Morales, 935 P.2d 936 (Colo. 1997).

Consensual interview not investigatory stop. Under normal circumstances, a consensual interview between the police and a suspect or witness is not considered an investigatory stop. People v. Gouker, 665 P.2d 113 (Colo. 1983).

Consensual interviews are encounters in which no restraint of the liberty of the citizen is implicated and the voluntary cooperation of the citizen is elicited through noncoercive questioning. People v. Padgett, 932 P.2d 810 (Colo. 1997).

A consensual encounter is negated if the police conduct would have communicated to a reasonable person that he or she was not at liberty to ignore the police presence and go about his or her business. People v. Padgett, 932 P.2d 810 (Colo. 1997).

A seizure occurred at the moment police summoned defendant to the patrol car. A seizure has occurred where officers required a defendant to alter his direction of travel, walk back to where the officers were, and remain while police investigated him. Outlaw v. People, 17 P.3d 150 (Colo. 2001).

Remand proper to determine whether trial court applied proper test in determining whether interview at which defendant made inculpatory statements to drug enforcement agency was a consensual interview. People v. Beckstrom, 843 P.2d 34 (Colo. App. 1992).

Evidence dropped during consensual police-citizen encounter not fruit of the poisonous tree. Because police-citizen encounter was consensual and no seizure had occurred, evidence defendant dropped was admissible. People v. Taylor, 2018 CO 35, 415 P.3d 821.

Precautionary measures do not transform stop into arrest. Although the precautionary measures taken in a particular case may lead a detainee to believe that he is not free to leave, this does not necessarily transform a stop into an arrest. People v. Weeams, 665 P.2d 619 (Colo. 1983).

And handcuffs may be justified in investigatory stop. Under the narrow circumstances surrounding an apprehension of criminal suspects reasonably believed to be armed, the use of handcuffs in an investigatory stop may be a reasonably justified intrusion. People v. Weeams, 665 P.2d 619 (Colo. 1983).

And a drawn gun may be justified in an investigatory stop. Under specific circumstances of preparing to confront a criminal suspect, drawing a weapon was a justifiable measure of precaution for ensuring protection. People v. Archuleta, 980 P.2d 509 (Colo. 1999).

In order to make a valid investigatory stop: (1) The 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. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971); People v. McCombs, 629 P.2d 1088 (Colo. App. 1981); People v. Martinez, 801 P.2d 542 (Colo. 1990); People v. Rodriguez, 924 P.2d 1100 (Colo. App. 1996), aff'd, 945 P.2d 1351 (Colo. 1997); People v. Padgett, 932 P.2d 810 (Colo. 1997); People v. Dowhan, 951 P.2d 905 (Colo. 1998); People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

Test applied in People v. Trujillo, 710 P.2d 1169 (Colo. App. 1985); People v. Cooper, 731 P.2d 781 (Colo. App. 1986); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Garcia, 789 P.2d 190 (Colo. 1990); People v. Martinez, 801 P.2d 542 (Colo. 1990); People v. Rodriguez, 924 P.2d 1100 (Colo. App. 1996), aff'd, 945 P.2d 1351 (Colo. 1997); People v. Archuleta, 980 P.2d 509 (Colo. 1999); People v. Barnard, 12 P.3d 290 (Colo. App. 2000); Outlaw v. People, 17 P.3d 150 (Colo. 2001).

In determining whether the temporary detention was reasonable, the court must determine whether the defendant was detained only for the amount of time necessary to complete the purpose of the stop. People v. Cobb, 690 P.2d 848 (Colo. 1984).

When investigating officer suspected that vehicle's occupants might be involved in a burglary or vandalism, the continued detention of defendant while officer examined exterior of nearby building did not exceed the scope of the investigatory stop. People v. Pacheco, 182 P.3d 1180 (Colo. 2008).

Requirement that officer making investigatory stop have reasonable suspicion that individual has committed, or is about to commit, a crime is met if there are specific and articulable facts known to the officer, coupled with rational inferences from those facts, which create reasonable suspicion of criminal activity sufficient to justify the intrusion; only facts known prior to the intrusion may be used to evaluate reasonableness of officer's suspicion. People v. Cooper, 731 P.2d 781 (Colo. App. 1986); People v. Wilson, 784 P.2d 325 (Colo. 1989).

Facts uncovered after a chase begins do not enter into the constitutional equation for reasonable suspicion. People v. Rahming, 795 P.2d 1338 (Colo. 1990).

The basis for the reasonable suspicion that an individual has committed or is about to commit a crime is not restricted to the officer's personal observations; an informant's tip may also serve as such basis. People v. Lagrutta, 775 P.2d 576 (Colo. 1989).

Police officers who had warrant to arrest parole violator and had been waiting for search warrant prior to entering violator's residence had reasonable cause to make investigatory stop of man resembling violator who left residence. People v. Cooper, 731 P.2d 781 (Colo. App. 1986).

State trooper's investigatory stop of driver was justified where trooper believed that the driver was intoxicated upon observing that the driver was weaving. People v. Rodriguez, 924 P.2d 1100 (Colo. App. 1996), aff'd, 945 P.2d 1351 (Colo. 1997).

Trooper could ask driver for identification after ascertaining that driver was not intoxicated and deciding not to ticket driver for weaving because trooper still had reasonable suspicion that driver had committed traffic offense of weaving. People v. Rodriguez, 945 P.2d 1351 (Colo. 1997).

Officer had reasonable suspicion that a violation of § 42-4-1107 occurred, thus justifying officer to stop vehicle, where vehicle moved three to four feet into another lane of traffic, essentially straddling the lane divider for several seconds. United States v. Valenzuela, 494 F.3d 886 (10th Cir.), cert. denied, 552 U.S. 1032, 128 S. Ct. 636, 169 L. Ed. 2d 411 (2007).

Traffic stops outside municipal boundaries did not violate clearly established fourth amendment law at the time of the violations. Tenth circuit law did not clearly establish a fourth amendment violation at the time of the conduct. Even assuming a constitutional violation, a reasonable police officer would not have known in 2006 that extra-jurisdictional, but within the same state, traffic stops constituted a violation of clearly established fourth amendment law, when no dispute existed that the officer observed traffic violations before effectuating the stops. Swanson v. Town of Mtn. View, 577 F.3d 1196 (10th Cir. 2009).

Officer's act of merely approaching a person suspected of criminal activity does not constitute a stop; however, when defendant, in an area known for criminal activity where officers had previously taken weapons from others in the area, put his hand behind his back as officer approached and hesitated when asked to show his hand, officer had reason to be concerned about whether defendant was reaching for a weapon, and the totality of the facts and circumstances justified an investigatory stop. People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

Authority to continue with investigatory stop is not changed by the officer's subjective intent not to issue a traffic citation. Officer's request to search vehicle even after he informed the defendant that he had decided not to issue a ticket for weaving could still be considered reasonable. People v. Ramos, 13 P.3d 295 (Colo. 2000).

Investigatory stop or limited search authorized. Three conditions must exist before a person may be subjected to some form of intermediate intrusion, such as an investigatory stop or a limited search of his person: (1) There must be an articulable and specific basis in fact for suspecting that criminal activity has or is about to take place; (2) the purpose of the intrusion must be reasonable; and (3) the scope and character of the intrusion must be reasonably related to its purpose. People v. Tate, 657 P.2d 955 (Colo. 1983); People v. Thomas, 660 P.2d 1272 (Colo. 1983); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Wilson, 784 P.2d 325 (Colo. 1989); People v. Sosbe, 789 P.2d 1113 (Colo. 1990); People v. Carillo-Montes, 796 P.2d 970 (Colo. 1990); People v. Weston, 869 P.2d 1293 (Colo. 1994); People v. Sutherland, 886 P.2d 681 (Colo. 1994); People v. Litchfield, 918 P.2d 1099 (Colo. 1996); People v. Dowhan, 951 P.2d 905 (Colo. 1998); People v. Archuleta, 980 P.2d 509 (Colo. 1999); People v. Garcia, 11 P.3d 449 (Colo. 2000); People v. Hardrick, 60 P.3d 264 (Colo. 2002).

Condition that purpose of the intrusion be reasonable is met if the scope and character of the intrusion do not exceed its legitimate purpose; an officer's subjective intent to effect an intrusion more extensive than legally justified is not a factor in determining the reasonabless of an intrusion. People v. Lagrutta, 775 P.2d 576 (Colo. 1989).

Whether conditions existed is applied in People v. Villiard, 679 P.2d 593 (Colo. 1984); People v. White, 680 P.2d 1318 (Colo. App. 1984); People v. Cagle, 688 P.2d 718 (Colo. 1984); People v. Perez, 690 P.2d 853 (Colo. 1984); People v. Johnson, 691 P.2d 751 (Colo. App. 1984); People v. Savage, 698 P.2d 1330 (Colo. 1985); People v. Koolbeck, 703 P.2d 673 (Colo. App. 1985); People v. Wilson, 709 P.2d 29 (Colo. App. 1985); People v. Trujillo, 710 P.2d 1169 (Colo. App. 1985); People v. Cagle, 751 P.2d 614 (Colo. 1988), appeal dismissed for want of a substantial federal question, 486 U.S. 1028, 108 S. Ct. 2009, 100 L. Ed. 2d 597 (1988); People v. Melgosa, 753 P.2d 221 (Colo. 1988); People v. Hughes, 767 P.2d 1201 (Colo. 1989); People v. Sosbe, 789 P.2d 1113 (Colo. 1990); People v. Rahming, 795 P.2d 1338 (Colo. 1990); People v. Smith, 926 P.2d 186 (Colo. App. 1996); People v. Rodriguez, 945 P.2d 1351 (Colo. 1997); People v. Ingram, 984 P.2d 597 (Colo. 1999).

Facts about criminal activity known to police officers at the time of a stop, even though suspect's conduct is wholly lawful, might justify the suspicion that criminal activity is afoot. People v. Morales, 935 P.2d 936 (Colo. 1997).

Defendant's acts of placing his hand behind his back as officer approached and then hesitating when asked to show his hand supported a determination of reasonable suspicion. People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

Scope of questioning did not measurably extend investigatory stop. Officer had reasonable suspicion to stop defendant and investigate defendant for domestic violence. Additionally, the officer had legitimate safety concerns justifying the search for weapons, rendering the initial pat-down reasonable. Finally, the character and scope of the intrusion were reasonably related to the stop's purpose. As part of the investigatory stop and pat-down, the officer asked about pill bottle in defendant's pocket and defendant produced the bottle without the officer asking him to do so. While the question was off-topic, the question was minimally intrusive and did not measurably extend the investigatory stop. People v. Ashford, 2020 CO 16, 458 P.3d 124.

Four factors used to determine when an investigatory stop becomes an arrest that must be supported by probable cause are: (1) The length of the detention; (2) whether the police diligently investigated their suspicions of criminal activity during the detention; (3) whether the suspect was forced to move to another location; and (4) whether the police unreasonably failed to use the least intrusive means available to resolve their suspicions. People v. Rodriguez, 945 P.2d 1351 (Colo. 1997).

Test applied in People v. Rodriguez, 945 P.2d 1351 (Colo. 1997).

But a lengthy detention did not become an arrest when defendant provided a false name that could not be verified. People v. Barnard, 12 P.3d 290 (Colo. App. 2000).

An officer who conducts an investigative detention must do so on the basis of more than an inchoate and unparticularized suspicion or hunch. People v. Rahming, 795 P.2d 1338 (Colo. 1990); People v. Padgett, 932 P.2d 810 (Colo. 1997).

Investigatory stop of vehicle. Law enforcement officers may make an investigatory stop when objective facts and circumstantial evidence suggest that a particular vehicle was or might be involved in criminal activity. People v. Schreyer, 640 P.2d 1147 (Colo. 1982); People v. Guffie, 749 P.2d 976 (Colo. App. 1987).

Observations of peace officer and the information known to him immediately prior to investigatory stop of defendant provided officer with reasonable suspicion that defendant had engaged, or was about to engage, in a criminal act where officer had received an anonymous tip that there was suspected drug activity at a site known for prior drug transactions and where such tip was corroborated by the officer's own observations. People v. Canton, 951 P.2d 907 (Colo. 1998).

Requests for information during an investigatory stop of vehicle. A police officer may request a driver's license, vehicle registration, and proof of insurance during a valid traffic stop. People v. Rodriguez, 945 P.2d 1351 (Colo. 1997).

Officer's action did not amount to investigatory stop where officer merely approached parked vehicle in which defendant was sitting and identified himself as a police officer. People v. Dickinson, 928 P.2d 1309 (Colo. 1996).

Retention of driver's license for a brief period without issuance of traffic citation. The authority of a police officer to issue a traffic citation to the driver of a vehicle who is impeding traffic does not cause all other actions by the officer to be constitutional violations. The court of appeals incorrectly assumed that the constitution requires that once a police officer stops an individual, the officer must either issue a traffic citation and allow the individual to proceed on his way or not take any action. Moody v. Ungerer, 885 P.2d 200 (Colo. 1994).

Although some cases have held that retention of a driver's license is a factor in determining whether a seizure has occurred, no court has held that when an officer retains a license the seizure is per se unreasonable and the traffic stop becomes a violation of the driver's constitutional rights. Moody v. Ungerer, 885 P.2d 200 (Colo. 1994).

Reasonable suspicion is based on the totality of circumstances known to the government at the time of detention. In the case of a drug interdiction, new, expensive, unusually heavy luggage with an unusually large lock, a chemical odor, and no tags identifying the owner destined to a drug source city, constitutes reasonable suspicion. People v. Ortega, 34 P.3d 986 (Colo. 2001).

During the course of an investigatory stop, a police officer may search those areas of the passenger compartment of an automobile in which a weapon may be placed or hidden. However, the officer must possess a reasonable belief based upon specific and articulable facts that the suspect is dangerous and may gain immediate control of weapons. People v. Weston, 869 P.2d 1293 (Colo. 1994); People v. Litchfield, 918 P.2d 1099 (Colo. 1996).

During the course of an investigatory stop, a protective search for weapons is permitted if the officer has a reasonable basis to suspect that the person might be armed and dangerous, and defendant's action of putting his hand behind his back as officers approached, the officers' awareness that the area was known for criminal activity, and the officers' previous experience of taking weapons from others in the area made it reasonable for the officers to be concerned about whether defendant was reaching for a weapon, thus there was no error in the officer's act of frisking defendant. People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

Defendant's passenger's furtive gesture of bending over to reach or hide something and defendant's giving false name warranted a reasonable belief by police officer who made investigatory stop that defendant was dangerous and could gain immediate control of weapon as required to make weapons search of automobile passenger compartment. People v. Cagle, 751 P.2d 614 (Colo.), appeal dismissed for want of a substantial federal question, 486 U.S. 628, 108 S. Ct. 2009, 100 L. Ed. 2d 597 (1988).

Pat-down search conducted almost fifteen minutes after initial stop of car was reasonable when officer became concerned for his safety. Defendant's retrieval of coat from backseat of car and placement in his lap after police intervention justified search by police. People v. Jackson, 948 P.2d 506 (Colo. 1997).

Action taken to avoid police contact sufficient. Action which does not amount to illegal conduct, but is taken simply to avoid police contact, is sufficient to support an investigatory stop. People v. Thomas, 660 P.2d 1272 (Colo. 1983).

The defendant's physical action in attempting to forcibly open the trailer door and his obvious effort to leave the scene constitute a sufficiently particularized basis in fact for stopping the defendant in order to briefly investigate the circumstances of his conduct. People v. Wells, 676 P.2d 698 (Colo. 1984).

An individual's attempt to avoid coming in contact with a police officer does not, without more, justify an investigative detention of the individual. People v. Rahming, 795 P.2d 1338 (Colo. 1990); People v. Padgett, 932 P.2d 810 (Colo. 1997).

Court properly determined the officer made a proper investigatory stop. The officer was entitled to make an investigatory stop when he observed the defendant at 3:30 a.m. in a dark area not usually frequented by the public and where he had never observed anyone before. In addition, there had been burglaries in the area in the last two weeks and the defendant moved away toward a car when the officer approached. These facts in their totality led to a minimum level of subjective suspicion that the defendant, was, had, or would commit a crime. People v. Rushdoony, 97 P.3d 338 (Colo. App. 2004).

Suspect's attempt to flee from an officer, standing alone, fails to amount to a reasonable suspicion of criminal activity to justify an investigatory stop of the suspect. People v. Archuleta, 980 P.2d 509 (Colo. 1999).

An investigatory stop cannot be justified solely on the reputation of past criminal activity in a locality. A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone who may subsequently be in that locality. People v. Padgett, 932 P.2d 810 (Colo. 1997); People v. Archuleta, 980 P.2d 509 (Colo. 1999); Outlaw v. People, 17 P.3d 150 (Colo. 2001).

In order to characterize a forceful encounter as an investigatory stop, there must be the existence of specific facts or circumstances to show that the degree of force used was a reasonable precaution for the safety and protection of the investigating officers. People v. King, 16 P.3d 807 (Colo. 2001).

Passenger's furtive gesture of bending down in his automobile seat after police officer signaled the automobile to stop warranted a reasonable belief that passenger had a weapon in the automobile. Therefore, the scope and character of the automobile search was within the proper scope of stop and search, although further finding was needed as to whether purpose of search was reasonable. People v. Cagle, 688 P.2d 718 (Colo. 1984).

Authority to make search without probable cause is limited in the following manner: There must be (a) some reason for the officer to confront the citizen in the first place, (b) something in the circumstances, including the citizen's reaction to the confrontation, must give officer reason to suspect that the citizen may be armed and, thus, dangerous to the officer or others, and (c) the search must be limited to a frisk directed at discovery and appropriation of weapons and not at evidence in general. People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971); People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974); People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976); People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977); People v. Sherman, 197 Colo. 442, 593 P.2d 971 (1979).

There is an area of proper police procedure in which an officer having less than probable cause to arrest nevertheless may detain an individual temporarily for certain purposes and not violate the unreasonable search and seizure limitation. This area the Colorado supreme court has called the "stone area". Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971); People v. Marquez, 183 Colo. 231, 516 P.2d 1134 (1973); People v. Schreyer, 640 P.2d 1147 (Colo. 1982).

In the adoption of Crim. P. 41.1, the supreme court recognized that there can be a seizure for some purposes when there is less than probable cause involved. By that rule a judge may enter an order allowing the fingerprints of an individual to be obtained when it is shown by an affidavit (1) that a known criminal offense has been committed, (2) that there is reason to suspect that the individual is connected with the perpetration of a crime, and (3) that the individual's fingerprints are not in the files of the applying agency. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971).

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 an investigatory stop and scope of resulting search exceeded a pat down for weapons. People v. Wilson, 784 P.2d 325 (Colo. 1989).

There was nothing unusual in an individual slipping on an icy sidewalk and the facts did not rise to the level of an articulable and specific basis in fact that the two men were committing, had committed, or were about to commit a crime. Under the totality of the circumstances, the facts known to the officers at the time of the intrusion did not satisfy the threshold constitutional test for reasonable suspicion. People v. Padgett, 932 P.2d 810 (Colo. 1997).

Reasonableness of protective search. 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).

Where the danger to the police officers was still present at the time the search was initiated, the immediate search for weapons was reasonable. People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974).

The permissible scope of the weapons search is limited by its purpose. People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

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).

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, he may conduct a limited protective search for concealed weapons. People v. Vincent, 628 P.2d 107 (Colo. 1981).

Where police officers have reasonable suspicion to stop and temporarily detain the driver of an automobile and are cautioned beforehand that he might be armed, a contemporaneous, cursory examination for a weapon in the area of the driver's seat is reasonably related in scope and character to ensuring the officers' safety during the period of detention. People v. Lewis, 659 P.2d 676 (Colo. 1983).

Where passenger placed an indeterminate object under automobile seat in response to police encounter and where suspects were observed near the site of possible criminal activity soon after such activity, protective search of automobile was justified. People v. Melgosa, 753 P.2d 221 (Colo. 1988).

An officer's examination of the map pocket located in the driver's side door of an automobile and the contents of the baggies contained therein did not exceed the constitutionally permissible limits of a protective search for a weapon. People v. Weston, 869 P.2d 1293 (Colo. 1994).

Protective search for weapons satisfies constitutional requirements as long as the intrusion is reasonably related to neutralizing the risk of physical harm confronting the officer during the investigatory stop. People v. Ratcliff, 778 P.2d 1371 (Colo. 1989).

Where police officer and detective testified that they did not consider individuals at residence to be a threat and that the situation was not one in which they were in danger or in which unknown individuals were throughout the residence, officers' actions were inconsistent with a protective search. People v. Walter, 890 P.2d 240 (Colo. App. 1994).

Protective search of defendant's car was not reasonable since it was not necessary to protect his own safety since he was in handcuffs and no longer had access to the car or its contents nor was it established that the search was necessary to protect the safety of the police officers. People v. Simmons, 973 P.2d 627 (Colo. App. 1998).

Root function of "articulable suspicion" requirement as a condition to the reasonableness of a frisk or pat-down has not been to hamstring officers facing dangerous street situations, but rather, it has been to establish a basis for post hoc judicial review to insure that the weapons frisk is not used as a substitute for a search incident to arrest or as a means of evading the normal warrant and probable cause requirements of the state and federal constitutions. People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

When officers may go beyond exterior frisk. Only when some reasonable basis for believing that a weapon may be contained in the clothing, or that an exterior frisk will not be availing in detecting some specific weapon, is the further intrusion of reaching into the pockets or other areas of clothing permitted. People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

It is reasonable for a police officer conducting a legal search of premises for narcotics to "frisk" or "pat down" the occupants of the house as well as those coming into the house for weapons in order to protect himself and his fellow officers from the use of such weapons. In connection with such a search, the officer could ask the defendant to remove his hand from his pocket, and if, when the defendant took his hand from his pocket, he held syringes in his hand, the seizure would be justified under the "plain view" doctrine and the subsequent search of the defendant would be valid as incident to his arrest. People v. Noreen, 181 Colo. 327, 509 P.2d 313 (1973).

But where search beyond scope of permissibility. If a police officer reached into the defendant's back pocket to find out what was there, and discovered syringes and drug, the search and seizure would be invalid as beyond the scope of a permissible frisk, for such a search is limited in scope to a pat down or frisk of the clothing for assaultive weapons and not for evidence in general. People v. Noreen, 181 Colo. 327, 509 P.2d 313 (1973).

During protective frisk, closed container recovered from suspect could not be opened by officer unless specific and articulable facts support a reasonable suspicion that the closed container posed a danger to officer and to others. People v. Ratcliff, 778 P.2d 1371 (Colo. 1989).

Trooper's pat-down search of defendant, conducted under trooper's own "officer safety practice" was a constitutionally reasonable search. People v. Berdahl, 2019 CO 29, 440 P.3d 437; Gow v. People, 2019 CO 30, 439 P.3d 1219.

A protective search of an automobile is justified only by the need to protect those present and is therefore limited to those areas in which a weapon may be placed or hidden. People v. Weston, 869 P.2d 1293 (Colo. 1994).

Officer conducting protective frisk is permitted to make a cursory, plain view examination of any object seized in order to determine whether it indeed is a weapon or other dangerous instrument. People v. Ratcliff, 778 P.2d 1371 (Colo. 1989).

Officers conducting a protective search of an auto are entitled to make a cursory examination of any objects discovered during the search of the passenger compartment in order to assure themselves that the objects are not dangerous. People v. Weston, 869 P.2d 1293 (Colo. 1994).

Police protective search of passenger compartment of vehicle justified. People v. Brant, 252 P.3d 459 (Colo. 2011).

Arresting officer had an objectively reasonable basis to justify a protective search of a vehicle because the defendant gave the officer a false name, the investigatory stop occurred in a place known for frequent criminal activity, and the officer had already observed one weapon in the vehicle. Therefore, the trial court erred in suppressing the firearm that was discovered. People v. Delacruz, 2016 CO 76, 384 P.3d 349.

Applying the "plain feel" doctrine, police properly seized evidence discovered in cloth glove. People v. Brant, 252 P.3d 459 (Colo. 2011).

Search of trunk did not constitute valid protective or inventory search where police only temporarily detained the rental vehicle and where the driver was to retain control over the vehicle and drive the vehicle to the police station for the purpose of confirming that the driver had lawful possession of the vehicle. People v. Litchfield, 918 P.2d 1099 (Colo. 1996).

Where the detention and search of the defendant exceeded the constitutional limits of an investigatory stop, the strip search of the defendant must be justified either as a search incident to a lawful arrest or as a search within the scope of the defendant's voluntary consent. People v. Lingo, 806 P.2d 949 (Colo. 1991).

Ordering driver to get out of vehicle during traffic stop. It is not an unlawful search or seizure during a lawful traffic stop for a police officer who reasonably suspects a motorist of violating traffic laws to order the motorist to get out of the vehicle and walk to the rear or to some other nearby place to ensure the officer's safety while he investigates suspected traffic violation. People v. Carlson, 677 P.2d 310 (Colo. 1984).

Stopping a defendant's vehicle to arrest a passenger was constitutionally permissible. Therefore, drugs possessed by the defendant that the police officers found in the vehicle were the fruit of a lawful search incident to the arrest of the defendant's passenger, and not the fruit of an unlawful seizure. People v. Taylor, 41 P.3d 681 (Colo. 2002).

Police officers had reasonable and articulable basis for suspecting criminal activity and initiating a valid investigatory detention, and had a reasonable basis for expanding the scope of the detention for the limited purpose of determining whether the defendant was reaching for a weapon. Facts presented to police that defendant paid for four one-way airline tickets to "source city" for illicit drugs with currency in small denominations and hesitated in providing surnames of passengers were consistent with a drug courier profile. Such profile was confirmed by the police upon observing the defendant and his companions arrive at the airport with only carry-on baggage. Upon the officers' request for identification the defendant's conduct caused the police to be concerned that the defendant was reaching for a weapon. In addition, the officers believed defendant was the subject of an outstanding warrant. People v. Perez, 852 P.2d 1297 (Colo. App. 1992).

Limited seizure aimed solely at neutralizing any threat to officer or citizen is justified and conduct raises reasonable suspicion where officer is engaged in a valid search or arrest and a third party walks into the scene, refuses to show his hands upon request, and makes a furtive gesture. People v. Hardrick, 60 P.3d 264 (Colo. 2002).

Circumstances, taken as a whole, justify officer's stop of defendant: Drugs were found at the scene, thus increasing the risk of violence; occupants of the residence were not cooperative; and defendant did not comply with officer's attempts to ensure defendant was not a safety threat. People v. Hardrick, 60 P.3d 264 (Colo. 2002).

Search and seizure incident to lawful arrest is lawful. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971); People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971); People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

A reasonable search may be made in the place where a lawful arrest occurs in order to find and seize articles connected with a crime as the fruits thereof, or as the means by which it was committed. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).

Where the arrest is legal, a search is not violative of the state and federal constitutions regarding unreasonable search and seizure where circumstances justifying the arrest were also those furnishing probable cause for the search. People v. Clark, 173 Colo. 129, 476 P.2d 564 (1970); People v. Noreen, 181 Colo. 327, 509 P.2d 313 (1973).

Where there was probable cause to make the warrantless arrests, the contemporary warrantless searches of the defendants and a U-Haul van were lawful. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).

Opening of "tin-foil" package found in narcotics suspect's pocket held valid as search incident to lawful arrest. People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

A search incident to an arrest, for which police officers had no statutory authority but which was constitutionally correct, as the officers had probable cause, is not an unlawful seizure. People v. Wolf, 635 P.2d 213 (Colo. 1981).

Arresting officers are entitled to conduct a thorough search of a defendant's person at the time of his custodial arrest and to seize any contraband they discover, even though it is not related to the crime for which defendant was initially arrested. People v. Harfmann, 633 P.2d 500 (Colo. App. 1981).

Such a search requires no independent justification, such as a reasonable suspicion or belief that the defendant might be armed or in possession of contraband. People v. Tottenhoff, 691 P.2d 340 (Colo. 1984); People v. Bischofberger, 724 P.2d 660 (Colo. 1986); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989).

A search incident to the arrest of a minor was valid where the sheriff's deputy had probable cause to make the arrest. People in Interest of S.J.F., 736 P.2d 29 (Colo. 1987).

Search incident to lawful arrest for driving without a license is constitutional. People v. Meredith, 763 P.2d 562 (Colo. 1988).

A search of the passenger compartment of a motor vehicle is valid if (1) there has been a lawful custodial arrested and (2) the person arrested was an occupant or a recent occupant of the vehicle. People v. Savedra, 907 P.2d 596 (Colo. 1995).

Open bed of pickup truck is subject to an incidental search. People v. Barrientos, 956 P.2d 634 (Colo. App. 1997).

A vehicle passenger compartment search incident to arrest is valid even if the defendant is transported from the scene prior to the conclusion of the search. People v. Graham, 53 P.3d 658 (Colo. App. 2001).

Search of a backpack at police station was justified by lawful arrest and prompt conveyance of defendant to police station. People v. Boff, 766 P.2d 646 (Colo. 1988).

Search of defendant's backpack was lawful since it was a search of a container near the defendant incident to arrest. The U.S. supreme court's decision in Arizona v. Gant, 556 U.S. 332 (2009), applies only to vehicle searches not a search of a person. People v. Marshall, 2012 CO 72, 289 P.3d 27.

Distinction between an inventory search and a broad evidentiary search is a question of fact under the circumstances of the particular case. People v. Taube, 864 P.2d 123 (Colo. 1993).

Where there are dual purposes for an arrest and search, the trial court must determine whether the purpose of the arrest is a mere pretext intended to validate an otherwise invalid search. Where the officer had information that drugs were located in the defendant's trunk and the officer found the drugs after arresting the defendant on a traffic stop and conducting an inventory search of the car, the trial court was required to determine whether the arrest and resulting inventory search were a pretext for conducting an investigatory search. People v. Hauseman, 900 P.2d 74 (Colo. 1995) (interpreting the fourth amendment to the U.S. Constitution).

When an officer reasonably applies written policy and unwritten routine procedures in deciding to conduct an inventory search, the search is not pretextual. People v. Gee, 33 P.3d 1252 (Colo. App. 2001).

The decision to impound defendant's car was in accordance with standardized police procedure, thus the impoundment and inventory did not violate defendant's right to be free from unreasonable search and seizure. People v. Milligan, 77 P.3d 771 (Colo. App. 2002).

The cocaine in defendant's fanny pack inevitably would have been discovered during an inventory of his vehicle, accordingly, the trial court did not err in denying defendant's motion to suppress this evidence. People v. Milligan, 77 P.3d 771 (Colo. App. 2002).

But search incident to unlawful incarceration invalid. Where, under the circumstances of the case, the incarceration was illegal and unjustified, since the accused had funds to post the only bond that the officer could require, the search incident to the incarceration was also invalid. People v. Overlee, 174 Colo. 202, 483 P.2d 222 (1971).

Search may include area under accused's immediate control. The right to search and seize without a search warrant incident to a lawful arrest extends to things under the accused's immediate control, and, to an extent depending on the circumstances of the case, to the place where he is arrested. People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971).

An arresting officer has an incidental right to make a contemporaneous search of the person arrested and of things under his control, for weapons by which his escape might be effected or the officer's safety or life endangered. Roybal v. People, 166 Colo. 541, 444 P.2d 875 (1968).

There is ample justification for a search of the arrestee's person and the area "within his immediate control" -- construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971).

The lawful arrest of a person justifies a contemporaneous warrantless search of the person and the immediately surrounding area. People v. Henry, 631 P.2d 1122 (Colo. 1981); People v. Clouse, 859 P.2d 228 (Colo. App. 1992).

Prosecution can show the search was contemperaneous to the arrest and limited to an area immediately around the arrestee. This search was lawful because the court found there was a continuing and ongoing search of the nightstand that was within the area immediate to the arrestee after the arrest. People v. Gothard, 185 P.3d 180 (Colo. 2008).

Scope of warrantless evidentiary search incident to arrest is limited to evidence related to offense for which arrest is made. In re People in Interest of B.M.C., 32 Colo. App. 79, 506 P.2d 409 (1973).

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).

Search not unreasonable where officer reasonably believed offense committed. A search and seizure involved was not unreasonable when the officer conducting it had a probable and reasonable belief that an offense had been committed. Hopper v. People, 152 Colo. 405, 382 P.2d 540 (1963).

Search of passenger's purse lawful when search of vehicle incident to lawful arrest of driver. People v. McMillon, 892 P.2d 879 (Colo. 1995); People v. Kirk, 103 P.3d 918 (Colo. 2005).

Warrant generally required to search cell phone even when phone is seized incident to arrest. The U.S. supreme court's holding in Riley v. California, 573 U.S. 373, 134 S. Ct. 2 473, 189 L. Ed. 2 d 430 (2014), effectively precludes officer's argument that viewing defendant's text messages was a lawful search incident to arrest. People v. Omwanda, 2014 COA 128, 338 P.3d 1145.

The question of whether the search of the car was incident to arrest was not properly before the court, and the court declined to address it since it was not raised at the trial court level. People v. Thomas, 853 P.2d 1147 (Colo. 1993).

People need not show that handcuffed arrestee was physically able to reach exact place searched at exact second searched. People v. Hufnagel, 745 P.2d 242 (Colo. 1987).

Where warrantless entry and arrest are based on probable cause and search warrant is issued subsequent to the entry and arrest, the evidence seized is not inadmissible because of the warrantless entry and arrest. People v. Vaughns, 175 Colo. 369, 489 P.2d 591 (1971).

Scope of search incident to arrests for minor offenses. When persons are arrested for minor traffic violations or minor municipal offenses, the instrumentalities or evidence of such crimes are 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).

However, even though a person may not be subject to a custodial arrest for possessing one ounce or less of marihuana in violation of § 18-18-406, the non-custodial arrest of such a person may permit not only a search for weapons, but also an extensive search for the instrumentalities of the crime. People v. Bland, 884 P.2d 312 (Colo. 1994).

Scope of inventory search conducted pursuant to protective custody is limited by the privacy interest of the detainee and any closed containers must be set aside and a warrant obtained before they may be opened. However, in an inventory search pursuant to an arrest, the searching officer may completely search all of the arrestee's belongings, including closed containers. People v. Carper, 876 P.2d 582 (Colo. 1994).

Police station, immediately following arrest, is not too remote from the place of arrest in a search and seizure case. Baca v. People, 160 Colo. 477, 418 P.2d 182 (1966); Glass v. People, 177 Colo. 267, 493 P.2d 1347 (1972).

Modern police practice calls for a thorough search at the station house of any person who is taken into custody as well as the "frisking" which takes place at the moment of arrest. Such searches are not unreasonable; they are an integral part of efficient police procedure. Baca v. People, 160 Colo. 477, 418 P.2d 182 (1966); Roybal v. People, 166 Colo. 541, 444 P.2d 875 (1968).

Where, after her arrest, the defendant was transported immediately to police headquarters so that a female matron might conduct the search according to police regulations, the substantially contemporaneous search was made incident to a lawful arrest. People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973).

Search preceding arrest cannot be justified as incident to arrest. When the search and seizure preceded the arrest, and the officers intended by the entry and search to secure evidence upon which to predicate the subsequent arrest, such a search is not incident to the arrest, but rather the arrest is in truth incident to the search. The search cannot be justified by what it turned up and is illegal. Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965).

Where officers who used invalid search warrant to obtain entry to living quarters had no probable cause for arrest of occupant until they unlawfully entered his quarters, search of premised could not be justified as incident to arrest of occupant, whom officers allegedly observed, upon entering quarters, in act of committing crime of illegally possessing narcotics. Brown v. Patterson, 275 F. Supp. 629 (D. Colo. 1967), aff'd, 393 F.2d 733 (10th Cir. 1968).

Unless search and arrest are nearly simultaneous. The arrest need not precede the search where the two acts (search and arrest) are nearly simultaneous and constitute for all practical purposes one transaction. People v. Drumright, 172 Colo. 577, 475 P.2d 329 (1970).

Right to search motor vehicle independent of right to arrest driver. The right to search a motor vehicle may exist independently of the right to arrest a driver or occupant. People v. Meyer, 628 P.2d 103 (Colo. 1981).

Officers not required to ignore evidence in plain view. Police officers standing in a place where they have every right to be 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. Baird, 172 Colo. 112, 470 P.2d 20 (1970); People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

If an officer sees the fruits of crime--or what he has good reason to believe to be fruits of crime--lying freely exposed on a suspect's property, he is not required to look the other way or disregard the evidence his senses bring him. Marquez v. People, 168 Colo. 219, 450 P.2d 349 (1969).

Where the evidence was voluntarily put on the table in front of the sheriff passing as a buyer, there was no search involved which could be said to be unreasonable. Patterson v. People, 168 Colo. 417, 451 P.2d 445 (1969).

Being legitimately on the property, police officers are entitled to seize any stolen items which are in plain view. Blincoe v. People, 178 Colo. 34, 494 P.2d 1285 (1972); People v. Billington, 191 Colo. 323, 552 P.2d 500 (1976).

Under the plain view rule, where the officer would have been entitled to seize the check stubs and sheets of paper at the time of the search, the officer did not act unconstitutionally in making the seizure at a later time, away from the premises, when examining the papers which were properly recovered pursuant to authorization from the defendant. People v. Billington, 191 Colo. 323, 552 P.2d 500 (1976).

If a police officer observes illegal activity inside a defendant's apartment by looking through the living room window from a common entrance or similar passageway, those observations do not constitute a search. People v. Donald, 637 P.2d 392 (Colo. 1981).

A warrantless seizure does not offend the fourth amendment as long as the incriminating character of an item is immediately apparent and the officer seizing it is lawfully located in a place from which the officer can both plainly see and lawfully access it. People v. Koehn, 178 P.3d 536 (Colo. 2008).

Although items seized were not within the scope of a valid search warrant, the pants pocket and kitchen cabinet were places that could contain guns or bullets for which a search was validly authorized. People v. Koehn, 178 P.3d 536 (Colo. 2008).

The "immediately apparent" requirement of the plain view exception means nothing more than the police must possess probable cause without conducting a further search. People v. Swietlicki, 2015 CO 67, 361 P.3d 411.

Plain view doctrine provides that no warrant is needed to seize evidence in plain view which police or similar public officials see while conducting a legitimate investigation of criminal activity. People v. Gurule, 196 Colo. 562, 593 P.2d 319 (1978).

A well-defined exception to the rule (that warrantless searches and seizures are presumptively invalid) is the plain view doctrine, which holds that a warrant is not required to seize items discovered in plain view while conducting a legitimate investigation of criminal activity. People v. Harding, 620 P.2d 245 (Colo. 1980).

Warrantless search permissible under plain view doctrine where officer entered under exigent circumstances and with the permission of apartment manager who had appearance of authority to consent to search and the contraband was inadvertently discovered. People v. Berow, 688 P.2d 1123 (Colo. 1984).

Evidence seized under plain view exception can be photographed and measured. There is no reason for requiring the police to obtain a search warrant to photograph and measure, as part of an ongoing investigation, evidence which they lawfully seize under the plain view exception. People v. Reynolds, 672 P.2d 529 (Colo. 1983); People v. Reger, 731 P.2d 752 (Colo. App. 1986).

Warrantless search valid under plain view exception when police officer entered under exigent circumstances and had knowledge of facts establishing reasonable nexus between drug bindle and criminal activity. People v. Martin, 806 P.2d 393 (Colo. App. 1990).

The plain view doctrine permits a law enforcement officer to seize evidence that is plainly visible if: (1) Initial intrusion into the premise was legitimate; (2) officer had a reasonable belief that the evidence was incriminating; and (3) officer had a lawful right to access the object. In this case, exigent circumstances justified the officer's presence in the hotel room satisfying the first criteria. Also, the officer observed the clear baggie that appeared to contain methamphetamine, so the incriminating nature of the evidence was apparent, giving the officer the right to seize it. People v. Gothard, 185 P.3d 180 (Colo. 2008).

Consent to entry of a residence for the purpose of inquiry constitutes a valid intrusion for the purposes of the plain view doctrine. Police officers may constitutionally knock at the entrance to a residence and seek permission to enter for the purpose of inquiry and, if the occupant validly consents, the officers may enter. People v. Milton, 826 P.2d 1282 (Colo. 1992).

Consent given to police officers to enter a residence for the purposes of inquiry does not justify otherwise impermissible searches or seizures, but such consent may support seizure of evidence falling within the plain view doctrine. People v. Milton, 826 P.2d 1282 (Colo. 1992).

The mere observation by government officials of that which is plainly visible to anyone does not constitute a search for constitutional purposes. Hoffman v. People, 780 P.2d 471 (Colo. 1989).

Plain view doctrine did not apply where marihuana pipe was not visible to officer until after he was standing in the living room without invitation. People v. O'Hearn, 931 P.2d 1168 (Colo. 1997).

The plain feel doctrine is an exception to the warrant requirement that is met when an officer lawfully pats down a suspect's clothing and feels an object whose contour or mass makes its identity immediately apparent. If the object is contraband, the warrantless seizure is justified in the same manner as in a plain view context. When the officer immediately recognized a pipe during a pat-down search, he was entitled to remove the item and seize it upon determining it was contraband. People v. Rushdoony, 97 P.3d 338 (Colo. App. 2004).

Officer's warrantless entry into trailer under emergency doctrine was proper and warranted admission of evidence in plain view in subsequent drug and homicide prosecutions. People v. Reger, 731 P.2d 752 (Colo. App. 1986).

The presence of a burning building clearly created an exigent circumstance that justified a warrantless entry by fire officials to extinguish the blaze and warranted seizure of evidence in plain view. People v. Harper, 902 P.2d 842 (Colo. 1995).

Officers' seizure of rifles was justified by the plain view doctrine after entry into home based on exigent circumstances. The intrusion into the home was legitimate since it satisfied the criteria for an exigent circumstances search. People v. Pappan, 2018 CO 71, 425 P.3d 273.

Plain view seizure is permissible where: (1) There is a prior valid intrusion; (2) discovery of the evidence is inadvertent; and (3) the object in plain view possesses a readily apparent incriminating nature. People v. Harper, 902 P.2d 842 (Colo. 1995).

Factors applied in People v. Dumas, 955 P.2d 60 (Colo. 1998).

Plain view seizure is permissible where child victim's statements that defendant had child pornography on his computer supplied probable cause to believe the computer held child pornography. People v. Swietlicki, 2015 CO 67, 361 P.3d 411.

Police may seize evidence in plain view if: (1) The initial police intrusion onto the premises was legitimate; (2) the police had a reasonable belief that the evidence seized was incriminating; and (3) the police had a lawful right of access to the object. People v. White, 64 P.3d 864 (Colo. App. 2002).

The plain view exception applies to items in open drawers so long as the officer did not pick up or move the object before he or she noticed its incriminating character or open or move the dresser drawer and he or she had lawful access to the object. People v. Bostic, 148 P.3d 250 (Colo. App. 2006).

Rationale behind the plain view exception to the warrant requirement is that, where the police inadvertently come upon evidence during the course of an otherwise lawful search, it would be a needless inconvenience and possibly dangerous to require a warrant for the seizure of such evidence. People v. Stoppel, 637 P.2d 384 (Colo. 1981).

Inadvertence requirement. So long as the police do not have probable cause to believe the evidence in plain view would be present, and the evidence is observed in the course of an otherwise justified search, the inadvertence requirement for a valid warrantless search under the plain view doctrine is met. People v. Stoppel, 637 P.2d 384 (Colo. 1981); People v. Clements, 661 P.2d 267 (Colo. 1983).

When the terms of a search warrant allowed officers to enter a bedroom to measure its dimensions, the discovery of a jar of bullets on the dresser was inadvertent because there was no probable cause to believe a jar of bullets would be found. People v. Cummings, 706 P.2d 766 (Colo. 1985).

Where police search for bloodstained rags in the garage was valid under the terms of the search warrant, the discovery of a rifle meets the inadvertence requirement when the rifle was found in a place which might have contained the bloodstained rags. People v. Cummings, 706 P.2d 766 (Colo. 1985).

Reasonable suspicion short of probable cause will justify the superficial scrutiny of an object seen in plain view during the course of a valid search of a defendant's premises. People v. Torand, 633 P.2d 1061 (Colo. 1981).

Evidence in plain view seized during protective search. Seizure of items which are in plain view during a legitimate protective search is constitutional where suspects were stopped in area of criminal activity, where crime tools and possibly stolen items were found in automobile, and where suspect attempted to conceal something under automobile seat, thus providing officer with probable cause to believe that he had come upon incriminating evidence. People v. Melgosa, 753 P.2d 221 (Colo. 1988); People v. Smith, 13 P.3d 300 (Colo. 2000).

Threshold question in determining whether a person has been subjected to unreasonable governmental conduct is whether the person had a reasonable expectation of privacy in the area or item searched or seized. This involves weighing whether (1) the person exhibited a subjective expectation of privacy in the area or item and, if so (2) whether society recognizes such an expectation as reasonable. People v. Carper, 876 P.2d 582 (Colo. 1994).

No legitimate expectation of privacy where defendant was sitting in apartment facing open door which led to hallway of complex which allowed officers to view defendant without entering apartment. People v. Harris, 797 P.2d 816 (Colo. App. 1990).

Escaped probationer had no reasonable expectation of privacy when authorities searched the residence of his parolee brother and found illegal drugs and a deadly weapon belonging to defendant, even when defendant only stayed in brother's residence occasionally. People v. Brown, 250 P.3d 718 (Colo. App. 2010).

No reasonable expectation of privacy exists in a conversation that can be heard without the aid of a listening device by persons lawfully present. People v. Hart, 787 P.2d 186 (Colo. App. 1989).

There is no expectation of privacy of objects in plain view. People v. Stoppel, 637 P.2d 384 (Colo. 1981).

No expectation of privacy in physical traits. A driver of a motor vehicle has no legitimate expectation of privacy in his physical traits and demeanor that are in the plain sight of an officer during a valid traffic stop. People v. Carlson, 677 P.2d 310 (Colo. 1984).

Where detainee voluntarily discloses the contents of his pocket to officer conducting an inventory search, detainee has not manifested a subjective expectation of privacy in the contents of his pocket, therefore, conduct of officer in removing a bindle from the detainee's pocket and opening it did not constitute a search or seizure for the purposes of fourth amendment analysis. People v. Carper, 876 P.2d 582 (Colo. 1994).

Unique nature of drug bindle infers contraband contents without any reasonable expectation of privacy so that opening of bindle lawfully seized under plain view exception was permissible. People v. Martin, 806 P.2d 393 (Colo. App. 1990).

Officer may look into automobile. To look into an automobile is not a violation of law, and an officer has the right to shine a flashlight into a car. People v. Ramey, 174 Colo. 250, 483 P.2d 374 (1971).

Where police officer approached parked van in which defendant was seated, acting suspiciously, he had a right to flash his light inside, and marijuana which he saw in the van and seized was admissible against defendant. People v. Shriver, 186 Colo. 405, 528 P.2d 242 (1974).

When an officer legitimately makes an investigatory stop of a vehicle, he may look through a car window and use a flashlight in observing objects lying inside the vehicle. People v. Henry, 631 P.2d 1122 (Colo. 1981).

It is not against the law for a police officer to look inside a car, nor to use a flashlight to do so. People v. McCombs, 629 P.2d 1088 (Colo. App. 1981).

And may use flashlight in darkened room. Fact that police officer used his flashlight to observe the items in a darkened room does not in and of itself alter the application of the plain view doctrine. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

Articles in plain view inside automobile can be seized. Where articles similar to those reported taken in a burglary are in plain view when an officer shines his flashlight into a car, they can be seized. People v. Ramey, 174 Colo. 250, 483 P.2d 374 (1971).

And officers may thoroughly search such automobile. Once the officers have seen the suspect articles which are in plain view, they have the right thoroughly to search the car. People v. Ramey, 174 Colo. 250, 483 P.2d 374 (1971).

Plain view exception applies to contraband in defendant's home observed by officers using a flashlight to view inside defendant's residence. Officers who were lawfully on defendant's porch when defendant left front door open could use flashlights to peer into the home. The fact that the officers used their flashlights to see inside defendant's home did not transform their plain view observations into an illegal search because, had it been daylight, the contraband on the table inside the home would have been plainly visible to the officers. People v. Glick, 250 P.3d 578 (Colo. 2011).

But mere fact that package is in plain view does not automatically warrant intrusion into its contents. People v. Casias, 193 Colo. 66, 563 P.2d 926 (1977).

Seizure of a plastic bag and its contents falls within the plain view exception of the warrant requirement. Officer's view of the drugs was not obscured by the container because the drugs were clearly visible through the plastic bag, and it was "immediately apparent" to the officer that the bag contained a controlled substance. People v. Hammas, 141 P.3d 966 (Colo. App. 2006).

Auto map pocket is not a closed container. An officer may therefore lawfully examine the contents of the map pocket in the course of a protective search. When a container is not closed or is transparent, the container supports no reasonable expectation of privacy and its contents can be said to be in plain view. People v. Weston, 869 P.2d 1293 (Colo. 1994).

Evidence discovered during inventory search of defendant's van was admissible in the absence of showing that police acted in bad faith or for sole purpose of investigation. Colo. v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987).

Evidence discovered in vehicle admissible when found pursuant to a valid inventory search. Pineda v. People, 230 P.3d 1181 (Colo. 2010).

Certain restrictions have been placed upon plain view doctrine in order to protect private citizens from general warrantless seizures being carried out under the guise of a plain view discovery: first, the police must be in a place where they are legitimately entitled to be; second, police cannot use the plain view doctrine as a pretext for a warrantless seizure of evidence they expect to uncover in their search; third, the officer seizing the evidence must have good reason to believe that the exposed item is incriminating evidence, although it need not be illegal per se. People v. Gurule, 196 Colo. 562, 593 P.2d 319 (1978); People v. Harding, 620 P.2d 245 (Colo. 1980); People v. Stoppel, 637 P.2d 384 (Colo. 1981).

A plain view seizure is permissible under the following circumstances: There must be a prior valid intrusion; the discovery of the evidence must be inadvertent; and the officer must have reasonable cause to believe that the exposed item is incriminating. People v. Hearty, 644 P.2d 302 (Colo. 1982); People v. Cummings, 706 P.2d 766 (Colo. 1985); People v. Lillie, 707 P.2d 1043 (Colo. App. 1985).

While it is required that for a plain view seizure to be permissible the officer must have present knowledge of facts that establish a nexus between the article to be seized and criminal behavior, the criminal behavior need not relate to the criminal activity that brought the officers onto the premises. People v. Lillie, 707 P.2d 1043 (Colo. App. 1985).

Property was properly seized under the plain view doctrine even though it was not contraband, given the disarray of the residence, the character and variety of the property, and the fact that a rifle was found containing an address label that did not match the name and address of any of the persons known to occupy the residence. People v. Lillie, 707 P.2d 1043 (Colo. App. 1985).

Factors establishing a "nexus" between the evidence seized and criminal behavior. In order to seize evidence discovered in "plain view", but not described in the warrant, there must be a "nexus" between the evidence and criminal behavior. Factors relevant to this determination are: (1) Whether the items seized are similar to items described in the warrant; (2) whether the quantity and placement of the property renders it unlikely that the property is on the premises for ordinary use; and (3) whether persons on the scene can offer information concerning the property. People v. Franklin, 640 P.2d 226 (Colo. 1982); People v. Salazar, 715 P.2d 1265 (Colo. App. 1985), cert. denied, 744 P.2d 80 (Colo. 1987).

Police were justified in seizing 13 guns, a large quantity of suspected drugs, and other items during search of defendant's premises where the search warrant police officers were executing described similar items, where some of the items were known to be stolen, and where the amount and location of the items were suspicious. People v. Salazar, 715 P.2d 1265 (Colo. App. 1985), cert. denied, 744 P.2d 80 (Colo. 1987).

Plain view alone is never enough to justify warrantless seizure of evidence. People v. Harding, 620 P.2d 245 (Colo. 1980).

A "plain view" observation requires a prior valid intrusion at the outset. People v. Hogan, 649 P.2d 326 (Colo. 1982).

Plain view doctrine inapplicable. The "plain view" doctrine is not applicable, where the hashish was not in plain view and the officer admitted he did not know what was contained in the aluminum foil package and that it could have contained most anything. People v. Ware, 174 Colo. 419, 484 P.2d 103 (1971).

Plain view doctrine has no valid application where the view of the marijuana on the table, seen through the opening in the doorway after the door had been unlocked and partially opened, was the product of an unlawful entry. People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974).

In executing a search warrant, police officers may search areas in which the items identified in the warrant might reasonably be found, including closed containers. Text messages that are outside the scope of the warrant discovered in a separate folder when searching a cell phone do not fall under the plain view exception. People v. Herrera, 2015 CO 60, 357 P.3d 1227.

Plain view exception did not apply where officers conducted detailed search of defendant's home following issuance of court order for seizure of home under civil forfeiture statutes, but without obtaining a search warrant. People v. Taube, 864 P.2d 123 (Colo. 1993).

Plain view exception did not apply where police officers did not have search warrant to enter apartment to execute arrest warrant even though they could see defendant within the apartment. People v. Aarness, 116 P.3d 1233 (Colo. App. 2005).

If a police officer sees stereo equipment during the search of a residence pursuant to an unrelated warrant which the officer suspects, but has no probable cause to believe is stolen, the officer may not move the equipment to record its serial numbers without violating the constitutional prohibition against unreasonable search and seizure. The "plain view" exception may be invoked only if the serial numbers can be recorded without moving the equipment. People v. Alexis, 794 P.2d 1029 (Colo. App. 1989), rev'd on other grounds, 806 P.2d 929 (Colo. 1991).

"Inventory" exception did not apply where officers searched defendant's home following issuance of court order for seizure of home under civil forfeiture statutes, but without obtaining a search warrant, and no inventory was actually made nor was search limited by standardized criteria. People v. Taube, 864 P.2d 123 (Colo. 1993).

Jailers are not required to obtain a warrant to conduct a second search of an inmate's clothing which has been inventoried and continues to be held in the jail's custody for safekeeping. People v. Salaz, 953 P.2d 1275 (Colo. 1998).

Consent search is outside ambit of traditional fourth amendment warrant requirements. People v. Hancock, 186 Colo. 30, 525 P.2d 435 (1974).

Ordinarily, the fourth amendment bars searches conducted without a warrant issued upon probable cause. However, an exception to this rule has long been recognized for searches conducted with the consent of the person exercising effective control over the place searched or the article seized. People v. Helm, 633 P.2d 1071 (Colo. 1981).

Consent to warrantless search not invalid under the fourth amendment merely because of a reasonable, good-faith mistake of fact by the officers concerning the authority of the party consenting to the search. People v. McKinstrey, 852 P.2d 467 (Colo. 1993); People v. Hopkins, 870 P.2d 478 (Colo. 1994).

As consent to search waives constitutional protection. When an accused consents to a search of his premises, he waives the constitutional protection which prohibits unreasonable searches and seizures. Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967).

No warrant need be obtained in order for police to make a search where consent thereto, in light of the totality of the circumstances, has been freely and voluntarily given. People v. Billington, 191 Colo. 323, 552 P.2d 500 (1976); People v. Drake, 785 P.2d 1257 (Colo. 1990).

A search loses its illegal effect when a defendant, complaining thereof, gave permission for such a search of the premises. This consent removes the applicability of the constitutional guaranty. Williams v. People, 136 Colo. 164, 315 P.2d 189 (1957); Hopper v. People, 152 Colo. 405, 382 P.2d 540 (1963); Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969).

Evidence allegedly obtained by unreasonable search and seizure is not inadmissible where defendant consented to a search of his premises. Williams v. People, 136 Colo. 164, 315 P.2d 189 (1957).

The court need not concern itself with the investigatory procedures of Crim. P. 41.1 where the defendants voluntarily submitted to fingerprinting, thereby waiving their constitutional protections. People v. Hannaman, 181 Colo. 82, 507 P.2d 466 (1973).

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); People v. Lingo, 806 P.2d 949 (Colo. 1991).

Police may conduct warrantless search for incriminating evidence when person to be searched voluntarily consents. People v. Diaz, 793 P.2d 1181 (Colo. 1990).

Even if police officers' initial entry into defendant's home was not supported by exigent circumstances, defendant's consent to the search of his home was voluntary and attenuated from any illegality; therefore, admission of evidence was not error. People v. Benson, 124 P.3d 851 (Colo. App. 2005).

A warrantless search is valid if an officer reasonably relies on the apparent authority of the person giving consent to the search regardless of the actual authority of the consenting party. People v. Hopkins, 870 P.2d 478 (Colo. 1994).

Defendant's express refusal to consent to a search did not invalidate the search based on voluntary consent of a co-occupant of the premises who had joint access and control. People v. Miller, 94 P.3d 1197 (Colo. App. 2004).

Wife's consent to entry of co-owned home permitted seizure of items in plain view even though the items were in a room that husband warned his wife not to enter. Once the officers were invited in, they had no duty to determine whether the absent co-owner would also consent to the entry. People v. Shover, 217 P.3d 901 (Colo. App. 2009).

A co-owner may consent to a search of their home after the other co-owner is no longer physically present at the residence as long as the police did not remove the other co-owner in order to avoid an objection to the search. Although defendant barricaded himself in the house and forbid the police to enter, after he surrendered and was taken into custody the police could conduct a warrantless search of the home for weapons upon request of the defendant's wife. People v. Strimple, 2012 CO 1, 267 P.3d 1219.

Co-occupant's objection to a search must be made at the time officers receive consent from another occupant. Defendant's later objection did not overrule his wife's consent when defendant did not object at the time his wife invited officers inside. Williams v. People, 2019 CO 108, 455 P.3d 347.

Family friend had actual authority to consent to the police officer's entry into house and it was reasonable for the police officer to believe that he had authority to enter the house based on the apparent authority of the family friend. People v. White, 64 P.3d 864 (Colo. App. 2002).

Warrantless search of property by police who had the voluntary consent of the "caretaker" to search is invalid where the caretaker did not have common authority over the property. Petersen v. People, 939 P.2d 824 (Colo. 1997).

But consent given by both the property manager and apartment tenant provided police with objectively reasonable basis for believing that they were authorized to enter the apartment without a warrant. People v. Trusty, 53 P.3d 668 (Colo. App. 2001).

A search justified by the apparent authority doctrine is not authorized by consent from one with authority to give it. Rather, such a search, without valid consent, does not violate this section because it is not unreasonable. Petersen v. People, 939 P.2d 824 (Colo. 1997).

However, police belief that a caretaker having no ownership interest in the property could consent to a search was unreasonable because it was a mistake of law and not a mistake of fact. Petersen v. People, 939 P.2d 824 (Colo. 1997).

The question of whether reliance on apparent authority to consent to search is reasonable is a question of law subject to de novo review. People v. Hopkins, 870 P.2d 478 (Colo. 1994).

Evidence supported officers' decision to conduct a search of a house based on the apparent authority doctrine. The victim was unclothed outside the house in the middle of the night suggesting a connection with the house; she explained her key and clothes were inside the house; and she said she lived in the house with the defendant. Under the circumstances of an active crime scene involving multiple assaults and victims, it was reasonable for the officers to believe they had the authority to forcibly enter the home. People v. Clemens, 2 013 COA 16 2 , 417 P.3d 833, rev'd on other grounds, 2017 CO 89, 401 P.3d 525.

Although defendant may limit the scope of his consent, and when this occurs the police must likewise limit the scope of their search unless they properly procure a warrant authorizing a broader search. People v. Billington, 191 Colo. 323, 552 P.2d 500 (1976).

Consent to search may be exceeded and must be limited to scope of the consent. Consent to officers' "looking around" house did not authorize extensive 45-minute search. People v. Thiret, 685 P.2d 193 (Colo. 1984).

Scope of consent, where defendant consented to "complete search of my vehicle and contents" and made no attempt to further limit the search, extended to vehicle's trunk, spare tire compartment, and spaces behind loose door panels where contraband might be hidden. People v. Olivas, 859 P.2d 211 (Colo. 1993).

The scope of a general consent search extends to any area that an objective officer could reasonably assume might hold the object of the search, including the trunk of a vehicle and unlocked containers therein. People v. Minor, 222 P.3d 952 (Colo. 2010).

Search of checkbook within scope of defendant's consent to search for drugs, contraband, or weapons because it was objectively reasonable to believe that checkbook could contain drugs. People v. Dumas, 955 P.2d 60 (Colo. 1998).

When defendant voluntarily provides cell phone passcode for a limited purpose, it is not outside the scope of consent for officer to use the passcode to conduct a search of the phone pursuant to a warrant. Once an individual discloses the digits of his or her passcode to law enforcement, it is unreasonable to expect those digits to be private from the very party to whom he or she disclosed them, regardless of any limitations he or she might be said to have implicitly placed upon the disclosure. People v. Davis, 2019 CO 24, 438 P.3d 266.

Warning to defendant that he can refuse to give permission to search without warrant sufficiently advises him of his rights, and it is not necessary to advise him of the right to silence and counsel. Massey v. People, 178 Colo. 141, 498 P.2d 953 (1972).

When consent is given after an interrogation in violation of Miranda, the consent is likely to be constitutionally infirm. People v. Cleburn, 782 P.2d 784 (Colo. 1989).

Evidence obtained when consent to search follows improper police conduct is admissible only if the consent was voluntary and not an exploitation of the prior illegal conduct. People v. Rodriguez, 945 P.2d 1351 (Colo. 1997).

State troopers' warrantless search failed all three prongs of the test enumerated in Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), in determining whether a preceding illegal stop renders inadmissible a subsequently obtained inculpatory statement given after Miranda warnings where: (1) The temporal proximity of the illegal detention and the consent to search was immediate; (2) there was no, or no significant, intervening circumstances between the illegal detention and the consent to search; and (3) the illegal detention of defendant for an extended period of time after trooper was satisfied as to the grounds for the initial contact was flagrant. People v. Rodriguez, 924 P.2d 1100 (Colo. App. 1996), aff'd, 945 P.2d 1351 (Colo. 1997).

Custody alone does not render consent involuntary. People v. Helm, 633 P.2d 1071 (Colo. 1981); People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

No affirmative duty to warn of right to refuse consent. It is not necessary to impose on police officers an affirmative duty to warn persons of their right to refuse consent because other evidence is often adequate to demonstrate that a search was agreed to voluntarily. People v. Helm, 633 P.2d 1071 (Colo. 1981); People v. Olivas, 859 P.2d 211 (Colo. 1993).

Knowledge of right to refuse consent is not prerequisite to valid consent, but is one of many factors to be considered by the trial court. People v. Helm, 633 P.2d 1071 (Colo. 1981); People v. Carlson, 677 P.2d 310 (Colo. 1984); People v. Olivas, 859 P.2d 211 (Colo. 1993).

Knowledge of the purpose of a search is not prerequisite to valid consent, but is one of the many factors to be considered by a trial court in determining whether a search was justified on the ground of consent. People v. Santistevan, 715 P.2d 792 (Colo. 1986).

After consent has been granted to conduct search, consent cannot be withdrawn. People v. Kennard, 175 Colo. 479, 488 P.2d 563 (1971).

So courts indulge every reasonable presumption against waiver of fundamental constitutional rights, and this is especially true where the defendant is under arrest. People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971).

And the people must prove that consent to search was given; that there was no duress or coercion, expressed or implied; and that the consent was unequivocal and specific and freely and intelligently given. Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967); People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971); People v. Billington, 191 Colo. 323, 552 P.2d 500 (1976).

The burden of proof in the determination of whether a consent to a warrantless search is intelligently and freely given rests firmly on the people. People v. Neyra, 189 Colo. 367, 540 P.2d 1077 (1975); People v. Wieckert, 191 Colo. 511, 554 P.2d 688 (1976), overruled on other grounds in Villafranca v. People, 194 Colo. 472, 573 P.2d 540 (1978); People v. Savage, 630 P.2d 1070 (Colo. 1981); People v. Carlson, 677 P.2d 310 (Colo. 1984); Derdeyn v. Univ. of Colo., 832 P.2d 1031 (Colo. App. 1991).

The standard of review for voluntariness of consent to search in this state is a preponderance of the evidence. People v. Delage, 2018 CO 45, 418 P.3d 1178.

Only requirement of intelligent consent to a search is that the person giving the consent know that he may properly refuse to give his permission to a search conducted without a warrant. Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969).

Consent must be voluntarily given. A warrantless search is constitutionally justified by a consent to search only if that consent is voluntarily given. People v. Savage, 630 P.2d 1070 (Colo. 1981).

Voluntary consent defined. A voluntary consent to search is one intelligently and freely given. People v. Helm, 633 P.2d 1071 (Colo. 1981); People v. Carlson, 677 P.2d 310 (Colo. 1984); People v. Santistevan, 715 P.2d 792 (Colo. 1986); People v. Cleburn, 782 P.2d 784 (Colo. 1989), cert. denied, 495 U.S. 923, 110 S. Ct. 1959, 109 L. Ed. 2d 321 (1990).

While the defendant's knowledge of his right to withhold consent is a factor to be considered, an advisement of this right is not a condition to a finding of voluntary consent. People v. Bowman, 669 P.2d 1369 (Colo. 1983).

Consent is voluntary when it is the result of free and unconstrained choice and not the result of force, threat, or promise. People v. Diaz, 793 P.2d 1181 (Colo. 1990).

Voluntary consent to search is the product of an essentially free and unconstrained choice by its maker and not the result of circumstances where the subject's will has been overborne and the capacity for self-determination critically impaired. People v. Reddersen, 992 P.2d 1176 (Colo. 2000).

A search based upon voluntary consent may be undertaken by government actors without a warrant or probable cause, and any evidence discovered during the search may be seized and admitted at trial. People v. Morales, 935 P.2d 936 (Colo. 1997).

However, consent is only valid where it is given freely and voluntarily. People v. Morales, 935 P.2d 936 (Colo. 1997).

Test of voluntariness in context of consent searches is whether the consent is the product of an essentially free and unconstrained choice by its maker. People v. Elkhatib, 632 P.2d 275 (Colo. 1981).

If an officer's entry into an apartment was lawful, the occupant's consent to search still must satisfy constitutional standards of voluntariness, that is, it must be the product of an essentially free and unconstrained choice by its maker. People v. Donald, 637 P.2d 392 (Colo. 1981).

The contact between the officers and defendant was a consensual contact and did not amount to a seizure. The evidence supports the conclusion that defendant voluntarily cooperated with the police, in both allowing the police to enter the room and search the room. People v. Tweedy, 126 P.3d 303 (Colo. App. 2005).

Search of defendant's vehicle was consensual. After returning defendant's driver's license and registration, informing defendant he was not issuing him a ticket, and saying good-bye, the officer asked defendant if he had drugs or guns in the vehicle and if he could search the vehicle. Defendant's consent to the search occurred after the initial detention, which was based on a justified traffic stop, so the search was valid. People v. Montalvo-Lopez, 215 P.3d 1139 (Colo. App. 2008).

The police officer did not act coercively when she patted down a driver without reasonable suspicion when the driver consented; she requested consent to search the driver's vehicle before her traffic investigation concluded; she took possession of the driver's documents and did not return them until after the search; or when she instructed the driver to sit in the patrol car and to remain there with another officer during the search. People v. Chavez-Barragan, 2016 CO 66, 379 P.3d 330.

Driver with control over the vehicle possesses the authority to consent to a search even when owner is present as a passenger. People v. Minor, 222 P.3d 952 (Colo. 2010).

Intoxication does not subvert consent if the individual is capable of giving an explanation of his actions. People v. Helm, 633 P.2d 1071 (Colo. 1981).

The fact that a person was tired, "chemically messed up", and only 18 years old did not support a finding that the person's consent to conduct a search was involuntary. People v. Licea, 918 P.2d 1109 (Colo. 1996).

Unlawful arrest does not render a subsequent consent involuntary, although the consent might well be invalid under the derivative evidence doctrine. People v. Henry, 631 P.2d 1122 (Colo. 1981).

Consent is not rendered involuntary by the fact that the person is in custody and has not been advised of their constitutional rights. People v. Licea, 918 P.2d 1109 (Colo. 1996).

Therefore, a failure to give a Miranda advisement in a non-custodial situation, such as a routine traffic stop, also does not render the consent to search involuntary. People v. Reddersen, 992 P.2d 1176 (Colo. 2000).

Officers do not need to give Miranda warnings prior to asking for consent to perform a search even if the suspect is in custody. The consent need only be voluntary. People v. Garcia, 11 P.3d 449 (Colo. 2000).

Coerced consent involuntary. If there is coercion or duress in the obtaining of the consent, or if the facts and circumstances surrounding the giving of the consent are such as to indicate the unlikelihood of voluntary consent, such consent will be held to be involuntary and therefore unlawful. Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967).

To secure a consent search, 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).

Psychologically coerced consent. Police officers from an independent investigation had enough evidence to consider defendant as a prime suspect and had probable cause to believe she had committed several burglaries in the apartment building where she lived, but they did not obtain a search warrant for a search of defendant's apartment. Rather, the officers testified defendant had been the victim of a break-in and sexual assault and one of their officers had interviewed defendant concerning that attack. Thus, the officers said they gained admittance on the pretext that they desired to consult defendant further about the unsolved crime against her person. Under the totality of the circumstances the defendant's actions in consenting to a search of her apartment and admissions of criminality made by her were induced by psychological coercion and a promise made to her by the police that she would not be taken to jail. Thus, consent to the search was not freely and voluntarily given nor was the statement made voluntarily. People v. Coghlan, 189 Colo. 99, 537 P.2d 745 (1975).

Consent obtained by deception constitutionally lacking. 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).

Voluntariness determined from totality of circumstances. The determination of the voluntariness of a consent to search is measured by the totality of the circumstances surrounding the purported waiver. This is true regardless of the basis for the challenge. People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971); Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967); Phillips v. People, 170 Colo. 520, 462 P.2d 594 (1969); Dickerson v. People, 179 Colo. 146, 499 P.2d 1196 (1972); People v. Wieckert, 191 Colo. 511, 554 P.2d 688 (1976); People v. Savage, 630 P.2d 1070 (Colo. 1981); People v. Carlson, 677 P.2d 310 (Colo. 1984); People v. Genrich, 928 P.2d 799 (Colo. App. 1996).

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); People v. Drake, 785 P.2d 1257 (Colo. 1990); People v. Munoz-Gutierrez, 2015 CO 9, 342 P.3d 439.

All the evidence, including the various circumstances of the giving of the consent, must be objectively viewed with diligent care by the trial court, and, if the court finds no evidence showing coercion or duress, it is proper to hold that the consent was voluntary and was a knowledgeable waiver of the defendant's constitutional right. Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967).

Under the totality of circumstances test, it is appropriate to take into account both the characteristics of the consenting person, such as youth, education and intelligence, and the circumstances of the search, such as duration and location. People v. Helm, 633 P.2d 1071 (Colo. 1981); People v. Carlson, 677 P.2d 310 (Colo. 1984); People v. Cleburn, 782 P.2d 784 (Colo. 1989), cert. denied, 495 U.S. 923, 110 S. Ct. 1959, 109 L. Ed. 2d 321 (1990); People v. Licea, 918 P.2d 1109 (Colo. 1996).

Factors involved in determination of whether the consent was voluntary include the defendant's age, education, intelligence, state of mind, the duration and location of the search, the gravity of any official misconduct, and any other relevant circumstances. People v. Genrich, 928 P.2d 799 (Colo. App. 1996).

Consent to a warrantless search may be implied from the totality of the circumstances. Consent is implied based on the person's conduct in engaging in a certain activity. In this case, there was no conduct by either party in the hotel room that implied consent to enter. Defendant's request to deputy to help get his money back is not sufficient to imply an invitation to enter particularly since the request was made after the deputy entered the room without permission. Since the initial officer's entry was unlawful, the second officer's entry may not be predicated on the first unlawful entry. People v. Prescott, 205 P.3d 416 (Colo. App. 2008).

Relationship between police conduct and a person in defendant's circumstances, and with the defendant's particular characteristics, is necessary for determining whether a consent to search is voluntary. People v. Magallanes-Aragon, 948 P. 2 d 5 2 8 ( C olo. 1997); People v. Berdahl, 2012 C OA 179, 310 P.3d 230.

Court applied erroneous subjective standard when it relied exclusively on the defendant's state of mind to determine the voluntariness of a consent to search. The court failed to determine whether the police conduct was objectively coercive in relation to the defendant's subjective state. People v. Magallanes-Aragon, 948 P.2d 528 (Colo. 1997).

The circumstances surrounding a consent to search must be examined for evidence of intrusive, overbearing, or coercive police conduct and whether the impact of such conduct rendered the consent involuntary. People v. Magallanes-Aragon, 948 P.2d 528 (Colo. 1997); People v. Reddersen, 992 P.2d 1176 (Colo. 2000); People v. Munoz-Gutierrez, 2015 CO 9, 342 P.3d 439.

If the consent to search the residence was voluntary, the search may be permissible even though the entry was illegal. People v. Genrich, 928 P.2d 799 (Colo. App. 1996).

Prosecution must demonstrate by clear and convincing evidence that an occupant freely gave the police consent to enter the premises. In the course of making an inquiry, a police officer is not entitled to walk past the person opening the door to a house without obtaining permission to enter the house. People v. O'Hearn, 931 P.2d 1168 (Colo. 1997).

Trial court's finding of "passive consent" to police officer's entry into a home without a warrant amounted to a finding of no consent in that the finding showed only a failure to object and as such there was an insufficient basis to conclude that the ensuing entry was achieved as a result of the homeowner's consent. People v. Santisteven, 693 P.2d 1008 (Colo. App. 1984).

Evidence held sufficient to establish consent to search. People v. Drake, 785 P.2d 1257 (Colo. 1990).

Trial judge in best position to make determination. The trial judge, having the advantage of seeing and hearing the witnesses and being able to evaluate their credibility, is in the best position to weigh the significance of the pertinent facts involved and determine whether, under the totality of all the facts and circumstances, the defendant voluntarily consented to this search. Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967); People v. Carlson, 677 P.2d 310 (Colo. 1984).

Consent waives subsequent objections to search. Where the defendants gave permission to game and fish officer at check station to search the trunk of the automobile, and to look inside the trash bag contained in the trunk of the automobile, this consent waives any objections against the search and seizure. People v. Benner, 187 Colo. 309, 530 P.2d 964 (1975).

Where after the police advised the defendant of his rights, he voluntarily consented to a search for, and examination of, certain clothing which he admittedly wore on the night that the crime was committed, the defendant's consent caused any subsequent attack on the validity of the search to be without merit. People v. Sanchez, 184 Colo. 25, 518 P.2d 818 (1974).

The university of Colorado failed to demonstrate that intercollegiate athletes voluntarily without coercion signed consent forms, where, because of economic or other commitments the athletes had made to the university, they were not faced with an unfettered choice in regard to signing the consent. Derdeyn v. Univ. of Colo., 832 P.2d 1031 (Colo. App. 1991).

Consent is involuntary as a matter of law where evidence was uncovered in an illegal search and defendant was confronted with incriminating evidence when police had firm control over his home and family. People v. Walter, 890 P.2d 240 (Colo. App. 1994).

Defendant's decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, defendant's wife's voluntary consent to the search of the couple's home was valid as to defendant. People v. Fuerst, 2013 CO 28, 302 P.3d 253.

Apparent owner who has equal access to premises may authorize search. The apparent owner of the property who has equal rights to the use of the premises and has equal access to the premises may legally authorize a search of those premises. Spencer v. People, 163 Colo. 182, 429 P.2d 266 (1967).

Third-party consent. A voluntary consent to a warrantless search may be given by a third party who possesses common authority over, or other sufficient relationship to, the premises. People v. Mickens, 734 P.2d 646 (Colo. App. 1986).

Another person possessing common authority over the premises may consent to a search of those premises. People v. Wieckert, 191 Colo. 511, 554 P.2d 688 (1976).

The authority which justifies third-party consent does not rest upon the law of property but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. People v. Savage, 630 P.2d 1070 (Colo. 1981).

When two or more persons have equal right of ownership, occupancy, or other possessory interest in the premises searched or the property seized, any one of such persons may authorize a search and seizure thereof thereby binding the others and waiving their rights to object. Lanford v. People, 176 Colo. 109, 489 P.2d 210 (1971).

Defendant's mother could grant consent to a search since she was owner of the house and controlled the possessory interest of those occupying the house; only she made rules concerning what areas of house would be used by whom; and defendant was tenant at sufferance. People v. Lucero, 720 P.2d 604 (Colo. App. 1985).

Consent to a search of a dwelling need not be obtained from the owner, if it is obtained from a third party who possesses "common authority over the property" or some other "sufficient relationship" with it. People v. Rivers, 727 P.2d 394 (Colo. App. 1986); People v. Kellum, 907 P.2d 712 (Colo. App. 1995); People v. White, 64 P.3d 864 (Colo. App. 2002).

Consent from third party possessing common authority over the premises may be explicit, or it may be inferred from the totality of the circumstances. People v. Rivers, 727 P.2d 394 (Colo. App. 1986).

The valid consent of a person with common authority justifies a warrantless search of a residence despite the physical absence of the consenting co-occupant and the physical presence of a nonconsenting co-occupant. People v. Sanders, 904 P.2d 1311 (Colo. 1995).

When one co-occupant has victimized the other, the emergency nature and exigent circumstances provided an additional reason for validating a co-occupant's consent to a warrantless search when the nonconsenting co-occupant was present. People v. Sanders, 904 P.2d 1311 (Colo. 1995).

Where alleged accomplice voluntarily consented to the search of his motel room, to which the defendant admittedly had access the day after a burglary, voluntary consent provides an independent and constitutional basis for the search as well as a justification for the use of the items seized as evidence of defendant's guilt in prosecution for burglary in the second degree. People v. Hutto, 181 Colo. 279, 509 P.2d 298 (1973).

A warrantless electronic transmission and monitoring of conversations taking place between a suspect and a police informant in the informant's motel room, when the informant has previously consented to the electronic surveillance, does not violate this section. People v. Velasquez, 641 P.2d 943 (Colo.), 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).

Babysitter and her mother could not grant consent to search of homeowner's bedroom where there was no evidence that homeowner or his wife delegated authority to babysitter with regard to residence beyond that necessary to care for children or that police officer reasonably believed babysitter or her mother had the authority to consent to a search of homeowner's bedroom. People v. Walter, 890 P.2d 240 (Colo. App. 1994).

So may resident of apartment. A resident of an apartment has the ability to consent to a search of the premises, and a search based on such consent is not illegal. Lanford v. People, 176 Colo. 109, 489 P.2d 210 (1971).

Mere property interest not common authority. Common authority over property to consent to a warrantless search is not to be implied from the mere property interest a third party has in the property. People v. Savage, 630 P.2d 1070 (Colo. 1981).

Valid consent inferred where individual giving consent had been entrusted with a key by individual seeking to suppress the evidence discovered. People v. Rivers, 727 P.2d 394 (Colo. App. 1986).

Consent by wife. 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).

The evidence supported the court's finding that defendant's wife freely and voluntarily consented to the search of her premises where she was informed by the police that they would not conduct the search if she did not want them to, and she responded that she wanted all of the guns out of her house, and where she assisted the police officers in their efforts to locate a revolver in the garage and offered them coffee while they searched her house. People v. Wieckert, 191 Colo. 511, 554 P.2d 688 (1976).

But landlord is not proper person to give consent to search of his tenant's residence. Condon v. People, 176 Colo. 212, 489 P.2d 1297 (1971).

Absent a showing of authority from the tenant to the apartment manager, the manager cannot authorize or permit an entry into a tenant's apartment in the absence of exigent circumstances. People v. Boorem, 184 Colo. 233, 519 P.2d 939 (1974).

Reliance on consent of landlord is a mistake of law and not a mistake of fact. Therefore, search does not fall within the good faith exception of § 16-3-308. People v. Brewer, 690 P.2d 860 (Colo. 1984) (decided prior to 1985 amendment to § 16-3-308).

Apartment manager had necessary appearance of authority to consent to warrantless search of tenant's apartment when he had been asked by tenant to watch the apartment and to arrest intruders and when he had a substantial interest in protecting hotel as the security and maintenance manager. People v. Berow, 688 P.2d 1123 (Colo. 1984).

Juvenile as consenting party. The same test is applicable to the validity of the search whether the consenting party is an adult or a juvenile with the one exception noted in the children's code, section 19-2-102(3)(c). That is, a parent, guardian, or legal custodian of the child must be present, and freely and intelligently give his consent. People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971).

The fact that one is a minor does not necessarily preclude effective consent to a search, especially where the person consenting has a greater right in the premises searched than the person who is contesting the legality of the search. Blincoe v. People, 178 Colo. 34, 494 P.2d 1285 (1972).

Since § 19-2-210 (1) does not apply to consent to search by juvenile in a noncustodial setting, the proper test to measure the validity of the consent is set forth in §§ 19-2-208 and 19-2-209 (4). People in Interest of S.J., 778 P.2d 1384 (Colo. 1989).

Consent held valid. Where a police officer advised a juvenile defendant and his father that a search warrant could be obtained if the defendant's father did not sign the consent form, and it was contended that the representation constituted coercion, it was held that consent was "freely and intelligently" given. People v. Reyes, 174 Colo. 377, 483 P.2d 1342 (1971).

Where the defendant on two separate occasions gave his consent to search his motel room to two different officers, although at the times of consent he was under arrest, handcuffed, and claiming innocence, nevertheless the totality of all the facts and circumstances did not create a situation where it must be said as a matter of law that the defendant's consent was involuntary. Capps v. People, 162 Colo. 323, 426 P.2d 189 (1967).

Where a defendant is informed of his right not to allow officers to search his vehicle without their first obtaining a warrant, and he not only consents to the search but unlocks the trunk himself, he is under no duress or coercion and he knowingly and intelligently waives his constitutional rights by consenting to the search. Dickerson v. People, 179 Colo. 146, 499 P.2d 1196 (1972).

Where the defendant attempted to direct the police officers to enter his car and remove the articles which were in it clearly compelling the officers to inventory the contents of the car for the protection both of the defendant and themselves, as a matter of law, this was a consent of the defendant for them to enter the car. Upon entry the articles in question were then in plain view. People v. Bordeaux, 175 Colo. 441, 488 P.2d 57 (1971).

The defendant's contention that the officers lacked authority to search the trunk of his sister's car does not have merit where his sister consented to the procedures which were followed and cooperated with the F.B.I. in making the arrest possible. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972).

Whether or not a search was incident to the defendant's arrest need not be decided, where it is clear that the defendant consented to the search after he had been given his Miranda warnings and had indicated that he understood his rights. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972).

Evidence held sufficient to establish consent to search. Lanford v. People, 176 Colo. 109, 489 P.2d 210 (1971).

Circumstances supported the trial court's conclusion that defendant did not consent to a search of his car since, unlike the pat-down search which was accomplished immediately and accompanied by repeated expressions of consent, thereby resolving any ambiguity, the search of the car was conducted after the defendant was taken into custody, back-up was radioed and had arrived, and defendant received his Miranda warnings. People v. Thomas, 853 P.2d 1147 (Colo. 1993).

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).

A search made pursuant to consent must be limited to the scope of the consent actually given, and the consent is measured by "objective reasonableness". A suspect who consents only to a limited search for certain materials does not automatically insulate him or herself from the lawful seizure of other objects not delineated in the officer's request; seizure is lawful if justified by another exception to the warrant requirement. People v. Najjar, 984 P.2d 592 (Colo. 1999); People v. Mack, 33 P.3d 1211 (Colo. App. 2001).

The act of taking blood for a blood test and the process of collecting and testing urine samples constitute an invasion of an employee's privacy interest and therefore constitute a "search" under the fourth amendment. Casados v. City & County of Denver, 832 P.2d 1048 (Colo. App. 1992), rev'd on other grounds, 862 P.2d 908 (Colo. 1993), cert. denied, 511 U.S. 1005, 114 S. Ct. 1372, 128 L. Ed. 2d 48 (1994).

Collection of blood sample does not constitute unreasonable search and seizure. People v. Duemig, 620 P.2d 240 (Colo. 1980), cert. denied, 451 U.S. 971, 101 S. Ct. 2048, 68 L. Ed. 2d 350 (1981).

Standard for admissibility of blood sample. The standard for determining the admissibility of a blood sample is that the trial court must determine that the police were justified in requiring the defendant to submit to the blood test, and that the means and procedures used were reasonable. People v. Rodriquez, 645 P.2d 857 (Colo. App. 1982).

It was objectively reasonable for both an investigating detective and a DUI officer to proceed with a warrantless blood draw because binding Colorado precedent held that exigent circumstances excused the necessity for a warrant under the circumstances. Therefore, suppression of the blood alcohol results was not warranted. People v. Barry, 2 015 COA 4, 349 P.3d 1139.

Blood sample taken prior to defendant's arrest and without his permission is not violation of defendant's constitutional rights so long as the facts establish probable cause to make such arrest at the time the sample is taken. People v. Sutherland, 683 P.2d 1192 (Colo. 1984); People v. Milhollin, 751 P.2d 43 (Colo. 1988); People v. MacCallum, 925 P.2d 758 (Colo. 1996); People v. Ackerman, 2015 CO 27, 346 P.3d 61.

The test set forth in Schmerber v. California (384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)) shall be the test which governs extraction of an involuntary blood sample from a putative defendant who is suspected of an alcohol-related driving offense. The four requirements of the test are: (1) Probable cause for arrest of the defendant for an alcohol-related driving offense; (2) a clear indication that the blood sample will provide evidence of the defendant's level of intoxication; (3) exigent circumstances which make it impractical to obtain a search warrant; and (4) reasonableness including conducting of the test in a reasonable manner. People v. Sutherland, 683 P.2d 1192 (Colo. 1984); People v. Milhollin, 751 P.2d 43 (Colo. 1988); People v. Shepherd, 906 P.2d 607 (Colo. 1995); People v. MacCallum, 925 P.2d 758 (Colo. 1996).

Where there were consistent statements from witnesses that the defendant was operating a motorcycle at an excessive speed and in a dangerous manner, where the investigating trooper noted that the defendant had the odor of an alcoholic beverage on his breath and had bloodshot eyes, where it has been established that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, and where blood has been extracted in a hospital environment according to accepted medical practices, the test requirements which govern the extraction of an involuntary blood sample have been met. People v. Milhollin, 751 P.2d 43 (Colo. 1988).

Exigent circumstances existed where there was a statement from an off-duty police officer that the defendant was operating a vehicle in a dangerous manner and that alcohol was involved, and the police were still investigating the scene of the crime and had not finished preparing an affidavit for a warrant when they learned that hospital personnel were taking the unconscious and injured defendant for medical procedures that could alter his blood alcohol content and potentially destroy critical evidence. People v. Ackerman, 2015 CO 27, 346 P.3d 61.

Probable cause existed to arrest driver where three eyewitnesses observed the driver's conduct of reckless and dangerous driving for a sustained period of time over the course of 15 miles, where the pattern of driving observed was highly unusual and erratic, and where the driver ultimately caused an accident that killed another motorist. People v. MacCallum, 925 P.2d 758 (Colo. 1996).

Standard for forced production of bodily fluids. In determining whether forced production of bodily fluids is permissible, the appropriate standard is clear indication that evidence of intoxication or drug abuse will be found. Moreover, there must be some indication that evidence of drugs or alcohol, if found, will be relevant to a crime for which the defendant may be charged. In the typical alcohol or drug case, this clear indication requirement is easily satisfied by observations of the defendant's speech, gait, breath, appearance, and conduct. People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976); People v. Milhollin, 751 P.2d 43 (Colo. 1988).

Statutory consent satisfies consent exception to fourth amendment warrant requirement. By driving in the state, driver consented to the terms of § 42-4-1301.1, including its requirement that driver submit to a blood draw. That prior statutory consent eliminated the need for the trial court to assess the voluntariness of driver's consent at the time of the interaction with law enforcement. People v. Simpson, 2017 CO 25, 392 P.3d 1207.

Taking blood under implied consent law not unconstitutional. The implied consent law is constitutional; and although it has been determined that the taking of blood is an intrusion of the person and a search within the meaning of the state and federal constitutions, such is not an unreasonable search and seizure violative of the fourth amendment or this section. Compton v. People, 166 Colo. 419, 444 P.2d 263 (1968); People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), appeal dismissed, 404 U.S. 1007, 92 S. Ct. 671, 30 L. Ed. 2d 656 (1972).

By driving in the state, drivers expressly consent to blood alcohol testing in certain circumstances, and the law requires testing of an unconscious driver. Law enforcement is not required to wait until an unconscious driver regains consciousness to allow an opportunity to withdraw statutory consent. People v. Hyde, 2017 CO 24, 393 P.3d 962.

Where the defendant was charged with causing injury while driving under the influence of intoxicating liquor, the trial court correctly denied the motion to suppress the blood sample where the defendant was in a semiconscious condition and was unable to consent or to refuse to give his consent. People v. Fidler, 175 Colo. 90, 485 P.2d 725 (1971).

Even if taken in nonmedical environment. Notwithstanding the fact that the blood extraction for the purpose of administering blood-alcohol test took place in a nonmedical environment without a doctor or nurse present, where the record reveals that a highly qualified and experienced medical technologist took the blood sample in conformity with the department of health regulations and with no infringement upon the personal dignity of the defendant, the taking was well within the ambit of a reasonable search. People v. Mari, 187 Colo. 85, 528 P.2d 917 (1974).

Standard for admissibility of roadside sobriety test. To satisfy constitutional guarantees against unlawful searches and seizures, a roadside sobriety test can be administered only when there is probable cause to arrest the driver for driving under the influence of, or while his ability is impaired by, intoxicating liquor or other chemical substance, or when the driver voluntarily consents to perform the test. People v. Carlson, 677 P.2d 310 (Colo. 1984).

Urine sample taken prior to defendant's arrest and without his permission is not violation of defendant's constitutional rights so long as the facts establish probable cause to make such arrest at the time the sample is taken. People v. Kokesh, 175 Colo. 206, 486 P.2d 429 (1971).

Blood and urine test evidence properly suppressed. Where there were no signs of defendant's being drunk observed either in her home or, later, at the hospital, the searches which obtained blood and urine samples against her will were conducted without any clear indication that these fluids would produce evidence of intoxication or drug use, thus violating her rights under the fourth amendment and this section, and the blood and urine test evidence was properly suppressed. People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976).

Requiring blood samples from a person convicted of a crime for DNA identification purposes satisfies the "special needs" exception to the fourth amendment. A DNA database serves a number of special needs beyond normal law enforcement, namely bringing closure to victims of past crimes and sheltering society from future victimization. These interests weigh heavily compared to the minimal intrusion into the greatly reduced expectation of privacy of the person convicted of a crime. People v. Shreck, 107 P.3d 1048 (Colo. App. 2004); People v. Ramirez, 140 P.3d 169 (Colo. App. 2005).

Applied to probationer in People v. Rossman, 140 P.3d 172 (Colo. App. 2006).

Use of refusal to consent to blood alcohol test as evidence of guilt does not violate fourth amendment right prohibiting unreasonable search. Defendant argued that use of refusal-to-consent evidence penalized the exercise of a defendant's right to refuse consent. Refusal to consent to testing is a statutory right under the express consent statute. While criminalizing a refusal to consent would be improper, use of refusal to consent as evidence of guilt and automatic suspension of driving privileges for refusal would not impermissibly burden a defendant's fourth amendment constitutional right to be free from a warrantless search. Fitzgerald v. People, 2017 CO 26, 394 P.3d 671; People v. King, 2017 CO 44, 401 P.3d 516; People v. Sewick, 2017 CO 45, 401 P.3d 521; People v. Maxwell, 2017 CO 46, 401 P.3d 523; People v. Maxwell, 2017 CO 47, 401 P.3d 518.

Privacy interests of a person on probation do not outweigh governmental interests in obtaining samples for DNA database. Defendant, who was on probation, could be ordered to submit biological samples for DNA testing without violating the state and federal constitutional prohibition against warrantless searches and seizures conducted without probable cause. A probationer has a diminished right to privacy that does not outweigh the government interests served by DNA databases, which are "undeniably compelling" and "monumental" in weight. People v. Rossman, 140 P.3d 172 (Colo. App. 2006).

Defendant's consent to DNA identification is not involuntary merely because defendant is not informed that the identification will be used in other investigations. People v. Collins, 250 P.3d 668 (Colo. App. 2010).

A reasonable person would understand that DNA sample taken and data obtained from analysis of the sample would remain in possession of law enforcement and be available for future law enforcement uses. Therefore, when a defendant consents to DNA testing without limitation, there is no constitutional violation if the sample is used to solve another crime. People v. Collins, 250 P.3d 668 (Colo. App. 2010).

Seizure of business records did not violate defendant's privilege against self-incrimination because defendant was not "compelled" to produce the papers; the papers were not communicative in nature, but were business records of which others must have had knowledge, rather than personal and private writings; and the papers were instrumentalities of the crime with which defendant was charged. People v. Tucci, 179 Colo. 373, 500 P.2d 815 (1972).

Discovery of contraband which is result of private inspections is constitutionally permissible. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).

When evidence comes into the possession of government without violation of petitioner's rights by governmental authority, there is no reason why the fact that individuals, unconnected with the government, may have wrongfully taken them, should prevent them from being held for use in prosecuting an offense where the documents are of an incriminatory character. People v. Benson, 176 Colo. 421, 490 P.2d 1287 (1971).

Airline has right to make own independent investigation of packages in its own interests--to protect lives and property from possible destruction from bombing--without the instigation or participation of law enforcement officials. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).

Airline freight personnel have the right and authority to make a reasonable inspection of packages accepted for shipment. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).

And airline, upon discovery of contraband, has duty to notify authorities. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).

Information obtained by officers after such notification is not tainted. Where an airline freight agent in San Francisco made a search on his own initiative of a package accepted for shipment, this was a lawful private inspection; and information obtained by officers after they had been notified by agent that the package contained dangerous drugs was not "tainted" and could serve as foundation for probable cause to make arrest and seizure at destination in Denver to which package was addressed. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).

Warrantless search lawful after defendant went through airport security checkpoint and need not be justified by any showing of probable cause or reasonable suspicion. Due to concern about air piracy or other acts of terrorism, after a potential passenger voluntarily consents to a search by submitting himself to the screening process, airport security is justified in conducting further physical search of carry-on item. Although continued search must be limited to determination of whether potential passenger is carrying an object that is potentially dangerous to air commerce, drugs discovered during the process are admissible. People v. Heimel, 812 P.2d 1177 (Colo. 1991).

Once defendant consented to security screening by walking though the magnetometer, he had no right to withdraw that consent prior to completion of a reasonable search of his bag. To allow withdrawal of consent prior to completion of the screening process would encourage airline terrorism by providing a secure exit where detection was threatened. People v. Heimel, 812 P.2d 1177 (Colo. 1991).

Potential passenger has the right to refuse an airport security search by leaving the area at any time prior to the actual commencement of the screening process and such refusal, without more, would not furnish any objective justification for any further detention or search. People v. Heimel, 812 P.2d 1177 (Colo. 1991).

Where individual relinquishes his claim to privacy in contraband and therefore is not the victim of an illegal search and seizure, the evidence seized is admissible against him. Dickerson v. People, 179 Colo. 146, 499 P.2d 1196 (1972).

Abandoned property. When all dominion and control over an article is surrendered by the act of the defendant, his capacity to object to search and seizure without a warrant is at an end. Smith v. People, 167 Colo. 19, 445 P.2d 67 (1968); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972).

When defendants abandon their vehicle and its contents, they have no standing to object to a subsequent search of the vehicle and seizure of evidence. People v. Hampton, 196 Colo. 466, 603 P.2d 133 (1979).

Where the defendants, or one of them, left a watch in a police car, it was abandoned, and the finding of it was not a search. People v. Ramey, 174 Colo. 250, 483 P.2d 374 (1971).

When the defendant expelled the incriminating evidence from his person, and from the vehicle, in which he was riding as a passenger, and it lit on a vacant lot, his dominion over and control of the evidence ended. Therefore, the act of the police officer in picking it up from the ground did not come within the realm of a search and seizure, and the incriminating evidence as far as the defendant was concerned was abandoned contraband in plain view. Martinez v. People, 169 Colo. 366, 456 P.2d 275 (1969).

A dog sniff search need not be justified by probable cause sufficient to obtain a search warrant, but instead by reasonable suspicion, similar to that required to stop and frisk a person suspected of involvement in imminent criminal activity. People v. Wieser, 796 P.2d 982 (Colo. 1990); People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 476 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (1986); People v. Boylan, 854 P.2d 807 (Colo. 1993).

Exploratory canine sniff of defendant's safe was a constitutional warrantless search where police had requisite reasonable suspicion that safe contained drugs. People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 476 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (1986).

The dog sniff of defendants' package sent by a private overnight courier was a search, but it was supported by reasonable suspicion and therefore legal. People v. Boylan, 854 P.2d 807 (Colo. 1993).

The totality of the circumstances demonstrated that the postal inspector had reasonable suspicion that the package contained narcotics before the dog-sniff search. People v. May, 886 P.2d 280 (Colo. 1994).

A dog sniff search of a person's automobile in connection with a traffic stop that is prolonged beyond its purpose to conduct a drug investigation intrudes upon a reasonable expectation of privacy and constitutes a search and seizure requiring reasonable suspicion of criminal activity. People v. Haley, 41 P.3d 666 (Colo. 2001).

The standard that applies to a dog sniff search of the exterior of a vehicle is reasonable suspicion. Being parked for fifteen minutes outside a house in which illegal drugs had been found seven weeks before and having a passenger in the vehicle who had used methamphetamine at some point in the past did not raise a reasonable suspicion that evidence of illegal activity would be found in the vehicle. Therefore, the police officer did not have reasonable suspicion to subject defendant's vehicle to a dog sniff search. People v. McKnight, 2 017 COA 93, 45 2 P.3d 82, aff'd, 2019 CO 36, 446 P.3d 397.

A dog sniff search of a lawfully stopped automobile does not violate the state constitution search and seizure provisions and does not require reasonable suspicion. There is no legitimate interest in possessing contraband, and the action of the dog is not a search since it only communicates the dog's belief that illegal drugs are present. People v. Esparza, 2012 CO 22, 272 P.3d 367.

Search of public alley. Defendant's constitutional right to be free from unreasonable search and seizure does not require the police officer to obtain a search warrant before searching a public alley. Martinez v. People, 162 Colo. 195, 425 P.2d 299 (1967).

D. Unreasonable Search and Seizure.

Law reviews. For article, "Logical Fallacies and the Supreme C ourt", see 59 U. C olo. L. Rev. 741 (1988). For comment, "An Exclusionary Rule Colorado Can Call Its Own", see 63 U. Colo. Law. 207 (1992).

Department of human services caseworkers who did not obtain a warrant under § 2 " target="_blank">19-1-11 2 but instead obtained only an order to investigate under § 19-3-308(3)(b) were not authorized to enter a home without consent, making their entry illegal under the fourth amendment. People v. Dyer, 2019 COA 161, 457 P.3d 783.

Exclusionary rule therefore required suppression of all evidence obtained by exploiting the illegal entries into the home. People v. Dyer, 2 019 COA 161, 457 P.3d 783.

A warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present defendant cannot be justified as reasonable on the basis of consent given to the police by another resident. People v. Miller, 143 P.3d 1195 (Colo. App. 2 006); People v. Nelson, 2 012 COA 37M, 296 P.3d 177.

Warrantless search of defendant's house violated his fourth amendment rights because defendant's long-time girlfriend, whom he had recently kicked out, had neither actual nor apparent authority to consent to a search of defendant's home. People v. Morehead, 2 015 COA 131, 450 P.3d 733, aff'd in part and rev'd in part on other grounds, 2 019 CO 48, 442 P.3d 413.

Police violated the fourth amendment by using a video camera installed near the top of a utility pole to conduct a continuous, three-month-long surveillance of defendant's backyard without first obtaining a search warrant. People v. Tafoya, 2 019 COA 176, __ P.3d __.

Defendant's decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, defendant's wife's voluntary consent to the search of the couple's home was valid as to defendant. People v. Fuerst, 2013 CO 28, 302 P.3d 253.

Because the cell phone in question could not be fairly characterized as abandoned, lost, or mislaid under the circumstances of the case, the warrantless examination of its contents amounted to an unconstitutional search. People v. Schutter, 249 P.3d 1123 (Colo. 2011).

Warrantless search of defendant's tablet computers violated the fourth amendment and, because the tablet videos were admitted into evidence against him, the trial was infected by constitutional error. People v. Folsom, 2 017 COA 146M, 431 P.3d 65 2 .

The policy underlying the exclusionary rule is deterrence of police misconduct. People v. Press, 633 P.2d 489 (Colo. App. 1981).

The primary purpose of the exclusionary rule is to deter unlawful police conduct by the exclusion of evidence which is the fruit of that unlawful conduct. People v. Banks, 655 P.2d 1384 (Colo. App. 1982).

Exclusionary rule is designed primarily to deter unlawful searches and seizures by police. People v. Fournier, 793 P.2d 1176 (Colo. 1990); People v. McKinstry, 843 P.2d 18 (Colo. 1993).

The exclusionary rule is intended to deter improper police conduct and should not be applied in cases where the deterrence purpose is not served, or where the benefits associated with the rule are minimal in comparison to the costs associated with the exclusion of the probative evidence. People v. Altman, 960 P.2d 1164 (Colo. 1998).

Defendant may not respond to an unreasonable search or seizure by a threat of violence against the officer and then rely on the exclusionary rule to suppress evidence pertaining to the criminal act of obstructing a peace officer and resisting arrest. People v. Brown, 217 P.3d 1252 (Colo. 2009)

For purposes of applying the exclusionary rule, a juvenile probation officer should be treated as an adjunct to the law enforcement team and not as a judicial officer or court clerk employee. Casillas v. People, 2018 CO 78M, 427 P.3d 804.

Evidence must be excluded where that evidence is derived from a juvenile probation officer improperly collecting DNA and uploading it to the federal combined DNA index system in violation of § 19-2-925.6 (1)(e)(III) and the fourth amendment. Casillas v. People, 2018 CO 78M, 427 P.3d 804.

Application of exclusionary rule in a dependency and neglect case requires the court to balance the deterrent benefits of applying the rule against the societal cost of excluding relevant evidence. People ex rel. A.E.L., 181 P.3d 1186 (Colo. App. 2008).

Here, applying the rule would have a high societal cost in terms of protecting child welfare interests. Therefore, the court did not err in denying mother's motion to suppress evidence. People ex rel. A.E.L., 181 P.3d 1186 (Colo. App. 2008).

The inevitable discovery exception to the exclusionary rule applies to both primary evidence and to secondary evidence. People v. Burola, 848 P.2d 958 (Colo. 1993); People v. Welsh, 58 P.3d 1065 (Colo. App. 2002), aff'd on other grounds, 80 P.3d 296 (Colo. 2003).

Where there was neither a search warrant, consent nor a valid arrest, the search was improper. Gale v. People, 174 Colo. 491, 484 P.2d 1210 (1971).

Test of admissibility of evidence obtained in, or as a result of, an illegal search is whether the challenged evidence was obtained by exploitation of the initial illegality or, instead, whether it was obtained by a means sufficiently distinguishable to be purged of primary taint. People v. Hogan, 703 P.2d 634 (Colo. App. 1985).

In determining whether the taint of an illegality has been dissipated, consideration is given to the temporal proximity of the illegality and defendant's statements, the presence of intervening circumstances, and the purpose and flagrancy of any official misconduct. People v. Harris, 729 P.2d 1000 (Colo. App. 1986).

The "fruit of the poison tree" doctrine which requires that evidence obtained as a result of an unconstitutional arrest be suppressed, is an exclusionary rule created primarily to deter unlawful police actions, and is applicable both to the illegally obtained evidence itself, as well as to any derivative evidence. People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994).

Exclusionary rule inapplicable where police conduct not improper. When there is no improper police conduct, the exclusionary rule is not applicable since its use would serve no purpose but to deprive the prosecution of reliable and probative evidence. People v. Banks, 655 P.2d 1384 (Colo. App. 1982).

Police conduct exercised in "good faith". A major consideration in determining the admissibility of statements obtained pursuant to alleged illegal police conduct is whether the law enforcement officer's conduct was exercised in "good faith", rather than as being purposeful or flagrant misconduct. People v. Banks, 655 P.2d 1384 (Colo. App. 1982).

The exclusionary rule does not apply to a search conducted in objectively reasonable reliance on binding appellate precedent -- even when the precedent is later overturned. People v. Barry, 2 015 COA 4, 349 P.3d 1139.

Where defendant police officers removed property without legal authority, their search for and seizure of fixtures was per se unreasonable and subjects defendant officers to civil liability for any resulting damages. Walker v. City of Denver, 720 P.2d 619 (Colo. App. 1986).

Governmental conduct must constitute search. In order for the exclusionary rule to apply, there first must be a determination that the challenged governmental conduct constitutes a search. People v. Gomez, 632 P.2d 586 (Colo. 1981), cert. denied, 455 U.S. 943, 102 S. Ct. 1439, 71 L. Ed. 2d 655 (1982).

Police-citizen encounter did not amount to a "seizure" within the meaning of this section. Two-minute conversation between police officers and defendant at the airport, where the police officer asked the defendant six basic questions in non-intimidating manner and without blocking the defendant's movement, was not a seizure. People v. Johnson, 865 P.2d 836 (Colo. 1994).

No seizure occurs during a consensual interview where a police officer merely seeks voluntary cooperation of a citizen by asking noncoercive questions. People v. Coleman, 55 P.3d 817 (Colo. App. 2002).

Prosecutor not required to object at every instance to a trial court's mischaracterization of the prosecution's argument that a police-citizen encounter did not amount to a seizure requiring reasonable suspicion of criminal activity. Remand to the district court was unnecessary to address the issue of the stop. People v. Johnson, 865 P.2d 836 (Colo. 1994).

Suppression of evidence obtained during extraterritorial arrest. Future violations of the statutes governing peace officers' authority to arrest may trigger application of the exclusionary rule and require suppression of evidence obtained in the course of an extraterritorial arrest. People v. Wolf, 635 P.2d 213 (Colo. 1981).

Officer making unconstitutional search violates law. Every officer making an unconstitutional search, and every officer advising or conniving at such conduct is a law violator. Massantonio v. People, 77 Colo. 392, 236 P. 1019 (1925).

Defendant's allegedly criminal acts were sufficiently attenuated from any illegal conduct of sheriff's deputies so that exclusion of evidence was not appropriate. Evidence of a new crime committed in response to an unlawful trespass is admissible. People v. Doke, 171 P.3d 2 37 ( C olo. 2 007); People v. Martin, 2014 C OA 112, 338 P.3d 1106; People v. Tomaske, 2019 CO 35, 440 P.3d 444.

Search of defendant was attenuated from the illegal seizure when defendant's independent and willful criminal actions broke the causal chain between the police officers' misconduct and their discovery of the evidence of defendant's criminal conduct. People in Interest of K.D.W., 2 0 2 0 COA 110, 471 P.3d 1276.

But defendant's criminal actions between the illegal seizure of item and the search of the illegally seized item did not break any causal connection between the illegal seizure and the evidence discovered in the search of the illegally seized item. People in Interest of K.D.W., 2 0 2 0 COA 110, 471 P.3d 1276.

Fruits of unlawful search are inadmissible in evidence. The fruits of an unlawful search are, by Mapp v. Ohio (367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)) and by Crim. P. 41 inadmissible in evidence. Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963).

Laudable ends no longer justify illegal means to obtain those ends and illegal searches can no longer furnish a foundation for the admission of evidence found and taken under illegal search. Wilson v. People, 156 Colo. 243, 398 P.2d 35 (1965).

In granting motion to suppress, where 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).

Fruits of search predicated on unlawful arrest cannot be used as evidence against defendants. Gale v. People, 174 Colo. 491, 484 P.2d 1210 (1971).

Where articles are seized incident to an arrest which is made without probable cause, the defendants' motion to suppress will be sustained. People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971).

Where the arrest of the defendant was "unreasonable" when tested by balancing the need to arrest under the exigencies of the situation against the invasion of the privacy which the arrest entailed, any evidence obtained is not admissible. People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970).

Where police officers' initial entry into apartment to execute arrest warrant was unlawful, all physical evidence seized from defendant's person and from other occupants of apartment should have been suppressed. People v. Aarness, 116 P.3d 1233 (Colo. App. 2005).

Where the sole basis of a probable cause for the search of the defendant's home presented in the affidavit was his confession, and that confession was illegally obtained under the "fruit of the poison tree" doctrine, the articles obtained must be suppressed. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

Having arrested defendant illegally, the prosecution cannot claim that evidence obtained as a result of this arrest need not be suppressed because it was abandoned by defendant. Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972).

Unless recognized exception to the exclusionary rule applies, evidence obtained by police as result of an unlawful search and seizure is not admissible against the defendant. People v. Fournier, 793 P.2d 1176 (Colo. 1990); People v. McKinstry, 843 P.2d 18 (Colo. 1993).

Fruit must be obtained as direct result of violation of defendant's constitutional rights. To apply the "fruit of the poison tree" doctrine, which is applicable in Colorado, the fruit of the search must have been obtained as the direct result of a violation of the defendant's constitutional rights--such a violation is said to taint the tree and, in turn, the fruit. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

The basic test utilized in determining if evidence is the "fruit" of an unlawful arrest is whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); People v. McCoy, 832 P.2d 1043 (Colo. App. 1992), aff'd, 870 P.2d 1231 (Colo. 1994).

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. Defendant who dropped bag of cocaine prior to arrest could not have the cocaine suppressed at trial using the argument of unconstitutional seizure. People v. McClain, 149 P.3d 787 (Colo. 2007).

Although defendant was unconstitutionally arrested, defendant's statements were admissible because they were sufficiently attenuated from the unlawful arrest. People v. Wambolt, 2 018 COA 88, 431 P.3d 681.

When "fruit of the poison tree" doctrine inapplicable. Where there is no illegality involved in the first seizure, there is no "poisonous fruit" requiring the application of the derivative evidence rule. People v. Meyer, 628 P.2d 103 (Colo. 1981).

Suppression of evidence seized in general exploratory search without probable cause. Where evidence seized was not discovered in plain view, by a "frisk" of the defendant for assaultive weapons, by a search of the defendant for instrumentalities or evidence of the offense for which he was arrested, by an inventory search, or by a search for evidence or instrumentalities of an offense for which there existed probable cause but, rather, was seized during a general exploratory search for which no probable cause existed, defendant's motion to suppress the evidence will be granted. People v. Valdez, 182 Colo. 80, 511 P.2d 472 (1973).

Exclusionary prohibition extends as well to the indirect as the direct products of unlawful invasions. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as the direct result of an unlawful invasion. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

The exclusionary rule not only bars the admission of evidence illegally acquired, but also prohibits the government from utilizing evidence which is the direct fruit or product of the initial illegality. People v. Hogan, 649 P.2d 326 (Colo. 1982); People v. Breland, 728 P.2d 763 (Colo. App. 1986).

But to suppress statements made by individuals subsequent to their illegal arrest with the defendant, defendant must establish that the incriminating statements arose from and were directly dependent upon defendant's own illegal arrest. People v. Zamora, 695 P.2d 292 (Colo. 1985).

Use of exclusionary rule not warranted where it would not result in appreciable deterrence. Exclusionary rule is the judicially created remedy, and not a personal constitutional right, that is designed to safeguard fourth amendment rights through its deterrent effect. Where DNA sample was provided as a condition of probation for a later-determined illegal sentence, case does not implicate exclusionary rule: (1) Constitutional error did not involve the police; and (2) conduct failed the "assessment of flagrancy" test in that the conduct was not sufficiently deliberate that exclusion could meaningfully deter it. People v. Glasser, 293 P.3d 68 (Colo. App. 2011).

Where evidence from search merely cumulative, constitutionality of search not determined. Where the evidence which was discovered in a warrant search and thereafter introduced at trial was merely cumulative of other overwhelming and competent evidence of the defendant's guilt, the constitutionality of the search need not be determined. People v. Wieckert, 191 Colo. 511, 554 P.2d 688 (1976), overruled on other grounds, Villafranca v. People, 194 Colo. 472, 573 P.2d 540 (1978).

Test of admissibility of evidence seized in lawful search following unlawful search is whether, granting establishment of the primary illegality, the evidence to which objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. People v. Hannah, 183 Colo. 9, 514 P.2d 320 (1973).

When "fruit of the poison tree" doctrine inapplicable. The "fruit of the poison tree" doctrine is inapplicable where the allegedly tainted information was in fact obtained by officers from independent, lawful sources apart from the defendant's statements. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

Cocaine seized by police as a result of an unlawful entry into an apartment in which the defendant was arrested does not fall within the inevitable discovery exception to the exclusionary rule since prosecutors could not establish that the evidence ultimately or inevitably would have been discovered by lawful means. People v. Burola, 848 P.2d 958 (Colo. 1993).

Evidence discovered after a nonconsensual, warrantless entry into the defendant's residence was properly suppressed. Because the officers were conducting a narcotics investigation, their nonconsensual entry was not justified by the existence of outstanding municipal warrants for the defendant based on dog license violations. People v. O'Hearn, 931 P.2d 1168 (Colo. 1997).

Under "independent source" exception to the exclusionary rule. Unconstitutionally obtained evidence may be admitted if the prosecution can establish that it was also discovered by means independent of the illegality. People v. Schoondermark, 759 P.2d 715 (Colo. 1988) (disapproving People v. Barndt, 199 Colo. 51, 604 P.2d 1173 (1980); People v. Turner, 660 P.2d 1284 (Colo. 1983); and People v. Griffith, 727 P.2d 55 (Colo. 1986)).

The independent source exception allows the admission of evidence obtained as the fruit of an illegal warrantless search or seizure where the government learned of the evidence "from an independent source". People v. Lewis, 975 P.2d 160 (Colo. 1999).

Under this exception, however, if search warrant is based partly on information unlawfully obtained, trial court must determine whether the lawful seizure was genuinely independent of the tainted seizure. In the absence of such determination on appeal, remand is proper so that the trial court can make the determination. People v. Cruse, 58 P.3d 1114 (Colo. App. 2002).

Independent source doctrine will justify admitting illegally obtained evidence if (1) the illegal discovery did not affect the officer's decision to seek the warrant that provided the independent source; and ( 2 ) the redacted warrant affidavit established probable cause. People v. Omwanda, 2 014 COA 128, 338 P.3d 1145.

Independent source doctrine applies to serial search warrants for the same evidence where the evidence was first discovered during the execution of a flawed warrant and then was discovered under a second warrant that was genuinely independent of the prior illegality. People v. Dominguez-Castor, 2 0 2 0 COA 1, 469 P.3d 514.

The attenuation exception to the poisonous tree doctrine applies when the connection between the lawless conduct of police and their discovery of the challenged evidence is so attenuated to dissipate the taint. There was no time delay from when the deputy unlawfully entered the hotel room and defendant's request for help, so the doctrine of attenuation does not apply. People v. Prescott, 205 P.3d 416 (Colo. App. 2008).

Illegally seized evidence admissible for impeachment purposes. Evidence that is a product of an unlawful search is admissible for the limited purpose of impeachment of a defendant's testimony. LeMasters v. People, 678 P.2d 538 (Colo. 1984).

Where illegally seized evidence is admitted for impeachment purposes, the nexus between defendant's statements and the contradictory evidence introduced on cross-examination must be apparent. LeMasters v. People, 678 P.2d 538 (Colo. 1984).

The impeachment exception to the suppression rule permits the use of constitutionally excluded evidence to impeach a defendant's own untruthful testimony. The exception does not permit the use of otherwise suppressed evidence to contradict obviously untruthful testimony, so long as such testimony is not provided by the defendant him or herself, and cannot possibly permit the use of such evidence to counter truthful testimony. People v. Johnson, 2 019 COA 159, __ P.3d __.

Suppressed evidence which tended to establish defendant's presence at scene of crime was not admissible on cross-examination to impeach defendant's direct testimony, where defendant in direct testimony did not refer to suppressed items. And where defendant made no statement on cross-examination that was properly impeachable by the suppressed items. LeMasters v. People, 678 P.2d 538 (Colo. 1984).

Suppressed evidence was not admissible for impeachment purposes where it was not "reasonably suggested" by defendant's direct testimony. People v. Eickman, 728 P.2d 369 (Colo. App. 1986).

Prosecution's burden of proof. The prosecution bears the burden of establishing that the evidence obtained from a witness was not obtained through exploitation of the defendant's illegally obtained statements. People v. Briggs, 668 P.2d 961 (Colo. App. 1983).

Evidence seized by arresting officers acting outside territorial limit of authority. Though police officers not in fresh pursuit exceeded their authority in arresting a defendant outside the territorial limit of their authority, suppression of evidence seized from the defendant incident to the arrest was not required where the warrant itself established probable cause. People v. Hamilton, 666 P.2d 152 (Colo. 1983).

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); People v. Vigil, 729 P.2d 360 (Colo. 1986); People v. Fournier, 793 P.2d 1176 (Colo. 1990).

Failure for good cause to comply with Crim. P. 41(c)(1), which requires affidavits for search warrants to be sworn to or affirmed before the issuing judge, does not constitute a constitutional violation that automatically triggers the exclusionary rule. People v. Fournier, 793 P.2d 1176 (Colo. 1990).

Independent source exception sufficient to legitimize seizure, under validly issued warrant, of evidence first encountered upon illegal entry. Where warrant issued after illegal entry was based upon facts known prior to and independently of illegal search, independent source would support legality of search. People v. Schoondermark, 759 P.2d 715 (Colo. 1988).

Independent source exception sufficient to legitimize seizure where affidavit in support of search warrant contained illegally obtained information but, after redacting the portions of the affidavit that were based on the illegal search, the remaining, lawfully obtained information established probable cause. People v. Pahl, 169 P.3d 169 (Colo. App. 2006).

Warrant based on independent source. The decision to seek the warrant was not predicated on useful information found during the unlawful search. People v. George, 2 017 COA 75, __ P.3d __.

Exclusionary rule inapplicable in attorney disciplinary proceeding. Disciplinary proceedings, which are sui generis, need not be afforded the same constitutional safeguards which are provided to an accused in a criminal case. The exclusionary rule should not be extended to provide a shield to a lawyer charged in a disciplinary complaint. People v. Harfmann, 638 P.2d 745 (Colo. 1981).

In civil proceedings, the suppression of illegally seized evidence is not always required. The determination of the applicability of the exclusionary rule beyond the context of a criminal prosecution is made by weighing the likely social benefits of excluding evidence against the likely costs of exclusion. Ahart v. Dept. of Corr., 943 P.2d 7 (Colo. App. 1996), aff'd, 964 P.2d 517 (Colo. 1998).

In cases in which an employee has a security- or safety-sensitive job, suppression of relevant evidence in a civil proceeding may not be the appropriate remedy for alleged constitutional violations. Ahart v. Dept. of Corr., 943 P.2d 7 (Colo. App. 1996).

Where outstanding arrest warrant was void from its inception, the arrest of the defendant violated fourth amendment to the United States Constitution and this section, and because neither the "good faith mistake" nor "technical violation" exceptions to the exclusionary rule, as defined in § 16-3-308, are applicable to the facts, evidence seized from defendant was properly suppressed. People v. Mitchell, 678 P.2d 990 (Colo. 1984).

If government agents act in violation of fourth amendment guarantee against unreasonable search and seizure, such violation gives rise to a cause of action for damages resulting from such conduct. Walker v. City of Denver, 720 P.2d 619 (Colo. App. 1986).

Warrantless entry into a home is proscribed and evidence derived from the illegal entry must be suppressed in the absence of probable cause to believe that a crime has been committed and exigent circumstances necessitating immediate police action. People v. Lewis, 975 P.2d 160 (Colo. 1999).

The difference between a permissible consensual encounter at a person's doorway and an impermissible constructive entry depends on whether there was coercive conduct or a display of force by police officers. People v. Nelson, 2 01 2 COA 37M, 296 P.3d 177.

Admission of the circumstances of the arrest in error did not violate defendant's fourth amendment right because the police never entered the defendant's home and defendant did not assert his right to have the police obtain an arrest warrant. Defendant voluntarily left his home so that the police could arrest him. People v. Summitt, 132 P.3d 320 (Colo. 2006).

Alleged conduct of bringing the media into plaintiff's home to film and record his arrest exceeded the scope of the arrest warrant and amounted to an unreasonable execution of a warrant, thus violating plaintiff's fourth amendment rights. Robinson v. City & County of Denver, 39 F. Supp. 2d 1257 (D. Colo. 1999).

Warrantless entry into private residence to inventory contents violated defendant's fourth amendment rights where home was seized pursuant to a temporary restraining order issued in a civil forfeiture case without probable cause to believe that the contents of the home were related to the nuisance activity. People v. Taube, 843 P.2d 79 (Colo. App. 1992).

Evidence discovered during inventory search of defendant's van was admissible in the absence of showing that police acted in bad faith or for the sole purpose of investigation. Colo. v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987).

The arrest of a person, together with the routine booking procedure incidental to such arrest, provides an adequate constitutional basis for a complete inventory search, including all articles and containers found in a purse. People v. Inman, 765 P.2d 577 (Colo. 1988).

Detention of safe after recovery from burglars who had stolen it from defendant until the safe was opened was not an unconstitutional seizure of safe. People v. Unruh, 713 P.2d 370 (Colo.), cert. denied, 476 U.S. 1171, 106 S. Ct. 2894, 90 L. Ed. 2d 981 (1986).

Statements made by a defendant subsequent to a warrantless arrest which could not be justified upon a basis of consent or exigent circumstances should have been suppressed notwithstanding that the defendant was given his Miranda rights where the record unequivocally established a straight, short, and unbroken line from the defendant's arrest to his confession. People v. Santisteven, 693 P.2d 1008 (Colo. App. 1984).

Other factors in determining whether a confession is obtained by exploitation of an illegal arrest: The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct. People v. Lewis, 975 P.2d 160 (Colo. 1999).

Statements made by a prisoner who is accompanied to a telephone by jailhouse personnel should not be suppressed because such a prisoner does not have a reasonable expectation of privacy in his telephone communications. People v. Smith, 716 P.2d 1115 (Colo. 1986).

Statements by defendant while undergoing an unconstitutional blood draw should not be suppressed. Defendant failed to establish a causal connection between the illegality of the warrantless blood draws and the challenged statements. People v. Archuleta, 2 017 COA 9, 411 P.3d 2 33.

Contents of package seized from detainee's coat pocket, which was discovered during initial pat-down search of defendant after decision was made to take him into civil protective custody due to his intoxication, was not admissible against him where after package was confiscated and identified as probable weapon, limited objectives of warrantless search had fully been accomplished and police were not justified in additional intrusion into defendant's privacy interest to support warrantless search of seized package. People v. Dandrea, 736 P.2d 1211 (Colo. 1987).

Exclusionary rule applies to the warrantless search of a passenger compartment of an automobile if the search goes beyond what is necessary to determine whether a suspect is armed. People v. Corpany, 859 P.2d 865 (Colo. 1993).

Defendant forfeited any expectation of privacy by delivery of unprocessed film to processor and government's delivery of the prints to the defendant and their recovery under a valid search warrant does not constitute an unreasonable search. People v. Atencio, 780 P.2d 46 (Colo. App. 1989), cert. denied, 790 P.2d 796 (Colo. 1990).

Evidence must be suppressed where officers elected to enter the backyard, walk to a garden and seize marijuana plants, all without first obtaining a warrant judicially authorizing such conduct, and where the defendant was not present on the property and aware police officers were also present. Hoffman v. People, 780 P.2d 471 (Colo. 1989).

Evidence of methamphetamine production seized from defendants' residence required to be suppressed where officer who executed search of residence relied on search warrant based upon affidavit containing his own false and recklessly made statements and other valid information in the affidavit was insufficient to support the finding of probable cause necessary for the issuance of a valid search warrant. People v. Kazmierski, 25 P.3d 1207 (Colo. 2001).

Evidence must be suppressed where there was probable cause but no exigent circumstances to justify a warrantless search. People v. Baker, 813 P.2d 331 (Colo. 1991), distinguished in that police did not inform anyone they detected the smell of iodine and there was no attempt to prevent officers from entering residence. People v. Winpigler, 8 P.3d 439 (Colo. 1999).

Emergency aid exception is an exception to both the warrant requirement and the usual probable cause requirement. To justify a warrantless search under the emergency aid exception, though police do not have to have probable cause to believe that contraband or other evidence of criminal activity is located at a particular place, police must have a reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Police officer's conclusion that it was "within the realm of possibility" that someone was injured or hurt inside the home was insufficient as police must have more than a theoretical validation for their actions. People v. Hebert, 46 P.3d 473 (Colo. 2002).

Under the emergency aid exception, the prosecution must prove both that an immediate crisis existed and the probability that assistance would be helpful. It does not require probable cause, but the police must have a reasonable basis approximating probable cause that associates the emergency with the area to be searched. People v. Allison, 86 P.3d 421 (Colo. 2004).

Emergency aid exception justifies warrantless search when officers' main purpose is to render aid to victim, not search for evidence. Exception applies where prudent and trained police officers determine that an immediate crisis exists and that there is a probability their emergency assistance will prove helpful. People v. Souva, 141 P.3d 845 (Colo. App. 2005).

Trial court's suppression of evidence proper where warrantless entry by police into defendant's home was not justified under the medical emergency exception. There was no immediate crisis, objectively examined by a prudent and trained police officer, when defendant passed out for a few seconds at his door but immediately regained consciousness. People v. Smith, 40 P.3d 1287 (Colo. 2002).

Investigatory stop of defendant, who was passenger in car outside of drug suspect's house, was not based on reasonable suspicion of police officers and, therefore, subsequent arrest of defendant and search incident to arrest was illegal and all evidence obtained as result of arrest and search constitutes fruit of the poisonous tree. People v. Carillo-Montes, 796 P.2d 970 (Colo. 1990).

Arresting officers lacked probable cause to support a warrantless search of defendant's vehicle or justification for a search incident to his arrest, as that doctrine was subsequently clarified in Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009). Being stopped for a traffic infraction immediately after leaving a suspect import store and being in possession of a recently purchased and still unwrapped and unused "pot pipe", although sufficient to justify an arrest for possession of drug paraphernalia, is nevertheless insufficient to provide reasonable, articulable suspicion that additional evidence of that offense might be found in the arrestee's vehicle. People v. McCarty, 229 P.3d 1041 (Colo. 2010).

Police lacked probable cause to search trunk of vehicle incident to arrest of driver. The nervousness of an underage driver coupled with the driver's unlawful possession of a single prescription pill is not enough to elevate suspicion to a fair probability that more contraband would be found in the vehicle. People v. Coates, 266 P.3d 397 (Colo. 2011).

Although police officer was justified in making investigatory stop, evidence seized was properly suppressed as search exceeded limits of permissible protective search for weapons. People v. Martinez, 801 P.2d 542 (Colo. 1990).

In order for an investigatory stop to be constitutionally valid, three prerequisites must be met: (1) There must be an articulable and specific basis in fact for suspecting that criminal activity has taken place, is in progress, or is about to occur; (2) the purpose of the intrusion must be reasonable; and (3) the scope and character of the intrusion must be reasonably related to its purpose. People v. Rodriguez, 849 P.2d 799 (Colo. App. 1992); People v. Dowhan, 951 P.2d 905 (Colo. 1998); People v. Salazar, 964 P.2d 502 (Colo. 1998); People v. Dixon, 21 P.3d 440 (Colo. App. 2000).

And the existence of the three prerequisites to a valid investigatory stop must be judged against an objective standard that takes into consideration the facts and circumstances known to the officer at the time of the intrusion and evaluates the scope of the intrusion in light of those facts. People v. Dixon, 21 P.3d 440 (Colo. App. 2000).

Observations of peace officer and the information known to him immediately prior to investigatory stop of defendant provided officer with reasonable suspicion that defendant had engaged, or was about to engage, in a criminal act where officer had received an anonymous tip that there was suspected drug activity at a site known for prior drug transactions and where such tip was corroborated by the officer's own observations. People v. Canton, 951 P.2d 907 (Colo. 1998).

An objective standard is used in determining whether there was reasonable suspicion necessary for the investigatory stop. In determining whether reasonable suspicion exists, we must look to the totality of the circumstances. The facts known to the officers immediately prior to the intrusion are of critical importance. People v. Rodriguez, 849 P.2d 799 (Colo. App. 1992).

The scope and character of an investigatory stop are therefore matters to be determined by objective criteria and not merely the subjective intent or focus of the officer executing the stop. People v. Ball, 2017 CO 108, 407 P.3d 580.

When the purpose for which an investigatory stop was instituted has been accomplished and no other reasonable suspicion exists to support further investigation, there is no justification for continued detention and interrogation of citizens. People v. Redinger, 906 P.2d 81 (Colo. 1995); People v. Mason, 2013 CO 32, 310 P.3d 1003.

Where there are dual purposes for an arrest and search, the trial court must determine whether the purpose of the arrest is a mere pretext intended to validate an otherwise invalid search. Where the officer had information that drugs were located in the defendant's trunk and the officer found the drugs after arresting the defendant on a traffic stop and conducting an inventory search of the car, the trial court was required to determine whether the arrest and resulting inventory search were a pretext for conducting an investigatory search. People v. Hauseman, 900 P.2d 74 (Colo. 1995) (interpreting the fourth amendment to the U.S. Constitution).

There is no consensual encounter where a reasonable person under the circumstances would not have believed he or she was free to leave or to disregard the officer's requests. A seizure occurred without facts justifying reasonable suspicion of a person having committed a crime. People v. Heilman, 52 P.3d 224 (Colo. 2002).

Defendant's "furtive gesture" was too ambiguous to constitute the basis for an investigatory stop and prosecution did not carry the burden that the evidence was not the fruit of the prior illegality. People v. Heilman, 52 P.3d 224 (Colo. 2002).

The standard that applies to a dog sniff search of the exterior of a vehicle is reasonable suspicion. Being parked for fifteen minutes outside a house in which illegal drugs had been found seven weeks before and having a passenger in the vehicle who had used methamphetamine at some point in the past did not raise a reasonable suspicion that evidence of illegal activity would be found in the vehicle. Therefore, the police officer did not have reasonable suspicion to subject defendant's vehicle to a dog sniff search. People v. McKnight, 2 017 COA 93, 45 2 P.3d 82, aff'd, 2019 CO 36, 446 P.3d 397.

There was no articulable and specific basis in fact to support a reasonable suspicion of criminal conduct where an anonymous tip consisted of a physical description of a person and his clothing and a claim that the person stored cocaine in his shoe and the police officer corroborated only that a person matching the description given by the informant was present where the informant said he would be. People v. Salazar, 964 P.2d 502 (Colo. 1998).

Reasonable suspicion to justify seizing defendant did not exist when defendant was sitting in a public park with a bag and a backpack, and the officers were not aware of any crime having just occurred. That defendant was in an area where there had previously been criminal activity and defendant's action of walking away from police officers were not, by themselves or in combination, sufficient to create reasonable suspicion. People in Interest of K.D.W., 2 0 2 0 COA 110, 471 P.3d 1276.

Police officer may not lawfully detain a passenger who has exited from a vehicle that has stopped at its destination, when the driver of the vehicle has been contacted for minor traffic violations, and when the officer lacks reasonable suspicion to believe that the passenger is involved in criminal activity. People v. Dixon, 21 P.3d 440 (Colo. App. 2000).

I. GENERAL CONSIDERATION.

Law reviews. For article, "The C ase for Billboard C ontrol: Precedent and Prediction", see 36 Dicta 461 (1959). For article, "Constitutional Law", which discusses Tenth Circuit decisions dealing with retroactive legislation under due process clause, see 63 Den. U. L. Rev. 247 (1986). For article, "The DeWitt Test: Determining the Retroactivity of New Civil Legislation in Colorado", see 40 Colo. Law. 73 (July 2011).

Applied in McNichols v. Walton, 120 Colo. 269, 208 P.2d 1156 (1949); Jackson v. Colo., 294 F. Supp. 1065 (D. Colo. 1968); Wasson v. Hogenson, 196 Colo. 183, 583 P.2d 914 (1978); McClanahan v. Am. Gilsonite Co., 494 F. Supp. 1334 (D. Colo. 1980); Denver Urban Renewal Auth. v. Byrne, 618 P.2d 1374 (Colo. 1980); First Lutheran Mission v. Dept. of Rev., 44 Colo. App. 417, 613 P.2d 351 (1980); Sutphin v. Mourning, 642 P.2d 34 (Colo. App. 1981); Thirteenth St. Corp. v. A-1 Plumbing & Heating Co., 640 P.2d 1130 (Colo. 1982); Bellendir v. Kezer, 648 P.2d 645 (Colo. 1982); Kirby of Se. Denver, Inc. v. Indus. Comm'n, 732 P.2d 1232 (Colo. App. 1986).

II. EX POST FACTO LAWS.

Definition. Ex post facto laws are defined variously as: Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; every law that aggravates a crime, or makes it greater than it was, when committed; every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed; every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender. Myers v. District Court, 184 Colo. 81, 518 P.2d 836 (1974).

Implication of term "ex post facto". The term "ex post facto" necessarily implies a fact or act done, after which the law in question is passed. French v. Deane, 19 Colo. 504, 36 P. 609, 24 L.R.A. 387 (1894).

Ex post facto legislation is abhorred in criminal law because it stigmatizes with criminality an act entirely innocent when committed. Police Pension & Relief Bd. v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959).

This section applies solely to statutes which take away or impair a vested right. The provisions of this section prohibiting the passage of laws retrospective in operation apply solely to statutes which take away or impair a vested right acquired under existing laws, or which create a new obligation, impose a new duty, or attach a new disability in respect to transactions already passed. Vail v. Denver Bldg. & Constr. Trades Council, 108 Colo. 206, 115 P.2d 389 (1941); Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 197 Colo. 152, 590 P.2d 960 (1979); Gambler's Express v. Pub. Utils. Comm'n, 868 P.2d 405 (Colo. 1994).

Neither an affirmative enactment nor a repealing statute can be so construed under the state constitution as to retroact upon and impair or take away accrued rights, which by the authority of law, and in the manner pointed out by it, had been previously asserted. And especially is this true when such rights have been carried into judgment. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

And is aimed only at criminal cases. The prohibition against ex post facto laws is aimed at criminal cases, but it cannot be evaded by giving a civil form to that which in its nature is criminal. French v. Deane, 19 Colo. 504, 36 P. 609 (1894).

The phrase "ex post facto" applies only to criminal cases. French v. Deane, 19 Colo. 504, 36 P. 609 (1894); Wood v. Beatrice Foods Co., 813 P.2d 821 (Colo. App. 1991).

The phrase "ex post facto", as used in the constitution of the United States and this section, does not apply to civil laws. Such laws only are ex post facto as provide for the punishment of a party for acts antecedently done which were not punishable at all, or not punishable to the extent or in the manner prescribed. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

Two critical elements must be present for a criminal statute to be stricken down as an ex post facto law: It must be retrospective, and it must disadvantage the offender affected by it. People v. Billips, 652 P.2d 1060 (Colo. 1982).

Section 18-1.4-102 (8) violates prohibition on ex post facto laws. Allowing the supreme court to remand cases back for new penalty proceedings violates the ex post facto clause. Subjecting a defendant, sentenced under an unconstitutional death penalty statute, to a new penalty hearing in front of a jury is ex post facto because of the statutory dictate of a life sentence in § 18-1.3-401 (5) and because the defendants in these cases were identifiable targets of the legislation. People v. Woldt, 64 P.3d 256 (Colo. 2003).

Statute is not ex post facto where it does not enlarge the punishment to which the accused was liable when his crime was committed, nor make any act involved in his offense criminal that was not criminal at the time he committed the crime for which he was found guilty. People v. Bastardo, 646 P.2d 382 (Colo. 1982).

An inmate does not have a vested right in earned time, so the inmate's punishment is not increased by withholding earned time from the inmate for not participating in sex offender treatment. Reeves v. Colo. Dept. of Corr., 155 P.3d 648 (Colo. App. 2007).

Section 18-3-405 (2)(c) was possibly applied ex post facto, therefore, enhancement portion of conviction is reversed where several assaults occurred before this law was enacted, the verdict could have been based on an act that preceded the law's enactment, and the jury was not instructed that the conviction had to be based on an act that occurred after the law's passage. People v. Graham, 876 P.2d 68 (Colo. App. 1994).

Statutory provision tolling the expiration of parole upon the filing of a parole violation complaint does not violate prohibition against ex post facto laws. Goetz v. Gunter, 830 P.2d 1154 (Colo. App. 1992).

The ex post facto clause of the Colorado Constitution operates primarily to prohibit the retroactive application of legislative changes which make previously lawful behavior a criminal offense or which enhance criminal penalties and, by its own terms, said clause does not apply to the judicial branch of the government. The Colorado supreme court's amendment of C.R.C.P. 24(f), which previously required jurors in a capital case to be sequestered, allowed the trial court to determine in its discretion whether to sequester the jurors in a criminal trial and such amendment did not violate the defendant's constitutional rights. People v. Benney, 757 P.2d 1078 (Colo. App. 1987); People v. Graham, 876 P.2d 68 (Colo. App. 1994).

Time at which offense committed governs ex post facto character of law. Whether a law is ex post facto or not relates, in criminal cases, to the time at which the offense charged was committed. If the law complained of was passed before the commission of the act with which the prisoner is charged, it cannot, as to that offense, be an ex post facto law. If passed after the commission of the offense, it is as to that ex post facto, though whether of the class forbidden by the constitution may depend on other matters. French v. Deane, 19 Colo. 504, 36 P. 609 (1894); Zaragoza v. Dept. of Rev., 702 P.2d 274 (Colo. 1985).

So far as the ex post facto character of a law depends on the time of its enactment, it has reference solely to the date at which the offense was committed to which the new law is sought to be applied. No other time or transaction but this has been in any adjudged case held to govern its ex post facto character. French v. Deane, 19 Colo. 504, 36 P. 609 (1894).

A statute is not rendered unconstitutional as an ex post facto law merely because it might operate on a fact or status preexisting the effective date of the legislation, as long as its punitive features apply only to acts committed after the statutory proscription becomes effective. People v. Billips, 652 P.2d 1060 (Colo. 1982); Gasper v. Gunter, 851 P.2d 912 (Colo. 1993); People v. Graham, 876 P.2d 68 (Colo. App. 1994); Coal. for Equal Rights v. Owens, 458 F. Supp. 2d 1251 (D. Colo. 2006), aff'd on other grounds sub nom. Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir. 2008).

When defendant pleads guilty and the factual basis provided that defendant committed the acts both during a time period before and after a statute is effective, the defendant cannot claim an ex post facto violation. People v. Bobrik, 87 P.3d 865 (Colo. App. 2003).

This section operates, as to pending causes under a statute, as a saving clause incorporated into the repealing statute. Lundin v. Kansas P. R. R., 4 Colo. 433 (1878); Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

The ex post facto clause is violated when a statute punishes as a crime conduct which was innocent when done, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed. People v. District Court (Thomas), 834 P.2d 181 (Colo. 1992); People v. Aguayo, 840 P.2d 336 (Colo. 1992); People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

The test for determining whether a criminal law is ex post facto is twofold. First, it must be retrospective, that is, it must apply to events occurring before its enactment. Second, it must disadvantage the offender affected by it. In re R.B., 815 P.2d 999 (Colo. App. 1991); People v. Stewart, 926 P.2d 105 (Colo. App. 1996); People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

An ex post facto law is one which imposes punishment for an act which was not a crime when it was committed or which imposes additional punishment upon acts then proscribed. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).

The test for determining whether posting personal information on the internet about convicted sex offenders constitutes additional criminal punishment in violation of the ex post facto clause is the test contained in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1966). The seven factors are: (1) Whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment--retribution and deterrence; (5) whether the behavior to which it apples is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. People v. Stead, 66 P.3d 117 (Colo. App. 2002).

"Punishment" as referred to in case law discussing ex post facto laws is broader than an increase in the sentence. Punishment in the instant case was increased retrospectively when petitioner was denied the automatic entry of an order limiting access to records relating to the charge against her because of amendment of the statute limiting access after her crime was committed. In re R.B., 815 P.2d 999 (Colo. App. 1991).

Requirement that prisoner participate in sex offender treatment program does not violate ex post facto clause even though program did not exist when prisoner was sentenced since participation in the program is a privilege and does not constitute additional punishment. White v. People, 866 P.2d 1371 (Colo. 1994).

Requirement that offender register as a sex offender does not violate ex post facto clause, because the registration requirement is intended to assist law enforcement officials in investigating future sex crimes and to protect the public safety. As such, it is remedial, not punitive, and does not unconstitutionally enhance the offender's punishment. Jamison v. People, 988 P.2d 177 (Colo. App. 1999).

Since sex offender registration is not punitive, requiring an offender who plead not guilty by reason of insanity to register as a sex offender upon his or her conditional release does not violate the principles of ex post facto. People v. Durapau, 12 COA 67, 280 P.3d 42.

There is no ex post facto violation when a current qualifying sexually violent predator offense was not a qualifying offense at the time it was committed. Since sexually violent predator status is not punishment, there is no constitutional violation. People v. Mendoza, 313 P.3d 637 (Colo. App. 2011).

Drug offender surcharge created in § 18-19-103 is properly characterized as a punishment rather than as a nonpunitive, compensatory payment. As such, the surcharge is appropriately scrutinized against constitutional provisions prohibiting ex post facto legislation. People v. Stead, 845 P.2d 1156 (Colo. 1993).

Imposition of drug offender surcharge violated prohibition against ex post facto laws where defendant committed offenses before effective date of statute; retroactive application of the statute would make punishment for defendant's crime more onerous after its commission. People v. Stead, 845 P.2d 1156 (Colo. 1993); People v. Ellington, 854 P.2d 223 (Colo. 1993); People v. Brown, 854 P.2d 228 (Colo. 1993); People v. Stead, 854 P.2d 229 (Colo. 1993).

No ex post facto violation where the amount of restitution did not change. Application of new restitution statute changing to whom the payments would be applied did not violate ex post facto clause. The amount of restitution did not change; the court was authorized to order full restitution under either version of the statute. People v. Woodward, 11 P.3d 1090 (Colo. 2000).

For purpose of ex post facto analysis, the court looks to the law annexed to an offense on the date when the defendant is charged with committing the offense at issue. People v. Henry, 845 P.2d 1160 (Colo. 1993).

Extension of statute of limitations. The legislature may extend the statute of limitations for prosecutions not already time-barred as of the effective date of the extension without violating this section, but there should be a clear legislative statement that that was the intent. People v. Holland, 708 P.2d 119 (Colo. 1985).

Thus, legislation that extends the statute of limitations for a particular crime cannot be retroactively applied to revive a previously barred prosecution. People v. Shedd, 702 P.2d 267 (Colo. 1985).

Unless harsh or oppressive, a statute which changes the rules of evidence after the occurrence of an offense so that previously inadmissible evidence is admissible is not an ex post facto law. People v. Koon, 724 P.2d 1367 (Colo. App. 1986).

Judicial ex post facto is based not on this section, which applies only to legislative acts, but on due process principles. Aue v. Diesslin, 798 P.2d 436 (Colo. 1990); Campbell v. Solano, 807 P.2d 583 (Colo. 1991).

And retroactive application of a parole board's reinterpretation of a statute, where the reinterpretation of the ambiguous statutory language was foreseeable, did not result in a violation of the ex post facto clause or the due process requirements. Lustgarden v. Gunter, 779 F. Supp. 500 (D. Colo. 1991).

Although the prohibitions against ex post facto laws are limitations on the power of the legislature and generally are not construed as being applicable to judicial decisions, such decisions may nevertheless have the effect of ex post facto legislation and, thus, may be found to violate a defendant's rights to due process. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).

Colorado will follow the United States supreme court case of Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L. Ed. 648 (1798), to determine if there has been a violation of the ex post facto clause. Accordingly, a violation will be found to exist whenever a statute punishes conduct as a crime which conduct was innocent when committed, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed. People v. District Court, 834 P.2d 181 (Colo. 1992).

Legislative changes made to language that had been held to be unconstitutional were ameliorative. In fact, the defendant benefitted from the change because it added the possibility that he could receive parole. The court held that the application of this type of change was incapable of violating the ex post facto clause. People v. District Court, 834 P.2d 181 (Colo. 1992).

The fact that the legislature, in reenacting a provision of law, diverts from a more detailed definition does not mean there has been a detrimental change. Not all changes provide grounds for finding that the new language violates the ex post facto clause. People v. District Court, 834 P.2d 181 (Colo. 1992).

Statutory provisions requiring a single trial on sanity and guilt and setting forth procedures after acceptance of a plea of not guilty by reason of insanity, adopted in 1996 to "clarify" statutory provisions enacted in 1995, do not violate constitutional proscription against ex post facto laws. People v. Bielecki, 964 P.2d 598 (Colo. App. 1998).

Applied in Titus v. Titus, 96 Colo. 191, 41 P.2d 244 (1935); White v. District Court, 180 Colo. 152, 503 P.2d 342 (1972); Union P. R. R. v. Heckers, 181 Colo. 374, 509 P.2d 1255 (1973); Carlson v. McCoy, 193 Colo. 391, 566 P.2d 1073 (1977); Perl-Mack Enters. Co. v. City & County of Denver, 194 Colo. 4, 568 P.2d 468 (1977); Estate of Barnhart v. Burkhardt, 38 Colo. App. 544, 563 P.2d 972 (1977); Hammer v. Real Estate Comm'n, 40 Colo. App. 260, 576 P.2d 191 (1977).

III. IMPAIRMENT OF OBLIGATION OF CONTRACTS.

Law reviews. For article, "One Year Review of Contracts", see 37 Dicta 1 (1960).

This section protects vested contract rights from impairment. Police Pension & Relief Bd. v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959).

And protects equally from violation the contracts of states with those entered into between private individuals. Hessick v. Moynihan, 83 Colo. 43, 262 P. 907 (1927).

Only vested contractual rights are protected from statutory impairment. Spradling v. Colo. Dept. of Rev., 870 P.2d 521 (Colo. App. 1993).

This section protects a "contract" as the word is used in its ordinary meaning. Klipping v. McCauley, 143 Colo. 444, 354 P.2d 167 (1960).

Nothing in the language of former § 13-30-103 (1)(k)(I) indicates or implies that the county court judge salary calculation formula was contractual in nature. Because the plaintiff had no vested contractual right to be paid according to the formula set forth in former § 13-30-103, he did not have a right or interest protected by this section of the constitution. Alderton v. State of Colo., 17 P.3d 817 (Colo. App. 2000).

Section does not render unconstitutional employment security statute as an impairment to obligation of contracts between operator and drivers of concrete delivery trucks. Weitzel Redi-mix, Inc. v. Indus. Comm'n, 728 P.2d 364 (Colo. App. 1986).

Contract must be valid in its inception. In order to come within the scope of this section, a contract must be valid in its inception. Klipping v. McCauley, 143 Colo. 444, 354 P.2d 167 (1960).

And lawfully entered into. This section extends only to contracts lawfully entered into. Klipping v. McCauley, 143 Colo. 444, 354 P.2d 167 (1960).

Section does not apply to acts validating contracts theretofore made on behalf of state. Miller v. Limon Nat'l Bank, 88 Colo. 373, 296 P. 796 (1931); Farnik v. Bd. of County Comm'rs, 139 Colo. 481, 341 P.2d 467 (1959).

State may make laws for the enforcement of existing contracts, curing defects in remedies, confirming rights already existing or adding to the means of securing and enforcing them. Titus v. Titus, 96 Colo. 191, 41 P.2d 244 (1935).

Legislative changes can apply only to conditions in future. The permissible changes, amendments and alterations provided for by the general assembly can apply only to conditions in the future, and never to the past; according to the cardinal principle of justice and fair dealings between government and man, as well as between man and man, the parties shall know prior to entering into a business relationship the conditions which shall govern that relationship. Police Pension & Relief Bd. v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959).

A pension has the attributes of a contract. Police Pension & Relief Bd. v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959).

And is therefore entitled to constitutional protection where it is a contributory pension system. Police Pension & Relief Bd. v. McPhail, 139 Colo. 330, 338 P.2d 694 (1959).

Rights which accrue under a pension plan are contractual obligations which are protected under this section and art. I, § 10, of the United States Constitution. Pension plans promote important public policy considerations because they are structured to reward efficiency, to encourage officers to remain in the service, and to give assurance of a decent living upon retirement. Colo. Springs Fire Fighters v. Colo. Springs, 784 P.2d 766 (Colo. 1989).

The public employee's retirement association (PERA) and the Policemen's and Firemen's Pension Reform Act statutory provisions have established a defined benefit contributory pension system in which most public employees are required to participate. By making these contributions, employees obtain a limited vesting of pension rights, which ripen into vested pension rights upon attainment of the respective eligibility requirements. Colo. Springs Fire Fighters v. Colo. Springs, 784 P.2d 766 (Colo. 1989).

The modern contract clause balancing test first applied in In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002), applies to the issue of whether PERA members have a contractual right to a specific cost of living adjustment (COLA), overruling any implication in Police Pension & Relief Bd. v McPhail, 139 Colo. 330, 338 P.2d 694 (1959), and in Police Pension & Relief Bd. v. Bills, 148 Colo. 383, 366 P.2d 581 (1961), that pension legislation is not subject to the presumption that the legislature does not intend to bind itself contractually and does not intend to create a contractual right unless the legislature provides a clear indication of its intent to be bound. Neither McPhail nor Bills examined the decisive question of whether the legislature intended to contract. Thus, the extent to which McPhail and Bills are applicable to modern contract clause inquiries is limited. Justus v. People, 2014 CO 75, 336 P.3d 202.

PERA legislation providing for COLAs does not establish any contract between PERA and its members entitling them to perpetual receipt of the specific COLA formula in place on the date each became eligible to retirement or on the date each actually retires. There is no contractual or durational language stating or suggesting clear legislative intent to bind itself, in perpetuity, to paying PERA members a specific COLA formula. Justus v. People, 2014 CO 75, 336 P.3d 202.

Because the PERA legislation providing for a COLA does not establish any contract between PERA and its members entitling them to a COLA, the first prong of the applicable three-part contract clause analysis first applied in In re Estate of DeWitt is not satisfied. Justus v. People, 2014 CO 75, 336 P.3d 202.

The general assembly's latest modification of the COLA for retirees of PERA is consistent with the PERA legislation's historical base pension benefit and changeable COLA structure. Senate Bill 10-1001's reformulation did not violate the contract clauses of the Colorado or United States Constitutions. Justus v. People, 2014 CO 75, 336 P.3d 202.

Health plan benefits provided for by city were not pension benefits which were subject to vesting where a consistent pattern emerged upon consideration of the Colorado statutory scheme addressing pension benefits, the attributes of the Colorado Springs ordinance, and the Employee Retirement Income Security Act of 1974 (ERISA) provisions. Colo. Springs Fire Fighters v. Colo. Springs, 784 P.2d 766 (1989).

Circumstances surrounding the adoption of a city ordinance and the restrictions imposed by the city charter, established that the council did not intend to create a pension type benefit or a contract when it adopted measure. Instead, the council acted within the bounds of its authority and enacted an employee benefit provision, which was to remain in effect until the council, in the exercise of its discretionary legislative powers, elected to modify it. Colo. Springs Fire Fighters v. Colo. Springs, 784 P.2d 766 (Colo. 1989).

Firemen's pension act does not impair the obligation of contracts of employment in violation of this section. Huff v. Mayor of Colo. Springs, 182 Colo. 108, 512 P.2d 632 (1973).

Frustration of pre-annexation agreement was not impairment of a contract and provisions of §§ 31-12-118.5 and 31-12-118 (2)(b) that provide for abeyance of pending annexation proceedings upon the filing of a petition for incorporation when specified criteria are met does not violate this section. Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000).

A marriage is not a "contract" within meaning of contract clause. In re Franks, 189 Colo. 499, 542 P.2d 845 (1975), cert. denied, 423 U.S. 1043, 96 S. Ct. 766, 46 L. Ed. 2d 632 (1976).

Where contract and lease do not provide an explicit exemption from the Denver facilities development admissions tax, the claim that the ordinance imposing such tax impairs the obligation of contracts is invalid. Denver Center for Performing Arts v. Briggs, 696 P.2d 299 (Colo. 1985).

The application of the amended Colorado exemption limits set forth in § 13-54-102 to a loan and security agreement that was entered into prior to the enactment of the amended exemption statute does not violate the respective "contracts" clauses of the United States and Colorado Constitutions. In re Larsen, 260 B.R. 174 (Bankr. D. Colo. 2001).

Retroactive application of § 10-4-110.8 (12) to the contractual limitations clause in a homeowner's insurance policy, where homeowner's cause of action had not been contractually barred by May 10, 2013, does not violate the contract clause of either the state or federal constitution. Schniedwind v. Am. Family Mut. Ins. Co., 157 F. Supp. 3d 944 (D. Colo. 2016).

The language of § 10-4-110.8 (12)(a) confirms that the legislature intended that the statute apply retroactively. In clarifying that § 10-4-110.8 (12) did not revive any cause of action already barred by contract and that it applies only to causes of action not barred by contract as of May 10, 2013, the legislature intended that the statute apply to homeowner's insurance policies that predated the Homeowner's Insurance Reform Act of 2013, but whose contractual limitations period had not yet expired. Schniedwind v. Am. Family Mut. Ins. Co., 157 F. Supp. 3d 944 (D. Colo. 2016).

Amendment to § 2 .html#t4 2 a03p02s42-3-208" target="_blank">42-3-208 violated the contracts clauses of the federal and state constitutions. By expanding the class of persons eligible to receive special license plates covered by an existing contract between the state and the private organization benefited by issuance of the plates, the legislation violated this section and the contracts clause of the federal constitution. Raptor Educ. Found., Inc. v. State, 2012 COA 219, 296 P.3d 352.

Applied in Am. Smelting & Ref. Co. v. People ex rel. Lindsley, 204 U.S. 103, 27 S. Ct. 198, 51 L. Ed. 393 (1907); Colo. Farm & Live Stock Co. v. Beerbohm, 43 Colo. 464, 96 P. 443 (1908); Colo. & S. Ry. v. State R. R. Comm'n, 54 Colo. 64, 129 P. 506 (1912); City & County of Denver v. Stenger, 277 F. 865 (8th Cir. 1922); Driverless Car Co. v. Armstrong, 91 Colo. 334, 14 P.2d 1098 (1932); In re Special Assessments for Paving Dist. No. 3, 105 Colo. 158, 95 P.2d 806 (1939); People ex rel. Rogers v. Waterman's Estate, 108 Colo. 263, 116 P.2d 204 (1941); Bd. of Trustees of Firemen's Fund v. People ex rel. Behrman, 119 Colo. 301, 203 P.2d 490 (1949); Colo. Dept. of Pub. Health & Env't v. Bethell, 60 P.3d 779 (Colo. App. 2002); Sch. Dist. No. 1 v. Masters, 2018 CO 18, 413 P.3d 723.

IV. LAWS RETROSPECTIVE IN OPERATION.

This section prohibits the enactment of any law retrospective in its operation. Spangler v. Green, 21 Colo. 505, 42 P. 674 (1895); Colo. Fuel & Iron Corp. v. Indus. Comm'n, 148 Colo. 557, 367 P.2d 597 (1961); Taylor v. Pub. Employees' Retirement Ass'n, 189 Colo. 486, 542 P.2d 383 (1975); Stewart v. Pub. Employees' Retirement Ass'n, 43 Colo. App. 25, 612 P.2d 1141 (1979).

Prohibition applies to city council as well as to general assembly. The state constitution provides that no law retrospective in its operation shall be passed by the general assembly. What the general assembly cannot do at the state level in this connection, a city council cannot do in municipal affairs. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

The prohibition against retrospective laws applies to local governments. City of Golden v. Parker, 138 P.3d 285 (Colo. 2006).

Prohibition applies to Denver career service authority board career service rules because the promulgation of such rules is a legislative function delegated by the general assembly to the board. Abromeit v. Denver Career Serv. Bd., 140 P.3d 44 (Colo. App. 2005).

Section is for protection of rights of citizen, not state. Even though a law creates a pensionable status based on services wholly rendered prior to its enactment and in such sense might be considered retrospective in operation it would not offend against this section, for this section, apart of the bill of rights, is for the protection of the rights of the citizen and is not applicable to the state. Bedford v. White, 106 Colo. 439, 106 P.2d 469 (1940).

Prohibition of retrospective legislation parallels provision forbidding ex post facto laws. The purposes of the provisions are similar, viz., to prevent the unfairness entailed in altering the legal consequences of events or transactions after the fact. Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 197 Colo. 152, 590 P.2d 960 (1979).

The word "retrospective" as used in this section has reference to civil cases, and as to such cases it is synonymous with the term "ex post facto", as applied to the criminal law. French v. Deane, 19 Colo. 504, 36 P. 609, 24 L.R.A. 387 (1894).

The term "retrospective", used in this section, was intended to apply to laws which could not properly be said to be included in the description of ex post facto, or laws impairing the obligation of contracts. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

The term "retrospective", like the term "ex post facto", is a technical term, and that while the latter applies only to criminal cases, and to those only in a particular way, so the former technically applies only to civil cases, and to those only in a particular way; that if a statute in form affects the remedy only, yet substantially takes away accrued rights, it is unconstitutional and void. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

Law is applied retrospectively only when it takes away or impairs vested rights acquired under existing laws or creates a new obligation. Stewart v. Pub. Employees' Retirement Ass'n, 43 Colo. App. 25, 612 P.2d 1141 (1979); Bush v. Roche Constructors, Inc., 817 P.2d (Colo. App. 1991); Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993); Am. Comp. Ins. Co. v. McBride, 107 P.3d 973 (Colo. App. 2004).

It includes a statute which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878); French v. Deane, 19 Colo. 504, 36 P. 609, 24 L.R.A. 387 (1894); Day v. Madden, 9 Colo. App. 464, 48 P. 1053 (1897); Evans v. City of Denver, 26 Colo. 193, 57 P. 696 (1899); Perry v. City of Denver, 27 Colo. 93, 59 P. 747 (1899); Moore v. Chalmers-Galloway Live Stock Co., 90 Colo. 548, 10 P.2d 950 (1932); California Co. v. State, 141 Colo. 288, 348 P.2d 382 (1959), appeal dismissed, 364 U.S. 285, 81 S. Ct. 42, 5 L. Ed. 2d 37, reh'g denied, 364 U.S. 897, 81 S. Ct. 219, 5 L. Ed. 2d 191 (1960); Spiker v. City of Lakewood, 198 Colo. 528, 603 P.2d 130 (1979); Jefferson County Dept. of Soc. Servs. v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980); P-W Invs., Inc. v. City of Westminster, 655 P.2d 1365 (Colo. 1982); Martin v. Bd. of Assessment Appeals, 707 P.2d 348 (Colo. 1985); Ficarra v. Dept. of Reg. Agencies, 849 P.2d 6 (Colo. 1993).

Such as a law that changes ground of action or the nature of defense. The retrospectivity clause was intended to prohibit the making of any law prescribing new rules for the decision of existing causes so as to change the ground of the action or the nature of the defense. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878).

A vested right must be something more than a mere expectation based upon an anticipated continuance of existing law, and it must have become a title, legal or equitable, to the present or future enjoyment of property or a demand, or a legal exemption from a demand made by another. Ficarra v. Dept. of Reg. Agencies, 849 P.2d 6 (Colo. 1993); Nye v. Indus. Claim Appeals Office, 883 P.2d 607 (Colo. App. 1994); Am. Comp. Ins. Co. v. McBride, 107 P.3d 973 (Colo. App. 2004).

A vested right is one that is not dependent on the common law or statute but instead has an independent existence. Am. Comp. Ins. Co. v. McBride, 107 P.3d 973 (Colo. App. 2004).

Thus, procedure under old law governs if rights have accrued thereunder. Plaintiff was injured by falling on defendant's sidewalk, about 30 days prior to the new law going into effect, and, after said law had become effective, gave notice to the city of her alleged injuries in accordance with the requirements of the new act. It was held that such injury having been received prior to such law taking effect, plaintiff should have complied with the notice required by the the former law, and, upon her failure so to do, the city was not liable. City of Colo. Springs v. Neville, 42 Colo. 219, 93 P. 1096 (1908).

Expectations of parties to litigation are not vested rights and provisions of §§ 31-12-118.5 and 31-12-118 (2)(b) that provide for abeyance of pending annexation proceedings upon the filing of a petition for incorporation when specified criteria are met does not impair vested contractual rights or violate this section. Greenwood Vill. v. Petitioners for Proposed City of Centennial, 3 P.3d 427 (Colo. 2000).

In determining whether a retroactive statute impairs or destroys vested rights, the most important questions are whether: (1) The public interest is advanced or retarded; (2) the retroactive provision gives effect to or defeats the bona fide intentions or reasonable expectations of affected persons; or (3) the statute surprises persons who have long relied on a contrary state of law. Ficarra v. Dept. of Reg. Agencies, 849 P.2d 6 (Colo. 1993); In re Larsen, 260 B.R. 174 (Bankr. D. Colo. 2001).

However, there is no fixed formula that measures the content of all the circumstances under which a person is said to possess a vested right, rather, it is a term that sums up a judicial determination that the facts of the case render it inequitable that a state impede the person from taking certain action. Ficarra v. Dept. of Reg. Agencies, 849 P.2d 6 (Colo. 1993).

A retrospective test consists of two inquiries. First, the statute must either (1) impair a vested right or (2) create a new obligation, duty, or disability. If a statute impairs a vested right, the impairment must be balanced against the public interest in the statute. In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002); City of Golden v. Parker, 138 P.3d 285 (Colo. 2006).

All statutes shall be construed prospectively unless a contrary intention is clearly manifest. California Co. v. State, 141 Colo. 288, 348 P.2d 382 (1959), appeal dismissed, 364 U.S. 285, 81 S. Ct. 42, 5 L. Ed. 2d 37, reh'g denied, 364 U.S. 897, 81 S. Ct. 219, 5 L. Ed. 2d 191 (1960).

A statute will not be given retrospective operation, unless this clearly appears to have been the legislative purpose. British Am. Assurance Co. v. Colo. & S. Ry., 52 Colo. 589, 125 P. 508 (1912).

Standard applied in In re Estate of DeWitt, 54 P.3d 849 (Colo. 2002).

The rule is that if it be doubtful whether or not the law is intended to apply to past transactions, the doubt should be resolved against their inclusion. Bonfils v. Pub. Utils. Comm'n, 67 Colo. 563, 189 P. 775 (1920).

Past transactions are to be governed by the statutes in force when the causes of action arose; and if the new governing statute does not fix a time in which the actions are to become subject to the law, they are not to be affected by it by reason of its general terms. Bonfils v. Pub. Utils. Comm'n, 67 Colo. 563, 189 P. 775 (1920).

But retroactive application is permissible where change is procedural. Retroactive application is permissible where the change is procedural or remedial in nature. In re Colo. Mercantile Co., 299 F. Supp. 55 (D. Colo. 1969).

When a law merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure without regard to whether they accrued before or after such change of law and without regard to whether the suit has been instituted or not. Smith v. Putnam, 250 F. Supp. 1017 (D. Colo. 1965).

One exception to the constitutional and statutory prohibitions against retroactive legislation, the "substantive-procedural dichotomy", requires a primary characterization of the statute in question as one either "substantive", i.e. creating, destroying, altering vested rights or liabilities, or "procedural", i.e. relating only to remedies or modes of procedure to enforce such rights or liabilities. "Substantive statutes" are resticted to prospective operation only, whereas "procedural" or "remedial" statutes are permitted retrospective application. Smith v. Putnam, 250 F. Supp. 1017 (D. Colo. 1965).

Application of a statute to a subsisting claim for relief does not violate the prohibition of retroactive legislation where the statute effects a change that is only procedural or remedial in nature. Cont'l Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982); Bingo Games Supply Co., Inc. v. Meyer, 895 P.2d 1125 (Colo. App. 1995).

Application of a statute is not rendered retroactive and unlawful merely because the facts upon which it operates occurred before adoption of the statute. Cont'l Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982).

Application of the 1979 amendments to § 13-21-101 does not violate this section. Therefore, plaintiff entitled to interest on damages from date of accident even though it occurred prior to effective date of the amendments. Meller v. Heil Co., 745 F.2d 1297 (10th Cir.), cert. denied, 467 U.S. 1206, 104 S. Ct. 1297, 81 L. Ed. 2d 347 (1984).

The legislature may legitimately provide that the revocation of a license to drive be triggered by the last in a series of offenses without offending the proscription against retrospective legislation. Zaragoza v. Dept. of Rev., 702 P.2d 274 (Colo. 1985).

Changes in procedural law operate retrospectively unless contrary legislative intent is expressed and statutes governing forum for judicial review are procedural. Davis v. Bd. of Psychologist Exam'rs, 791 P.2d 1198 (Colo. App. 1989).

There are no vested rights to invoke certain procedures under statutes governing initiative process and the court may apply subsequently adopted procedures. Comm. For Better Health Care v. Meyer, 830 P.2d 884 (Colo. 1992).

Retroactive application of amended career service rules that eliminated the right of employees to appeal pay grade classifications is not unconstitutionally retrospective. The right to such an appeal is procedural and remedial only and is not a vested right. Abromeit v. Denver Career Serv. Bd., 140 P.3d 44 (Colo. App. 2005).

However, where there are substantive amendments relating to claims for workers' compensation benefits, such amendments do not have any retrospective effect. Neodata Serv. v. Indus. Claim Appeals Office, 805 P.2d 1180 (Colo. App. 1991).

Changes to personnel handbook dealing with priority of layoffs and relocation within the institution constituted substantive changes and were therefore unconstitutionally retrospective. Although an employer reserves the right to modify its employment handbook, there are limits if the modifications constitute changes that affect employees retrospectively and substantively. Saxe v. Bd. of Trs. of Metro. State Coll., 179 P.3d 67 (Colo. App. 2007).

Changes to personnel handbook dealing with standards, access to information, and written explanation of termination decisions, however, constituted mere procedural changes and were therefore constitutional even though retrospective. Saxe v. Bd. of Trs. of Metro. State Coll., 179 P.3d 67 (Colo. App. 2007).

The general assembly's legislative powers include enacting generic legislation that clarifies and resolves preexisting issues and applies that resolution to pending cases and controversies. In re Balanson, 107 P.3d 1037 (Colo. App. 2004).

There is no vested right in remedies. The abolition of an old remedy, or the substitution of a new one, neither constitutes the impairment of a vested right nor the imposition of a new duty, for there is no such thing as a vested right in remedies. Moore v. Chalmers-Galloway Live Stock Co., 90 Colo. 548, 10 P.2d 950 (1932); Jefferson County Dept. of Soc. Servs. v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980); Cont'l Title Co. v. District Court, 645 P.2d 1310 (Colo. 1982); Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993).

Thus, changes in the mode of trial which do not deprive an accused of a defense and which operate only in a limited and unsubstantial manner to his disadvantage are not prohibited by the constitution although adopted after the offense is committed. Kolkman v. People, 89 Colo. 8, 300 P. 575 (1931).

Since there is no vested rights in remedies, § 37-45-153 validating water conservancy districts does not violate this section. Taxpayers for Animas-La Plata v. Animas-La Plata, 739 F.2d 1472 (10th Cir. 1984).

Rights to the benefit of particular procedures or remedial measures do not constitute vested rights. Comm. for Better Health Care v. Meyer, 830 P.2d 884 (Colo. 1992).

The statute of limitations may be changed by an extension of the time, or by an entire repeal, and affect existing causes of action, which by the existing law would soon be barred. In such cases the right of action is perfect, and no right of defense has accrued from the time already elapsed. But if a right has become vested and perfect, a law, which afterward annuls or takes it away, is retrospective. Denver S. P. & P. R. R. v. Woodward, 4 Colo. 162 (1878); Jefferson County Dept. of Soc. Servs. v. D.A.G., 199 Colo. 315, 607 P.2d 1004 (1980).

Section 10-4-110.8 (12)'s applicability to expired insurance policies does not violate the prohibitions on ex post facto laws and laws impairing the obligations of contracts. Schniedwind v. Am. Family Mut. Ins. Co., 157 F. Supp. 3d 944 (D. Colo. 2016).

Homeowner's insurance policy's one-year time period for lawsuits is not a vested contract right that could not constitutionally be abrogated. Because limitations periods are inherently the province of the legislature, an insurance company cannot claim a vested right to its ability to contractually shorten the applicable limitations period. Because the company's contractual expectation relied on the continued validity of common law in an area within traditional legislative power, the company has no vested right in the policy's contractual limitations period. Schniedwind v. Am. Family Mut. Ins. Co., 157 F. Supp. 3d 944 (D. Colo. 2016).

When statutory amendment not retroactive. An amendment to a statute is not retroactively applied if the amendment covers the same subject matter as the original statute and if the person or persons claiming under the amendment had a continuing status under both the original statute and the amendment. Taylor v. Pub. Employees' Retirement Ass'n, 189 Colo. 486, 542 P.2d 383 (1975).

An amended statute, applied to a factual situation which occurred prior to the enactment of the amendment, is not retroactively applied where the act which triggered application of the amended statute occurred after the effective date of the amendment. Nix v. Tice, 44 Colo. App. 42, 607 P.2d 399 (1980).

In public utilities commission (PUC) action. The fact that there was some lag between a request for a rate increase by a utility and the PUC's decision does not render the commission's action retrospective within the meaning of this section. Peoples Natural Gas Div. v. Pub. Utils. Comm'n, 197 Colo. 152, 590 P.2d 960 (1979).

Retroactive application of enhanced civil remedies in remedial legislation is permissible. Treble-damages provision of Colorado Consumer Protection Act could be applied where health club had violated substantive provisions of act prior to amendment of remedies section, since amendment did not impose new duties on health clubs in relation to their customers. Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993).

No vested right to continue act prohibited under new law where provision of new law is no more restrictive than prohibition contained in regulations promulgated under the former law. Nat'l Adver. Co. v. Dept. of Hwys., 718 P.2d 1038 (Colo. 1986).

A landowner cannot become vested with a right to have property remain outside a local political subdivision of the state. The state's power over the boundaries of subdivisions is plenary. Jefferson Ctr. Metro. Dist. No. 1 v. N. Jeffco Metro. Recreation & Park Dist., 844 P.2d 1321 (Colo. App. 1992).

Inchoate water rights are not vested rights, and thus may be validly affected by legislation. Chatfield E. Well Co. v. Chatfield E. Prop. Owners Ass'n, 956 P.2d 1260 (Colo. 1998).

Where the operative occurrence happened seven years after the adoption of the statute, there was no retrospective legislation. The rezoning of agricultural land was the operative occurrence. Jefferson Ctr. Metro. Dist. No. 1 v. N. Jeffco Metro. Recreation & Park Dist., 844 P.2d 1321 (Colo. App. 1992).

There is no vested right in public employees to engage in "moonlighting" activities. Himelgrin v. City & County of Denver, 717 P.2d 1006 (Colo. App. 1986).

City permit as foundation for vested right. A city permit can provide the foundation for a vested right, and thus be constitutionally protected from impairment by subsequent legislation, if the permit holder takes steps in reliance upon the permit. P-W Invs., Inc. v. City of Westminster, 655 P.2d 1365 (Colo. 1982).

Retired judge entitled to increased benefits. Judge who retired prior to effective date of 1977 amendment to § 24-51-607 (2)(a) (increasing pension benefit for judges with more than five and less than ten years service) is entitled to increased benefits from the effective date of the amendment, and the increase is not a retroactive application of the amendment. Stewart v. Pub. Employees' Retirement Ass'n, 43 Colo. App. 25, 612 P.2d 1141 (1979).

Ratemaking by the PUC is subject to the prohibition against retrospective legislation. Mtn. States Tel. & Tel. Co. v. Pub. Utils. Comm'n, 180 Colo. 74, 502 P.2d 945 (1972); Office of Consumer Counsel v. Pub. Serv. Co., 877 P.2d 867 (Colo. 1994).

The PUC's award of attorney fees is quasi-judicial not quasi-legislative; therefore, the award is not subject to the prohibition against retrospective legislation. Lake Durango Water Co. v. Pub. Utils. Comm'n, 67 P.3d 12 (Colo. 2003).

State interest in preserving finality of criminal convictions subject to constitutional limitations. Even though the Colorado criminal code grants a convicted offender the right to seek collateral review of a constitutionally flawed conviction (§ 18-1-410), the effect of § 16-5-402 (1) is to immediately cut off this right for all persons whose convictions antedate the statute by an interval of time in excess of the statutory limitation period. Such retrospective elimination of an existing statutory right, which the general assembly itself has recognized as a matter of "substantive right" included "within the concept of due process of law", cannot be squared with the constitutional prohibition against retrospectively depriving a person of a statutory right without due process of law. People v. Germany, 674 P.2d 345 (Colo. 1983).

Public records law providing for sealing of criminal records did not create a vested right to such sealing. Thus, repeal of a portion of the public records law took away respondent's unexercised opportunity to seek relief under the statute and denying respondent's request for such sealing made after repeal of the statute did not violate this section. People v. D.K.B., 843 P.2d 1326 (Colo. 1993).

Property assessment by methods used in prior years not a vested right. Property owners have no vested right to have their taxable property assessed by particular methods employed in prior years. Martin v. Bd. of Assessment Appeals, 707 P. 2 d 348 ( C olo. 1985); Estate of Petteys v. Farmers State Bank of Brush, 2 016 C OA 34, 381 P.3d 386.

Safety code. Application of a safety code to buildings that were constructed in a different period under different code requirements does not constitute unconstitutional retrospective legislation. Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990).

Tenure is a constitutionally protected interest. The Teacher Tenure Act creates a contract between the board and its teachers, and tenure rises to the level of a constitutionally protected interest. As such, it is a vested and substantive right which cannot be impaired by the retrospective application of a statute. Lockhart v. Arapahoe County Sch. Dist. No. 6, 735 P.2d 913 (Colo. App. 1986).

Workers' compensation benefits are not a constitutionally protected interest. Statutory benefits created or allowed under the workers' compensation scheme exist only to the extent allowed and intended by applicable statutes, and legislation prospectively limiting or rescinding benefits does not deprive persons of constitutionally protected property interests. Nye v. Indus. Claim Appeals Office, 883 P.2d 607 (Colo. App. 1994).

Statutory offset against workers' compensation benefits in the amount of claimant's city retirement pension, which was vested, did not affect his entitlement to receive the pension and therefore did not violate this section. Nye v. Indus. Claim Appeals Office, 883 P.2d 607 (Colo. App. 1994).

The gas cost adjustment tariff did not constitute retroactive ratemaking. Colo. Energy Advocacy v. Pub. Serv. Co., 704 P.2d 298 (Colo. 1985).

Renewal of bail bondsman license was not a constitutionally protected property interest where the applicants failed to show a legitimate claim of entitlement in the renewal of their licenses based, for example, on informal rules and mutually explicit understandings, or on state law, but instead placed substantial reliance only upon a unilateral expectation. Ficarra v. Dept. of Reg. Agencies, 849 P.2d 6 (Colo. 1993).

Amendments to provisions governing conditional water rights in nontributary ground water held not to be retrospective when applied to existing conditional water rights. Language of § 37-92-305 (11) authorizes water courts to limit the exercise of conditional water right decrees in nontributary ground water entered before July 1, 1985, by making the doctrine of prior appropriation inapplicable to such conditional water rights, as well as those entered thereafter, removing the reasonable diligence requirement associated with prior appropriation for such water rights, and allowing the water courts to retain jurisdiction over such rights to adjust withdrawal determinations based on local acquifer characteristics. The application of this subsection to conditional water rights entered prior to July 1, 1985, operates as a reasonable limitation on the exercise of a conditional water right and does not operate retrospectively in violation of this section of the constitution. Qualls, Inc. v. Berryman, 789 P.2d 1095 (Colo. 1990).

Application of the 1989 initiative statute amendments to a proposed initiative which was filed prior to enactment of such amendments was not retroactive where the statutes as amended were not applied to initiative procedures which occurred prior to enactment of the amendments and application of the amendments to initiative procedures which occurred after enactment did not result in the creation of new obligations, the imposition of new duties, or the attachment of new disabilities with respect to those procedures which occurred prior to enactment. Comm. for Better Health Care v. Meyer, 830 P.2d 884 (Colo. 1992).

Applying §§ 16-11-801 and 16-11-802 retroactively violates proscription against ex post facto laws where, as a result of the decision in People v. Young, 814 P.2d 834 (Colo. 1991), there was no valid death penalty sentencing statute in effect at the time the offenses were committed. People v. Aguayo, 840 P.2d 336 (Colo. 1992).

The plain language of § 25-14-204 (2) states that a plaintiff who legally expands his cigar-tobacco bar prior to July 1, 2006, would become subject to penalties as of July 1, 2006, for his pre-enactment expansion. This is impermissible ex post facto legislation. Coal. for Equal Rights v. Owens, 458 F. Supp. 2d 1251 (D. Colo. 2006), aff'd on other grounds sub nom. Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d 1195 (10th Cir. 2008).

Retroactive application of amendment to § 18-1-105 (10) enacted in 1991 to defendant who committed offense in 1990 violated the provisions of this section. People v. Munoz, 857 P.2d 546 (Colo. App. 1993).

But retrospective application of mandatory parole provisions in § 18-1-105 (1)(a)(V) enacted in 1993 not violative of ex post facto clause where defendant had pleaded guilty to underlying offense with stipulation that the offense occurred within a time frame that happened to include time periods both prior and subsequent to the date such provisions were enacted. People v. Flagg, 18 P.3d 792 (Colo. App. 2000).

Application of statute governing medical utilization review proceeding, § 8-43-501, does not constitute a retroactive application of law contrary to this section of the Colorado Constitution, since claimant's right to treatment was always subject to statutory qualifications. Donn v. Indus. Claim Appeals Office, 865 P.2d 873 (Colo. App. 1993).

Act establishing new procedures for ensuring that water rights are protected and creating different classes of water rights for certain owners and operators of sand and gravel pits does not alter the vested rights of appellants and, therefore, does not constitute retrospective legislation. Cent. Colo. Water v. Simpson, 877 P.2d 335 (Colo. 1994).

Purpose of ex post facto laws is to ensure that legislative enactments provide fair warning of the effect of such enactments. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).

To be stricken as an ex post facto law, the legislative enactment must (1) be retrospective in effect; and (2) disadvantage the offender. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).

Section 18-3-405 (2)(c) did not violate the prohibition against ex post facto laws since the defendant had the requisite fair warning of the consequences of committing the offense with which he was charged. People v. Bowring, 902 P.2d 911 (Colo. App. 1995).

Prohibition against retrospective legislation with regard to a statutorily vested right not violated by charter amendment requiring voter approval of location and siting of preparole facility for which developer had already received board approval. The charter amendment did not retrospectively impair a vested right because enactment of a law such as the charter amendment was both anticipated and sanctioned in the statute. Villa at Greeley, Inc. v. Hopper, 917 P.2d 350 (Colo. App. 1996).

Real estate developers who enter into economic incentive development agreements have vested contractual rights that cannot be annulled by a later enacted amendment to the city charter requiring voter approval of all new grants of development subsidies or incentives above a certain value. City of Golden v. Parker, 138 P.3d 285 (Colo. 2006).

The policy allowing the state board of agriculture to consider past annual reviews to review faculty performance is not retrospective because the policy does not take away or impair vested rights, create a new obligation, impose a new duty, or attach a new disability. Johnson v. Colo. State Bd. of Ag., 15 P.3d 309 (Colo. App. 2000).

Where attorneys' right to fee award out of common fund established in class action vested before the enactment of § 13-17-203, this section prohibits the retrospective application of § 13-17-203 to defeat class counsel's right to the court-ordered fee. Kuhn v. State, 924 P.2d 1053 (Colo. 1996).

Father's right not to be subjected to an ex post facto law or a retrospective statute was not violated by court order for past due child support retroactive to date of child's birth since the inherent right to child support belongs to the child, both parents have a legal duty to support the child, and this duty existed before the adoption of the specific statutes applied to this case. People ex rel. J.A.E.S., 7 P.3d 1021 (Colo. App. 2000).

There is no violation of prohibition against ex post facto laws where inmate was required to pay interest and attorney fees pursuant to § 16-18.5-103 (4). The restitution act simply facilitates collection from defendant of the sums he was ordered to pay at the time of his sentencing. People v. Lowe, 60 P.3d 753 (Colo. App. 2002).

The application of the amended Colorado exemption limits set forth in § 13-54-102 to a loan and security agreement that was entered into prior to the enactment of the amended exemption statute does not constitute a "retrospective" application of state law in violation of this section and § 2-4-202. In re Larsen, 260 B.R. 174 (Bankr. D. Colo. 2001).

Applied in Virginia Canon Toll-Road Co. v. People ex rel. Vivian, 22 Colo. 429, 45 P. 398 (1896); United Mines Co. v. Hatcher, 79 F. 517 (8th Cir. 1897); Campbell v. Iron-Silver Mining Co., 83 F. 643 (8th Cir. 1897); Paddock v. Staley, 24 Colo. 188, 49 P. 281 (1897); Madden v. Day, 24 Colo. 418, 51 P. 165 (1897); Day v. Madden, 9 Colo. App. 464, 48 P. 1053 (1897); Sipe v. People ex rel. Millikin, 26 Colo. 127, 56 P. 571 (1899); Perry v. City of Denver, 27 Colo. 93, 59 P. 747 (1899); Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 P. 665 (1899); Am. Refrigerator Transit Co. v. Adams, 28 Colo. 119, 63 P. 410 (1900); Bd. of Pub. Works v. Denver Tel. Co., 28 Colo. 401, 65 P. 35 (1901); Evans v. Welch, 29 Colo. 355, 68 P. 776 (1902); Am. Smelting & Ref. Co. v. People ex rel. Lindsley, 34 Colo. 240, 82 P. 531 (1905); Ducey v. Patterson, 37 Colo. 216, 86 P. 109 (1906); Connell v. Clifford, 39 Colo. 121, 88 P. 850 (1907); Kendall v. People ex rel. Hoag, 53 Colo. 100, 125 P. 586 (1912); People ex rel. Tate v. Prevost, 55 Colo. 199, 134 P. 129 (1913); Cobb v. Int'l State Bank, 67 Colo. 488, 186 P. 529 (1919); Hessick v. Moynihan, 83 Colo. 43, 262 P. 907 (1927); Moffat Tunnel Imp. Dist. v. Denver & S. L. Ry., 45 F.2d 715 (10th Cir. 1930); Miller v. Limon Nat'l Bank, 88 Colo. 373, 296 P. 796 (1931); United States Bldg. & Loan Ass'n v. McClelland, 95 Colo. 292, 36 P.2d 164 (1934), cert. denied, 294 U.S. 706, 55 S. Ct. 351, 79 L. Ed. 1241 (1935); Titus v. Titus, 96 Colo. 191, 41 P.2d 244 (1935); Johnson v. McDonald, 97 Colo. 324, 49 P.2d 1017 (1935); People ex rel. Rogers v. Watterman's Estate, 108 Colo. 263, 116 P.2d 204 (1941); People ex rel. Cheyenne Soil Erosion Dist. v. Parker, 118 Colo. 13, 192 P.2d 417 (1948); Peterson v. McNichols, 128 Colo. 137, 260 P.2d 938 (1953); GMC v. Blevins, 144 F. Supp. 381 (D. Colo. 1956); People ex rel. Dunbar v. People ex rel. City & County of Denver, 141 Colo. 459, 349 P.2d 142 (1960); Whitten v. Coit, 153 Colo. 157, 385 P.2d 131 (1963); Hoen v. District Court, 159 Colo. 451, 412 P.2d 428 (1966); City of Englewood v. Mtn. States Tel. & Tel. Co., 163 Colo. 400, 431 P.2d 40 (1967); Shell W. E&P v. Dolores County Bd. of Comm'rs, 948 P.2d 1002 (Colo. 1997); Colo. Dept. of Pub. Health & Env't v. Bethell, 60 P.3d 779 (Colo. App. 2002).

V. IRREVOCABLE PRIVILEGES AND FRANCHISES.

Under this section no perpetual franchise of special privilege can be granted. City of Leadville v. Leadville Sewer Co., 47 Colo. 118, 107 P. 801 (1909).

Limitation as to franchises applies to municipalities. Under this section the general assembly is inhibited from making any irrevocable grant of special privileges, franchises or immunities and this limitation also applies to municipalities. Thomas v. City of Grand Junction, 13 Colo. App. 80, 56 P. 665 (1899); Pub. Serv. Co. v. City of Loveland, 79 Colo. 216, 245 P. 493 (1926).

Three-year statute of limitations in § 33-44-111 of the Ski Safety Act based on reasonable grounds and therefore does not violate this section's prohibition against special privileges or immunities. Schafer v. Aspen Skiing Corp., 742 F.2d 580 (10th Cir. 1984).

Statute, on its face, does not violate this section if it contains no "irrevocable grant of special privileges, franchises, or immunities" within its four corners. In re House Bill 91S-1005, 814 P.2d 875 (Colo. 1991).

One-year statute of limitations in §§ 12-46-112.5 and 12-47-128.5 for filing claims against liquor licensees arising from the improper sale, service, or provision of fermented malt and alcoholic beverages to minors or intoxicated persons does not constitute a perpetual or exclusive privilege or franchise and thus neither statute violates the prohibition against special privileges or immunities. Estate of Stevenson v. Hollywood Bar, 832 P.2d 718 (Colo. 1992).

No violation of the prohibition against retrospective laws existed in court's application of two-year statute of repose, rather than prior six-year statute, to homeowners' association's petition for abatement and refund. Woodmoor Imp. v. Prop. Tax Adm'r, 895 P.2d 1087 (Colo. App. 1994).

Applied in Westinghouse Elec. & Mfg. Co. v. Denver Tramway Co., 3 F.2d 285 (D. Colo. 1924); City & County of Denver v. Denver Tramway Corp., 23 F.2d 287 (8th Cir. 1927); Peterson v. McNichols, 128 Colo. 137, 260 P.2d 938 (1953); Enger v. Walker Field, 181 Colo. 253, 508 P.2d 1245 (1973).

I. GENERAL CONSIDERATION.

Law reviews. For article, "Legality of the Denver Housing Authority", see 12 Rocky Mt. L. Rev. 30 (1939). For article, "Municipal Powers and the Public Purpose Doctrine", see 21 Rocky Mt. L. Rev. 277 (1949). For note, "Expenses of Moving in Eminent Domain C ases", see 30 Dicta 269 (1953). For article, "Recent Developments in C olorado Eminent Domain", see 27 Rocky Mt. L. Rev. 23 (1954). For article, "Condemnation and Redevelopment", see 28 Rocky Mt. L. Rev. 535 (1956). For article, "A Review of the 1959 Constitutional and Administrative Law Decisions", see 37 Dicta 81 (1960). For article, "Constitutional Law: The Validity of Urban Renewal in Colorado", see 39 Dicta 149 (1962). For article, "Urban Renewal--A Partnership of Public and Private Interests for Urban Betterment", see 39 Dicta 291 (1962). For comment on Rabinoff v. District Court appearing below, see 35 U. Colo. L. Rev. 269 (1963). For note, "Ownership of Streets and Rights of Abutting Landowners in Colorado", see 40 Den. L. Ctr. J. 26 (1963). For article, "Water for Recreation: A Plea for Recognition", see 44 Den. L. J. 288 (1967). For article, "An Engineering--Legal Solution to Urban Drainage Problems", see 45 Den. L. J. 381 (1968). For comment, "Water: Statewide or Local Concern -- City of Thornton v. Farmers Reservoir & Irrigation Co., 194 Colo. 526, 575 P.2d 382 (1978)", see 56 Den. L.J. 625 (1979). For comment, "People v. Emmert: A Step Backward for Recreational Water Use in Colorado", see 52 U. Colo. L. Rev. 247 (1981). For article, "The Colorado Supreme Court Redefines Compensable Damages In Condemnation Actions", see 16 Colo. Law. 1829 (1987). For comment, "Eminent Domain: A Case Comment -- Mountain States Legal Foundation v. Hodel", see 65 Den. U. L. Rev. 581 (1988). For article, "Just Compensation in Condemnation Cases", see 18 Colo. Law. 1735 (1989). For article, "Animus Over Animas?--Changes in Regulatory Takings Law in Colorado", see 31 Colo. Law. 69 (April 2002). For article, "The Reemergence of Property Owners' Rights in Takings Jurisprudence", see 31 Colo. Law. 93 (June 2002). For article, "A Systematic Approach to Colorado Takings Law", see 33 Colo. Law. 75 (April 2004). For article, "Eminent Domain Law in Colorado--Part I: The Right to Take Private Property", see 35 Colo. Law. 65 (Sept. 2006). For article, "Kelo Confined--Colorado Safeguards Against Condemnation for Public-Private Transportation Projects", see 37 Colo. Law. 39 (March 2008). For note, "The Right to Float: The Need for the Colorado Legislature to Clarify River Access Rights", see 83 U. Colo. L. Rev. 845 (2012).

This section and fifth amendment to U.S. Constitution prohibit the taking of private property for public use without just compensation. Thompson v. City & County of Denver, 958 P.2d 525 (Colo. App. 1998); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd, 17 P.3d 797 (Colo. 2001).

This section is merely declaration of law as it stood at time constitution was made. Denver R. R. Land & Coal Co. v. Union P.R.R., 34 F. 386 (D. Colo. 1888).

And guarantees right that exists regardless of constitutional provisions. Not only does this section guarantee the right of a person whose property is taken for public use to receive compensation therefor, but the right exists regardless of constitutional provisions. Chicago B. & Q.R.R. v. Pub. Utils. Comm'n, 69 Colo. 275, 193 P. 726 (1920).

Independent of right of eminent domain. The right of a person owning property to just compensation for the taking or damaging thereof for public use is independent of the state's right of eminent domain. Farmers Irrigation Co. v. Game & Fish Comm'n, 149 Colo. 318, 369 P.2d 557 (1962).

Extension of common-law right. The phrase of this section, "or damaged for public or private use without just compensation", is an extension of the common constitutional provision designed for the protection of private property. It is a recognition of a new right of recovery, which is not limited to cases where an action would have lain at common law. Denver Circle R.R. v. Nestor, 10 Colo. 403, 15 P. 714 (1887); City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1894).

Section affords greater protection than federal constitution. This section affords an aggrieved property owner a greater measure of protection than does the constitution of the United States. The fifth amendment of the United States Constitution requires compensation only where there has been an actual taking. The Colorado Constitution, however, provides for compensation where private property has been taken or damaged. Mosher v. City of Boulder, 225 F. Supp. 32 (D. Colo. 1964).

It is remedial in nature and effect. This section while not intended to disturb vested rights, nor in itself prohibitory of the exercise of powers previously granted by the general assembly, is remedial in its nature and effect respecting existing property rights. Its mandate is that, where they are taken or injuriously affected subsequent to the day on which the constitution went into effect, just compensation shall be made. Denver Circle R.R. v. Nestor, 10 Colo. 403, 15 P. 714 (1887).

And should be liberally construed. This section is remedial in character and, for the purpose of giving property holders additional security and under well settled canons of construction, it should be liberally construed. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1894); Srb v. Bd. of County Comm'rs, 43 Colo. App. 14, 601 P.2d 1082 (1979).

Purpose of this section of the constitution is to provide a remedy in damages for injury to property, not common to the public, inflicted by the state or one of its political subdivisions; and this section is not limited in application to condemnation proceedings. Srb v. Bd. of County Comm'rs, 43 Colo. App. 14, 601 P.2d 1082 (1979).

The purpose of this section is to prevent a property owner from being made to suffer an uncompensated injury, not common to the public, as a result of the construction of a public improvement. Such improvements are frequently made or authorized by counties; and to say that because of that fact damages so suffered cannot be recovered is to deny to the language of the constitution its obvious import. Bd. of Comm'rs v. Adler, 69 Colo. 290, 194 P. 621 (1920).

The actual purpose of this section is to place a limitation even upon legislative enactment. Under the restriction of this section the general assembly itself must exercise care in declaring to be a "public use" (and hence entitled to the right of eminent domain) only that which may meet the legal tests of such use as determined by the judiciary. Potashnik v. Pub. Serv. Co., 126 Colo. 98, 247 P.2d 137 (1952).

This section applies to proceedings in eminent domain, and to situations in which such proceedings would be proper; i.e., where condemnation would be necessary were the required property not otherwise acquired. Bd. of Comm'rs v. Adler, 69 Colo. 290, 194 P. 621 (1920).

But applicability of section is not limited to such proceedings. Bd. of Comm'rs v. Adler, 69 Colo. 290, 194 P. 621 (1920).

This provision is not limited in its application to condemnation proceedings. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

It marks boundary beyond which people have forbidden lawmakers to pass and have commanded their courts to hold any such passage illegal. How inviolable that constitutional inhibition is, is demonstrated by the fact that the supreme court once inadvertently permitted its protection to be threatened (North Sterling Irrigation Dist. v. Dickman, 59 Colo. 169, 149 P. 97 (1915)), but at the first opportunity overruled the dangerous precedent and returned to the solid ground of strict construction. Bd. of Comm'rs v. Adler, 69 Colo. 290, 194 P. 621 (1920); San Luis Valley Irrigation Dist. v. Noffsinger, 85 Colo. 202, 274 P. 827 (1929).

Right to condemn private property is creature of statute, pursuant to which it must clearly appear either by express grant or by necessary implication. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

Private property may not be condemned, even for a purpose which is judicially determined to be a public use within the meaning of this section, in the absence of express or necessarily implied statutory condemnation authority. Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980); Bd. of County Comm'rs v. Intermountain Rural Elec. Ass'n, 655 P.2d 831 (Colo. 1982); Dept. of Transp. v. Stapleton, 81 P.3d 1105 (Colo. App. 2003), rev'd on other grounds, 97 P.3d 938 (Colo. 2004).

Subject to constitutional guarantees. The power of eminent domain is an attribute of sovereignty, conditioned by the requirement that just compensation be paid for the taking. Colo. ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

The right of eminent domain recognizes the due process provision of the constitution, provides for the legal and orderly acquisition of private property for public use, and for just compensation for the taking. Town of Sheridan v. Valley San. Dist., 137 Colo. 315, 324 P.2d 1038 (1958).

Whatever may have been the ancient right of condemnation, it has been restrained by constitutional limitations in the protection of individual property rights. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

The Colorado Constitution, as well as the federal constitution, protects against an arbitrary exercise of eminent domain to correct a blighted area by the urban renewal authority. Urban Renewal Auth. v. Daugherty, 271 F. Supp. 729 (D. Colo. 1967).

Deprivation of use must meet standard of reasonableness. Although, under its police power, there are situations in which a government may deprive the owner of a certain use of property and not be in violation of the prohibition against taking private property without just compensation, nevertheless, there must be a recognition that that exercise of the police power can only be valid under--and only under--a standard of reasonableness. Combined Commc'ns Corp. v. City & County of Denver, 189 Colo. 462, 542 P.2d 79 (1975).

Where city compels owner to bring building into compliance with safety code, but does not deprive owner of all reasonable use of the building, such action by city does not constitute a taking. Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990).

A governmental regulation that prohibits all reasonable use of property constitutes a taking. Williams v. City of Central, 907 P.2d 701 (Colo. App. 1995).

There can be no "inverse condemnation" where no right exists in governmental agency to proceed under eminent domain. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

Protection of private property in this section presupposes that it is wanted for public use. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

Whether contemplated use is public is judicial question. If it is public, the necessity or expediency of devoting the property to it is a question for the determination of a city. Colo. Cent. Power Co. v. City of Englewood, 89 F.2d 233 (10th Cir. 1937).

Judicial approval of the purpose for the taking of property as a public use is required. Larson v. Chase Pipe Line Co., 183 Colo. 76, 514 P.2d 1316 (1973).

By the last clause of this section an inquiry may be made by the court as to whether a railroad which is proposed to be built is of a public or private character. Denver R.R. Land & Coal Co. v. Union Pac. Ry., 34 F. 386 (1888).

The general right of eminent domain depends upon, first, legislative authority and, second, judicial approval of the purpose as a public use. Potashnik v. Pub. Serv. Co., 126 Colo. 98, 247 P.2d 137 (1952).

The question of whether a contemplated use is a public use is an issue for judicial determination. Shaklee v. District Court, 636 P.2d 715 (Colo. 1981); Pub. Serv. Co. v. Shaklee, 784 P.2d 314 (Colo. 1989).

Takings questions present mixed issues of law and fact. An appellate court must defer to a trial court's factual determinations but reviews de novo the legal determination of whether something is for a public use. Carousel Farms Metro. v. Woodcrest, 2019 CO 51, 442 P.3d 402.

Because the takings purpose was essentially to benefit the public, the taking satisfied the public use requirement of the state constitution and statutes, even if, at the time of the taking, there was an incidental public benefit. The state constitution requires that condemnation benefit the public but it doesn't prohibit a private party from incidentally benefitting from any particular condemnation. When a condemnation's benefits are essentially public, there is no constitutional violation. Carousel Farms Metro. v. Woodcrest, 2019 CO 51, 442 P.3d 402.

The public purpose of an intended act--here, a prescribed burn--that ultimately results in an unintentional taking--here, a wildfire that damaged private property--does not transfer to and supply the "public purpose" for that taking. Merely showing that the taking was the direct, natural, or probable consequence of the state's intended act does not necessarily establish that the taking was for a public purpose. Am. Family Mut. v. Am. Nat'l Prop. & Cas., 2 015 COA 135, 370 P.3d 319.

Trial court properly dismissed petition by county to condemn a portion of owner's property for use as a public road because county presented no valid public purpose for its condemnation of owner's property. Here, public purpose is to benefit private parties; a few, select members of the public will gain access to a private cemetery. Such a private benefit does not constitute a valid public purpose. Bd. of County Comm'rs v. Kobobel, 176 P.3d 860 (Colo. App. 2007).

As duty of judiciary to safeguard use of property. Neither the executive nor the legislative branches of government have any right whatsoever to deprive anyone of his life, liberty, or property without due process or compensation, and under our system of government it was intended that the judicial branch of the government stand open as a haven for the protection of any citizens whose rights have been invaded, whether it be by an individual or by either of the other branches of our government. Boxberger v. State Hwy. Dept., 126 Colo. 438, 250 P.2d 1007 (1952).

It is the unquestioned duty and responsibility of the judicial branch of government, through the decision of controversies which come before it, to safeguard and maintain the constitutional provisions which guarantee the maximum free and unrestricted use of property by the citizen, and to strike down those enactments which unreasonably and unnecessarily fasten upon him new restraints upon freedom of action in the use and enjoyment thereof. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

A federal district court with diversity jurisdiction can consider an inverse condemnation claim arising under the Colorado constitution and statutes providing a special judicial procedure for condemnation claims. SK Fin. SA v. La Plata County, Bd. of Comm'rs, 126 F.3d 1272 (10th Cir. 1997).

Supreme court, on its own motion, will take notice of invalidity of municipal ordinance enacted in support of exhorbitant demands and authorizing the taking of private property without due process of law. Town of Sheridan v. Valley San. Dist., 137 Colo. 315, 324 P.2d 1038 (1958).

No formula for determining nature of use. No definition has as yet been formulated which would serve as an infallible test in determining whether a use of property sought to be appropriated under the power of eminent domain is public or private. Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980); Pub. Serv. Co. v. Shaklee, 784 P.2d 314 (Colo. 1989).

But court's determination reviewable for arbitrariness. When subject to inquiry as to whether a use is public under this section it must be determined by a board of commissioners appointed by the court. If that determination is not made arbitrarily, or capriciously or in bad faith, it is conclusive and not subject to judicial review. Colo. Cent. Power Co. v. City of Englewood, 89 F.2d 233 (10th Cir. 1937).

If primary purpose of condemnation is to advance private interests, the existence of an incidental public benefit does not prevent a court from finding "bad faith" and invalidating a condemning authority's determination that a particular acquisition is necessary. Denver W. Metro. Dist. v. Geudner, 786 P.2d 434 (Colo. App. 1989).

Owner of property to be condemned has burden of proving that taking of property is not for a public purpose. Pub. Serv. Co. v. Shaklee, 784 P.2d 314 (Colo. 1989).

Proposed urban renewal project is public and not private where the underlying object is to eliminate blighted areas and prevent the spread and recurrence of blight conditions and where the grant is to a public agency which acquires the lands in question under a master plan of rehabilitation; the fact that when redevelopment is achieved the properties are sold to private individuals for the purpose of development does not rob the undertaking of its public purpose. Rabinoff v. District Court, 145 Colo. 225, 360 P.2d 114 (1961).

Urban renewal is a public use, ultimate private ownership notwithstanding. Tracy v. City of Boulder, 635 P.2d 907 (Colo. App. 1981).

Even though a private developer may benefit from the city's project, the record supports the trial court's determination that the condemnation of the property was for a valid public purpose and was not incidental. City & County of Denver v. Eat Out, Inc., 75 P.3d 1141 (Colo. App. 2003).

Taking of water for use in operation of hatchery is for public purpose. Farmers Irrigation Co. v. Game & Fish Comm'n, 149 Colo. 318, 369 P.2d 557 (1962).

Construction of dust levees for protection of railroad tracks is public use such as would justify condemnation of private property. Buck v. District Court, 199 Colo. 344, 608 P.2d 350 (1980).

Condemnation of right-of-way across land to construct transmission lines constitutes a public use since others have same right to access to use power from transmission lines on the same terms as the company for which such lines were originally constructed. Pub. Serv. Co. v. Shaklee, 784 P.2d 314 (Colo. 1989).

Urban renewal is a substantial state interest that can justify taking property dedicated to religious uses. Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250 (1973).

Remand necessary so trial court can independently examine the public purpose of the condemnation based on the record of proceedings before urban renewal authority and, without either deferring to the authority's blight determination or considering bad faith, make findings from the existing record reflecting that examination. Sheridan Redev. Agency v. Knightsbridge Land Co., 166 P.3d 259 (Colo. App. 2007).

Counties unable to acquire office space by eminent domain. The general assembly has not impliedly delegated the power of eminent domain to counties for the purpose of acquiring office space for authorized county purposes. Bd. of County Comm'rs v. Intermountain Rural Elec. Ass'n, 655 P.2d 831 (Colo. 1982).

Sanitation district has power to condemn land. Under the constitutional provisions establishing the right of eminent domain and the several statutes enacted pursuant thereto, a sanitation district has power and authority to condemn land. Town of Sheridan v. Valley San. Dist., 137 Colo. 315, 324 P.2d 1038 (1958).

And property so acquired cannot be lost by operation of law. Property acquired under the constitution and statutes by exercise of the right of eminent domain, cannot be lost by operation of a municipal ordinance. The legal entity condemning the property obtains the absolute right, title and interest thereto; an ordinance of a municipality providing that all right, title and interest in a sanitary sewer constructed through such municipality pursuant to condemnation of a right-of-way therefor shall vest, not in the sewer district acquiring the right-of-way, but in the town at the expiration of five years, is void. Town of Sheridan v. Valley San. Dist., 137 Colo. 315, 324 P.2d 1038 (1958).

Special assessment without benefit violates section. To enforce a special assessment for a purpose which does not confer a special benefit upon the property upon which it is levied would result in taking property without compensation, and without due process of law. Pomroy v. Bd. of Pub. Waterworks, Dist. No. 2, 55 Colo. 476, 136 P. 78 (1913); Santa Fe Land Imp. Co. v. City & County of Denver, 89 Colo. 309, 2 P.2d 238 (1931); City & County of Denver v. Greenspoon, 140 Colo. 402, 344 P.2d 679 (1959).

As do excessive assessments. An assessment for local improvements apportioned on the area basis insofar as it exceeds the benefits is violative of this section. Ross v. City & County of Denver, 89 Colo. 317, 2 P.2d 241 (1931).

Where taxes result in a flagrant inequality between the burden imposed and the benefit received, they are confiscatory and unconstitutional. Ochs v. Town of Hot Sulphur Springs, 158 Colo. 456, 407 P.2d 677 (1965).

Refusal to enforce racial covenant does not deprive owner of property. The trial court's refusal to recognize the vested interest in defendant and to enforce forfeiture of the property for failure to comply with a racial restrictive covenant did not deprive defendant of property without just compensation and without due process of law. Capitol Fed. Sav. & Loan Ass'n v. Smith, 136 Colo. 265, 316 P.2d 252 (1957).

Actions of the city requiring a mobile home park owner to bring the park into compliance with the city code do not constitute a taking because enforcement of the code does not deprive the owner of all use of the property. Trailer Haven MHP, LLC v. City of Aurora, 81 P.3d 1132 (Colo. App. 2003).

Inverse condemnation action is based on this section. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

In order to pursue an inverse condemnation claim under the Colorado Constitution, that is, to compel the state to exercise its power of eminent domain, a plaintiff must establish: (1) That there has been a taking or damaging of property interest, (2) for a public purpose without just compensation, (3) by a governmental or public entity that has the power of eminent domain but which has refused to exercise it. Thompson v. City & County of Denver, 958 P.2d 525 (Colo. App. 1998).

Inverse condemnation proceeding is ordinarily only remedy available to a litigant whose property has been taken for a public use without just compensation. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981).

To pursue an inverse condemnation claim under the Colorado Constitution, i.e., to compel a public entity to provide compensation to a property owner, the property owner must establish: (1) There has been a taking or damaging of a property interest; (2) for a public purpose; (3) without just compensation; (4) by a governmental or public entity that has the power of eminent domain but which has refused to exercise that power. Thompson v. City & County of Denver, 958 P.2d 525 (Colo. App. 1998); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001); Betterview Invs., LLC v. Pub. Serv. Co., 198 P.3d 1258 (Colo. App. 2008); Colo. Springs v. Andersen Mahon Enters., 260 P.3d 29 (Colo. App. 2010).

In a regulatory inverse condemnation case, there is a two-tiered inquiry. First, a court must determine whether a per se taking has occurred. Second, if a landowner is unable to prove a per se compensable takings claim (because the regulation has a legitimate purpose and the owner's land has not been rendered economically idle), the landowner may still be able to prove a takings has occurred under a fact-specific inquiry. Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm'rs of La Plata, 38 P.3d 59 (Colo. 2001).

Where a regulation places limitations on land that fall far short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a number of complex factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. No one factor is dispositive. Each case must be decided on its own facts. Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm'rs of La Plata, 38 P.3d 59 (Colo. 2001).

In a regulatory takings case, a court must determine the regulation's effects on the full rights in the land. Thus, in assessing a takings claim, a court must look to the regulation's effect on the property as a whole, not simply the portion affected by the exaction. Animas Valley Sand & Gravel, Inc. v. Bd. of County Comm'rs of La Plata, 38 P.3d 59 (Colo. 2001).

An inverse condemnation action is to be tried as if it were eminent domain proceeding. Ossman v. Mtn. States Tel. & Tel. Co., 184 Colo. 360, 520 P.2d 738 (1974).

An inverse condemnation action based on this section is to be treated as an eminent domain proceeding, conducted strictly according to the procedures set out in § 38-1-101. Hayden v. Bd. of County Comm'rs, 41 Colo. App. 102, 580 P.2d 830 (1978); Linnebur v. Pub. Serv. Co. of Colo., 716 P.2d 1120 (Colo. 1986).

However, an inverse condemnation action is appropriate only where the state entity has eminent domain powers at the time of the taking. In this case, since the department of health did not have condemnation powers until after the regulatory taking, the inverse condemnation claim was dismissed. Dept. of Health v. The Mill, 809 P.2d 434 (Colo. 1991).

Physical condemnation is not required for a property owner to state a claim for relief in an inverse condemnation proceeding, but the owner must show a legal interference that substantially impairs his or her use or possession of the property. Colo. Springs v. Andersen Mahon Enters., 260 P.3d 29 (Colo. App. 2010).

Exhaustion of administrative remedies, notice of claims, and sovereign immunity are not defenses available to the state in an inverse condemnation action. The Mill v. State Dept. of Health, 787 P.2d 176 (Colo. App. 1989).

Governmental immunity inapplicable to inverse condemnation. Given the constitutional genesis of a claim for inverse condemnation and the special nature of the right upon which the claim is founded, the claim is not subject to the limitations of the Colorado Governmental Immunity Act. Jorgenson v. City of Aurora, 767 P.2d 756 (Colo. App. 1988).

Section 1983 federal civil rights claim is premature so long as possibility of inverse condemnation exists. Until inverse condemnation has been pursued, where possible, and has failed, there is no taking without compensation that could constitute a deprivation of civil rights. Jorgenson v. City of Aurora, 767 P.2d 756 (Colo. App. 1988).

State statute prohibiting municipality from exacting a fee from telecommunications providers for the use of public rights-of-way, beyond costs directly incurred by the municipality, does not authorize a taking of property for which the municipality would be entitled to compensation by inverse condemnation. A municipality controls public rights-of-way in its governmental capacity, and such property is not "private" for purposes of a takings analysis. City & County of Denver v. Qwest Corp., 18 P.3d 748 (Colo. 2001).

A government entity's entry onto private property for survey purposes prior to initiating eminent domain proceedings does not constitute a compensable taking. San Miguel County Bd. of County Comm'rs v. Roberts, 159 P.3d 800 (Colo. App. 2006).

Application of § 43-2-201 does not constitute a governmental taking for which compensation is required. Bd. of County Comm'rs v. Flickinger, 687 P.2d 985 (Colo. 1984).

Redemption interest under § 39-12-103 (3) is a penalty, and when the government exacts a penalty, it may deduct the penalty from a money judgment without effecting a taking. Because the taxpayers had no reasonable expectation that they were exempt from this penalty, the redemption interest charged by the county implicates no property interest and there is no violation of the takings clauses. Dove Valley Bus. Park v. County Comm'rs, 945 P.2d 395 (Colo. 1997).

Exemptions allowed in act regarding the obtainment of well permits and augmentation plans by owners and operators of sand and gravel pits will somewhat decrease the amount of water available in the river for use, but this fact alone does not establish substantial damage to any particular water right owner. There is no violation of the takings clause of the Colorado constitution. Central Colo. Water v. Simpson, 877 P.2d 335 (Colo. 1994).

A claim for wrongful taking under this section must be based on some right of the property owner to exercise or use its property during the period in question. Where the owner had leased the property and the lessee had declared bankruptcy, the owner had no possessory interest in the property during the time the property was held by a receiver and therefore had no claim for injury based on the receiver's actions. Spencer Invs., Inc. v. Bohn, 923 P.2d 140 (Colo. App. 1995).

Landowners have no right to pollute a stream or use property in a manner that could result in the spread of radioactive contamination. A landowner cannot reasonably expect to put property to a use that constitutes a nuisance, even if that is the only economically viable use for the property. Under such circumstances, a government need not pay even for complete takeover or destruction of property if it is justified by the owner's insistence on using the property to injure other people or their property. Aztec Minerals Corp. v. Romer, 940 P.2d 1025 (Colo. App. 1996).

The mere remediation of a contaminated site, even if it resulted in physical damage to the property, could not result in a taking for public or private use. Aztec Minerals Corp. v. Romer, 940 P.2d 1025 (Colo. App. 1996).

Applied in Knoth v. Barclay, 8 Colo. 300, 6 P. 924 (1885); People ex rel. Aspen M. & S. Co. v. District Court, 11 Colo. 147, 17 P. 298 (1887); Searl v. Sch. Dist. No. 2, 133 U.S. 553, 10 S. Ct. 374, 33 L. Ed. 740 (1890); Colo. Cent. R.R. v. Humphreys, 16 Colo. 34, 26 P. 165 (1891); Strickler v. City of Colo. Springs, 16 Colo. 61, 26 P. 313 (1891); In re Substitute for Senate Bill No. 83, 21 Colo. 69, 39 P. 1088 (1895); Broadmoor Land Co. v. Curr, 142 F. 421 (8th Cir. 1905); Hildreth v. City of Longmont, 47 Colo. 79, 105 P. 107 (1909); Crystal Park Co. v. Morton, 27 Colo. App. 74, 146 P. 566 (1915); Sternberger v. Continental Mines Power & Reduction Co., 68 Colo. 129, 186 P. 910 (1920); Averch v. City & County of Denver, 78 Colo. 246, 242 P. 47 (1925); Pub. Serv. Co. v. City of Loveland, 79 Colo. 216, 245 P. 493 (1926); Colby v. Bd. of Adjustment, 81 Colo. 344, 255 P. 443 (1927); La Plata River & Cherry Creek Ditch Co. v. Hinderlider, 93 Colo. 128, 25 P.2d 187 (1933); Driverless Car Co. v. Armstrong, 91 Colo. 334, 14 P.2d 1098 (1934); Pub. Utils. Comm'n v. Manley, 99 Colo. 153, 60 P.2d 913 (1936); Rinn v. Bedford, 102 Colo. 475, 84 P.2d 827 (1938); Union Exploration Co. v. Moffat Tunnel Imp. Dist., 104 Colo. 109, 89 P.2d 257 (1939); Gordon v. Wheatridge Water Dist., 107 Colo. 128, 109 P.2d 899 (1941); Vogts v. Guerrette, 142 Colo. 527, 351 P.2d 851 (1960); Overhill Corp. v. City of Grand Junction, 186 F. Supp. 69 (D. Colo. 1960); Stark v. Poudre Sch. Dist. R-1, 192 Colo. 396, 560 P.2d 77 (1977); Coquina Oil Corp. v. Harry Kourlis Ranch, 643 P.2d 519 (Colo. 1982); Brubaker v. Bd. of County Comm'rs, 652 P.2d 1050 (Colo. 1982); Good Fund, Ltd.-1972 v. Church, 540 F. Supp. 519 (D. Colo. 1982); Direct Mail Servs., Inc. v. Colo., 557 F. Supp. 851 (D. Colo. 1983); Herring v. Platte River Power Auth., 728 P.2d 709 (Colo. 1986).

II. PROPERTY RIGHTS PROTECTED.

Section protects private property or some right peculiar to owner. It is only when some specific private property, or some right or interest therein or incident thereto, peculiar to the owner, is taken or damaged for public or private use that the constitution guarantees compensation therefor. Gilbert v. Greeley, S. L. & Pac. Ry., 13 Colo. 501, 22 P. 814 (1889).

Property interests are defined by existing rules or understandings that stem from an independent source such as state law. Dove Valley Bus. Park v. County Comm'rs, 945 P.2d 395 (Colo. 1997).

Property includes right to freely possess, use and alienate chattel or land. Property, in its broader and more appropriate sense, is not alone the chattel or the land itself, but the right to freely possess, use and alienate the same; and many things are considered property which have no tangible existence, but which are necessary to the satisfactory use and enjoyment of that which is tangible. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

Property is more than the mere thing which a person owns. It is elemental that it includes the right to acquire, use, and dispose of it. The constitution protects these essential attributes of property. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

But section does not guarantee most profitable use of property. The due process and just compensation clauses of the federal and state constitutions do not require that a landowner be permitted to make the best, maximum, or most profitable use of his property. Baum v. City & County of Denver, 147 Colo. 104, 363 P.2d 688 (1961); Madis v. Higginson, 164 Colo. 320, 434 P.2d 705 (1967); Wright v. City of Littleton, 174 Colo. 318, 483 P.2d 953 (1971).

There is simply no constitutionally protected right under the federal or state constitutions to gain the maximum profit from the use of property. Nopro v. Town of Cherry Hills Vill., 180 Colo. 217, 504 P.2d 344 (1972).

The due process and just compensation clauses do not require that zoning ordinances permit a landowner to make the most profitable use of his property. Bird v. City of Colo. Springs, 176 Colo. 32, 489 P.2d 324 (1971).

All private property is held subject to reasonable police powers of state as exercised through properly constituted authorities; and, certainly all public property is held under no less a power. Asphalt Paving Co. v. Bd. of County Comm'rs, 162 Colo. 254, 425 P.2d 289 (1967).

To provide for public welfare and security. One of the essential elements of property is the right to its unrestricted use and enjoyment, and that use cannot be interfered with beyond what is necessary to provide for the welfare and general security of the public. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959); Wright v. City of Littleton, 174 Colo. 318, 483 P.2d 953 (1971).

Easements deemed property. Incorporeal hereditaments, particularly those denominated easements, have always been considered property, both by the civil and the common law. They are generally attached to things corporeal, and are said to "issue out of or concern" them. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

Such an easement of abutting owner in street. An easement in a street connected with the lot of an abutting owner is property within the meaning of this and the preceding section, and any interference therewith, which results in injury to the realty, must, with exceptions, be justly compensated. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

Right of access is subject to reasonable control and limitation. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969); Thornton v. City of Colo. Springs, 173 Colo. 357, 478 P.2d 665 (1970); Shaklee v. Bd. of County Comm'rs, 176 Colo. 559, 491 P.2d 1366 (1971).

And improvements or inconvenience may be damnum absque injuria. Sometimes interferences and the resulting injury may properly be held to be damnum absque injuria, where they are occasioned by a reasonable improvement of the street by the proper authorities for the greater convenience of the public; or where a temporary inconvenience or injury results from a legitimate use thereof by the public. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

For injuries resulting from reasonable and ordinary or usual change and improvement of the street by the municipality, the abutting owner cannot recover, provided the change or improvement is made in a careful and skillful manner for the benefit of the public. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1894); City of Colo. Springs v. Stark, 57 Colo. 384, 140 P. 794 (1914).

Although doctrine of damnum absque injuria has not been applied where municipal authorities have made an unreasonable change in the street, or put it, or allowed it to be put, to an extraordinary or unusual use. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1906).

Consent to reasonable changes presumed. In purchasing his lot or dedicating the easement to the public, the abutting owner is conclusively presumed to have contemplated the power and authority of the city council to skillfully make reasonable changes and improvements, by raising or lowering the grade, or otherwise. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883); City of Denver v. Vernia, 8 Colo. 399, 8 P. 656 (1885).

Including bridges or street railways. Bridges, culverts, and even street railways, but not ordinary railroads, are matters contemplated by the lot owner when he purchases. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

But not viaducts obstructing access to property. The building of a viaduct in a public street over railroad tracks is such an extraordinary use of the street as could not have been reasonably anticipated at the time of the dedication. And under this section, both principle and authority unite in support of the rule allowing the owner of abutting property to recover damages when the means of ingress and egress to his property is obstructed or injured thereby. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1906).

Right to hunt wild game not enforceable property right. The right to hunt wild game upon one's own land is not a property right enforceable against the state under this section. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981).

City ordinances banning billboards unconstitutional. Where the combined effect of two city ordinances would be to eliminate the billboard business in Denver, by enforcing the prohibition against the erection of any new billboards, and by forcing the removal of existing signs, the city ordinances were unconstitutional. Combined Commc'ns Corp. v. City & County of Denver, 189 Colo. 462, 542 P.2d 79 (1975).

Right to use of water acquired by priority of appropriation deemed property right. The people and the courts of Colorado treat as property the right to a use of water acquired by priority of appropriation. The right of user would, of course, be of no value without the water; but it is this right that is mainly the subject of ownership. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

The right to the use of water secured by legal appropriation is property, and a proper construction of §§ 5 and 6 of art. XVI, Colo. Const., dealing with the public nature of water and the diversion of unappropriated water for irrigation purposes harmonized these provisions with the declaration of this section "that private property shall not be taken or damaged for public or private use without just compensation". Armstrong v. Larimer County Ditch Co., 1 Colo. App. 49, 27 P. 235 (1891).

Rights to the use of water for a beneficial purpose, whatever the use may be, are property, in the full sense of that term, and are protected by this section. Sterling v. Pawnee Ditch Extension Co., 42 Colo. 421, 94 P. 339, 15 L.R.A. 238 (1908).

A priority to the use of water for irrigation or domestic purposes is a property right and as such is fully protected by the constitutional guarantees relating to property in general. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

If a lessee's unexpired leasehold interest is subjected to condemnation, the lessee generally is entitled to compensation. Fibreglas Fabricators, Inc. v. Kylberg, 799 P.2d 371 (Colo. 1990).

An exemplary damages award is a private property right, and the statutory requirement that one-third of all damages collected pursuant to § 13-21-102 be paid into the state general fund constitutes a taking of a judgment creditor's private property without just compensation in violation of the fifth and fourteenth amendments to the United States constitution and this section of the constitution. Kirk v. Denver Pub. Co., 818 P.2d 262 (Colo. 1991).

Church property is private property which can be taken by eminent domain for paramount public use. Pillar of Fire v. Denver Urban Renewal Auth., 181 Colo. 411, 509 P.2d 1250 (1973).

Fixtures are part of realty for which compensation must be paid to the owner by the condemning authority. Denver Urban Renewal Auth. v. Steiner Am. Corp., 31 Colo. App. 125, 500 P.2d 983 (1972).

Items presumed fixtures. Where the identity of the specific items of property not taken by urban renewal authority is not reflected in the record, and the affidavit stands uncontroverted, it must be presumed that the items for which landowner was awarded compensation were fixtures and equipment used in the condemned plant and that for purposes of eminent domain such fixtures and equipment had become a part of the building. Denver Urban Renewal Auth. v. Steiner Am. Corp., 31 Colo. App. 125, 500 P.2d 983 (1972).

Where urban renewal authority does not litigate landowner's allegation that machinery and equipment not taken by urban renewal authority are fixtures, urban renewal authority cannot avoid liability for property owner for expenses incurred in moving and relocating the machinery and equipment on the theory that they consist only of personal property. Denver Urban Renewal Auth. v. Steiner Am. Corp., 31 Colo. App. 125, 500 P.2d 983 (1972).

III. DAMAGING OR TAKING OF PROPERTY.

A taking of property occurs when the entity clothed with the power of eminent domain substantially deprives a property owner of the use and enjoyment of that property. A taking can be effected by a legal interference with the physical use, possession, disposition, or enjoyment of the property, or by acts which constitute an exercise of dominion and control by a governmental entity. A taking also occurs if an owner is required to forego all economically beneficial use of his or her property. Clare v. Florissant Water & San. Dist., 879 P.2d 471 (Colo. App. 1994); Thompson v. City & County of Denver, 958 P.2d 525 (Colo. App. 1998); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

Physical taking of private property for public use need not be shown in order to entitle owner to compensation. Harrison v. Denver City Tramway Co., 54 Colo. 593, 131 P. 409 (1913).

As this section makes compensable both taking and damages inflicted by the state of Colorado or one of its agencies or constituent parts. Mosher v. City of Boulder, 225 F. Supp. 32 (D. Colo. 1964).

Purpose of inserting word "damaged" in this section was to add additional right of action. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1894).

And it encompasses results of improvements by eminent domain. The use of the word "damaged" in this section, in connection with the word "taken", indicates clearly that the damage contemplated was such as would result from the making of an improvement in which the right of eminent domain might be called into use. Bd. of Comm'rs v. Adler, 69 Colo. 290, 194 P. 621 (1920).

Intent of including the word "damaged" in this section was to grant relief to property owners who have been substantially damaged by the creation of public improvements abutting their lands, but whose land had not been physically taken by the government. Thompson v. City & County of Denver, 958 P.2d 525 (Colo. App. 1998).

A taking cannot result from simple negligence by a governmental entity. For governmental action to result in a taking, the taking must be a reasonably foreseeable consequence of an authorized action. The government must have the intent to take the property or to do an act that has the natural consequence of taking the property. Hence, the consequence of the action alleged to be a taking must be a "direct, natural, probable result of that action". Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

However, a governmental entity can be held liable for a taking even if the actual conduct complained of was performed by another person or entity. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

The two-pronged test of Trinity Broad. of Denver, Inc. v. City of Westminster, annotated above, is presented in the disjunctive, so it provides a property owner with two separate grounds for establishing a taking. The first prong focuses on the subjective intent of the defendant, while the second prong focuses on objective causation. Under the second prong, a property owner may prevail on an inverse condemnation claim by proving not that the governmental entity subjectively intended to effect a taking but that the government's action had the natural consequence of taking the property. Scott v. County of Custer, 178 P.3d 1240 (Colo. App. 2007).

Property may be damaged though land not appropriated. Although it has been said that property cannot be "taken", within the meaning of this section, except by an appropriation of the land itself, no such limitation is applicable to the clause relating to damages. Mollandin v. Union Pac. Ry., 14 F. 394 (D. Colo. 1882), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

Temporary taking differs from a permanent taking in that, once the period of the taking expires, the landowner's legal interest and occupation of the property are reestablished and the taking is for a definite period of time. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797 (Colo. 2001).

Just compensation must be paid for a temporary, as well as a permanent, taking. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd, 17 P.3d 797 (Colo. 2001).

Temporary taking differs from a permanent taking in that, once the period of the taking expires, the landowner's legal interest and occupation of the property are reestablished and the taking is for a definite period to time. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797 (Colo. 2001).

Property owner need not provide proof that public entity specifically authorized the precise invasion complained of; rather, property owner must establish that public entity's actions were more than mere negligence and that the use of the parcel was a direct, natural and probable result of actions that public entity specifically authorized its contractors to take. Record supports trial court's finding that use of particular parcel was not authorized by its owner and that public entity temporarily possessed the parcel for a period of 26 months. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd in part and rev'd in part on other grounds, 17 P.3d 797 (Colo. 2001).

In the case of a temporary taking, landowner is entitled to just compensation for fair rental value of property at its highest and best use, taking into consideration any existing land use restrictions, during the period of temporary taking. In determining fair rental value, the trial court and the jury must assume a free bargaining transaction between a hypothetical lessor and lessee. Changes in land use restrictions may only be considered if they probably could have occurred during the temporary taking period. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797 (Colo. 2001).

Mere ownership of wild game does not expose state to landowner crop loss. Landowners unquestionably possess a cognizable property interest in their crops and residues, but it does not follow, however, that mere state ownership of wild game exposes it to liability for wildlife-caused crop losses. Collopy v. Wildlife Comm'n, 625 P.2d 994 (Colo. 1981).

Right or interest in property must be impaired. It must appear that some right, or interest, whether public or private, pertaining to the property has been destroyed or impaired, before an action can be maintained. Harrison v. Denver City Tramway Co., 54 Colo. 593, 131 P. 409 (1913).

Damage sustained by owner must differ in kind from that suffered by public generally. Under this section the damage must be to the property or its appurtenances; or it must affect some right or interest which the owner enjoys in connection with the property, not shared or enjoyed by the public generally. The damage must differ in kind, not merely in degree. Gilbert v. Greeley, S.L. & Pac. Ry., 13 Colo. 501, 22 P. 814 (1889); Gayton v. Dept. of Hwys., 149 Colo. 72, 367 P.2d 899 (1962); Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969); Hayutin v. Colo. State Dept. of Hwys., 175 Colo. 83, 485 P.2d 896, cert. denied, 404 U.S. 991, 92 S. Ct. 553, 30 L. Ed. 2d 542 (1971); Thompson v. City & County of Denver, 958 P.2d 525 (Colo. App. 1998); Claassen v. City & County of Denver, 30 P.3d 710 (Colo. App. 2000).

For any injury and annoyance occasioned by an ordinary railroad, which are peculiar to an abutting owner, and not shared by the general public -- which affect his property and impair its value without injuring that of his neighbor -- he ought to receive compensation. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

Where an obstruction resulting from the laying of railroad tracks was not shown to affect ingress or egress from plaintiff's property and did not cause special damage different from that suffered in common by the general public, he may not recover for loss sustained. Gilbert v. Greeley, S.L. & Pac. Ry., 13 Colo. 501, 22 P. 814 (1889).

The annoyance, discomfort, and injury arising from the noise, exhaust pollutants, and vibrations that originate from flights of aircraft arriving and departing from Denver international airport are the same effects, except in degree, as suffered by the public in general; therefore, no compensable damage has occurred. Thompson v. City & County of Denver, 958 P.2d 525 (Colo. App. 1998).

A plaintiff is entitled to recovery in cases where the damages suffered are different in kind from those suffered by the general public, while a recovery is denied for those damages common to all. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1894).

The right disturbed must be a right enjoyed in connection with the property, not shared with the public generally, a right which gives it an additional value and by the disturbance of which the property itself is damaged. Harrison v. Denver City Tramway Co., 54 Colo. 593, 131 P. 409 (1913).

A nonabutting owner's right to recover has to rest upon an extension of the rule which permits recovery only when an owner can allege and prove special damage to his property which differs in kind, and not merely in degree, from that sustained by the public generally. The test is not whether the property abuts, but whether there is special injury. Radinsky v. City & County of Denver, 159 Colo. 134, 410 P.2d 644 (1966).

Where no compensable taking. Where a governmental entity has made no physical ouster of the owners from the property, and has not interfered in any way with the owners' power of disposition or use of the property, there has been no taking which would warrant compensation. Lipson v. Colo. State Dept. of Hwys., 41 Colo. App. 568, 588 P.2d 390 (1978); Colo. Springs v. Andersen Mahon Enters., 260 P.3d 29 (Colo. App. 2010).

Taking marijuana plants for evidence when the defendant alleges a defense under § 14 of article XVIII is not a taking under this section. Seizure or preservation of evidence is not a taking. Young v. Larimer County Sheriff's Office, 2 014 COA 119, 356 P.3d 939.

Municipal ordinance which imposed reasonable limitations on billboards on private property, thereby requiring modification of said billboards, did not constitute a taking for which just compensation must be paid. Nat'l Adver. v. Bd. of Adjustment of City & County of Denver, 800 P.2d 1349 (Colo. App. 1990).

Seizure of property under tax lien is not a taking. An exercise of the power to assess and collect taxes is distinguishable from the power to take private property for a public use under this section. Burtkin Assocs. v. Tipton, 845 P.2d 525 (Colo. 1993).

Property owners are not entitled to obtain the highest and best use of their property or to gain maximum profits from its use. Van Sickle v. Boyes, 797 P. 2 d 1 2 67 ( C olo. 1990); Nat'l Adver. v. Bd. of Adjustment of C ity & County of Denver, 800 P.2d 1349 (Colo. App. 1990); Colo. Health v. City & County of Denver, 2018 COA 135, 429 P.3d 115.

For purposes of calculating and modifying child support, trial court did not impermissibly interfere with husband's constitutional property rights by including in gross income an amount which a one-time post-decree inheritance could be expected to yield. In re Armstrong, 831 P.2d 501 (Colo. App. 1992).

Destruction of access to property compensable. The destruction or infringement of an easement or right of access appurtenant to a landowner's lots is a loss or damage different in kind from that suffered by the rest of the community, and for such damage compensation may be recovered under this section. City of Pueblo v. Strait, 20 Colo. 13, 36 P. 789 (1894); Denver Union Term. Ry. v. Glodt, 67 Colo. 115, 186 P. 904 (1919); Minnequa Lumber Co. v. City & County of Denver, 67 Colo. 472, 186 P. 539 (1919).

Whatever permanently prevents the adjacent owner's free use of the street for ingress or egress to or from his lot, and whatever interference with the street permanently diminishes the value of his premises, is as much a damage to his private property as though some direct physical injury were inflicted thereon. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883); City of Denver v. Vernia, 8 Colo. 399, 8 P. 656 (1885).

Right of access to and from a general street system must be substantially impaired, not merely inconvenienced, by modification of the system. Hayutin v. Colo. State Dept. of Hwys., 175 Colo. 83, 485 P.2d 896, cert. denied, 404 U.S. 991, 92 S. Ct. 533, 30 L. Ed. 2d 542 (1971).

A landowner could not recover for any general inconvenience occasioned by a complete blockade of the intersection by railway cars; but for the special and peculiar damage shown by the loss of the intersection which was sole access to plaintiff's street, he is entitled to compensation. Jackson v. Kiel, 13 Colo. 378, 22 P. 504 (1889).

Under this section where a landowner has no fee in the land occupied as a highway, but his land abuts on it, and he has rights therein not shared in common with the general public for purposes of travel and use, a person using or appropriating such highway or a portion of it for other and different purposes than the one contemplated, whereby the highway is obstructed and impaired as a means of ingress and egress, is liable to the abutting owner for any consequential damages arising from such appropriation and use depreciating the value of the property. Town of Longmont v. Parker, 14 Colo. 386, 23 P. 443 (1890); Radinsky v. City & County of Denver, 159 Colo. 134, 410 P.2d 644 (1966).

The general rule is that an abutting landowner is entitled to compensation for limitation or loss of access only if the limitation or loss substantially interferes with his means of ingress and egress to and from his property. State Dept. of Hwys. v. Davis, 626 P.2d 661 (Colo. 1981).

But partial loss of access is not compensable if landowner retains reasonable means of access to and from his property. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969); Thornton v. City of Colo. Springs, 173 Colo. 357, 478 P.2d 665 (1970); Shaklee v. Bd. of County Comm'rs, 176 Colo. 559, 491 P.2d 1366 (1971).

When a landowner has free and convenient access to his property and the improvements on it and his means of egress and ingress are not substantially interfered with by a limitation of access, he has no cause for complaint, nor is he entitled to any compensation. Shaklee v. Bd. of County Comm'rs, 176 Colo. 559, 491 P.2d 1366 (1971).

Factors to consider in determining whether or not there has been a compensable taking of access rights to a highway include whether the property is a single economic unit or consists of separate units with particular access needs, the use of the property, the location of improvements, the contiguity to the highway, the land's topography, and all pertinent characteristics of the property which may be relevant to its access needs. Shaklee v. Bd. of County Comm'rs, 176 Colo. 559, 491 P.2d 1366 (1971).

The fact that a municipality may under its police power interfere to a certain extent with access to and from premises does not mean necessarily that such interference constitutes a "taking" for which under amendments 5 and 14, U.S. Const., and under § 25 of art. II, Colo. Const., and this section there must be compensation. Rather, to constitute such a taking there must be an unreasonable or substantial deprivation of access. City of Boulder v. Kahn's, Inc., 190 Colo. 90, 543 P.2d 711 (1975).

Determination whether access has been substantially impaired is question of law and, thus, subject to review on appeal. State Dept. of Hwys. v. Davis, 626 P.2d 661 (Colo. 1981).

Inconvenience of less direct route not compensable. The inconvenience to a lot owner in having to adopt a less direct route to reach certain points from the construction of a freeway interchange is an injury of the same kind as that suffered by the general public. Radinsky v. City & County of Denver, 159 Colo. 134, 410 P.2d 644 (1966).

Mere inconvenience and mere circuity of route necessary for access or egress occasioned by a public improvement are not compensable items of damage. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969); Thornton v. City of Colo. Springs, 173 Colo. 357, 478 P.2d 665 (1970).

Where there is mere inconvenience resulting from a more circuitous route and from the diversion of traffic, diminution of value is not compensable. Thornton v. City of Colo. Springs, 173 Colo. 357, 478 P.2d 665 (1970).

Compensation is not permitted for damage caused by circuity of route where the properties involved were used for business purposes such as motels, restaurants, and gas stations, and where the inability of the traveling public to get to the property conveniently had, in effect, diminished the value of the business property. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969).

There is not a "taking" where pedestrians are deprived of the right to approach establishments after alighting from a vehicle on street in front of or near the establishments. City of Boulder v. Kahn's, Inc., 190 Colo. 90, 543 P.2d 711 (1975).

In determining whether there has been substantial interference with a landowner's access, inconvenience caused by the required use of a more circuitous route to gain access to property does not constitute substantial impairment of access. State Dept. of Hwys. v. Davis, 626 P.2d 661 (Colo. 1981).

Nor limiting access to specific points. There is no taking of private property which would be subject to compensation when a landowner's access rights to a state highway are limited to two access points of his own choosing. Shaklee v. Bd. of County Comm'rs, 176 Colo. 559, 491 P.2d 1366 (1971).

Access to a highway may not be unreasonably cut off without payment of compensation, but an owner is not entitled, as against the public, to access to his land at every point on the property line adjacent to the highway. Shaklee v. Bd. of County Comm'rs, 176 Colo. 559, 491 P.2d 1366 (1971).

No right to compensation found in case in which one of two access points to the public streets is taken by condemnation. Per se rule requiring compensation whenever a landowner's access to a particular street is completely taken is rejected. Dept. of Hwys. v. Interstate-Denver West, 791 P.2d 1119 (Colo. 1990).

Nor paying additional ton-mile taxes because of longer routes. As to plaintiffs' contention that they will have to pay additional ton-mile taxes because of the longer routes they must now follow--this is an inconvenience to be borne by all alike who are in the reasonably defined class. Asphalt Paving Co. v. Bd. of County Comm'rs, 162 Colo. 254, 425 P.2d 289 (1967).

Nor loss of business value by diversion of traffic. When vehicular traffic was routed away from improvements and business and onto the new highway, and the old highway remained in existence and use, the damage to market value of the business property by diversion of traffic is not compensable. No person has a vested right in the maintenance of the public highway in any particular place. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969).

Nor loss of view of property by public. Since a property owner has no right to have the traveling public pass his property, he has no right to have the traveling public afforded a clear view of his property. Loss of view from the property caused by the construction of a viaduct is not compensable. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969).

Motorists' visibility of property not a compensable right. Because a landowner has no continued right to traffic passing the property, the landowner likewise has no right in the continued motorists' visibility of the property from a transit corridor. Dept. of Transp. v. Marilyn Hickey Ministries, 159 P.3d 111 (Colo. 2007).

Construction of solid median does not violate right of access to and use of the entire roadway of abutting landowners. Thornton v. City of Colo. Springs, 173 Colo. 357, 478 P.2d 665 (1970).

Purchaser of land with indirect access entitled to damages arising subsequent to sale. In an inverse condemnation action by a landowner against the board of county commissioners and department of highways alleging confiscation of its right of access to and from freeway, the reviewing court concluded that plaintiff bought the property in question subject to a burden of indirect access to freeway and cannot now recover compensation for loss of such direct access; rather, it is limited in its recovery to damages that have arisen since it acquired the property. Majestic Heights Co. v. Bd. of County Comm'rs, 173 Colo. 178, 476 P.2d 745 (1970).

Possible right to damages for change of street grade. Under this section a municipality is liable for consequential damages to the owner of a lot abutting on the street on account of the raising or lowering of the grade of the street where such change of grade is unreasonable or has been negligently made. Leiper v. City & County of Denver, 36 Colo. 110, 85 P. 849 (1906).

Under this section where the grade of a street is established by a city and abutting lot owners improve their property in conformity with the established grade, the city is liable for damage to such property caused by a subsequent change of the grade of the street. City of Denver v. Bonesteel, 30 Colo. 107, 69 P. 595 (1902).

Where a city unlawfully attempts to delegate authority to establish street grades, an abutting lot owner was entitled to damages to property caused by reducing the level of the street except for property on the city's right-of-way. Gidley v. City of Colo. Springs, 160 Colo. 482, 418 P.2d 291 (1966).

Use of street damaged by construction of railroad. The use of a street is a right of property in the abutting property owner, which if not "taken" is certainly "damaged", within the meaning of this section, by the act of a railroad company in building its road through that street. Mollandin v. Union Pac. Ry., 14 F. 394 (D. Colo. 1882).

Where liable for damage by licensed subway. A city is liable for injuries occasioned to private property by the construction of a subway, in a public street, which allows passage by the public under the tracks of a railway company. The fact that the railway company constructs the improvement under license of the city does not change the result. Where an improvement is made for the benefit of the public the cost incurred should be generally distributed. City of Colo. Springs v. Stark, 57 Colo. 384, 140 P. 794 (1914).

Vacation of highway does not deprive one who dedicated plats. One dedicating highways to the public by filing plats showing highways located thereon is not unconstitutionally deprived of its property by § 43-2-302 which provides that upon vacation of the highway the title shall vest in the abutting owner. Buell v. Sears, Roebuck & Co., 205 F. Supp. 865 (D. Colo. 1962), aff'd, 321 F.2d 468 (10th Cir. 1963).

Excessive regulation deemed taking. While property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

Only when zoning is confiscatory does it rise to a "taking". Gold Run, Ltd. v. Bd. of County Comm'rs, 38 Colo. App. 44, 554 P.2d 317 (1976).

Zoning upheld where any reasonable or lawful use of property allowed. If the land in question is susceptible to any reasonable or lawful use under the classification imposed by a city, the ordinance will be allowed to stand. Bird v. City of Colo. Springs, 176 Colo. 32, 489 P.2d 324 (1971).

Proof that property was not suitable for any use under intermediate zoning categories must be had as a prerequisite to a determination that the property was being unconstitutionally confiscated. Bd. of County Comm'rs v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).

Zoning ordinances or regulations will not be declared unreasonable and arbitrary unless plainly and palpably so, or if enforced the consequent restrictions will preclude the use of the property for any purpose to which it is reasonably adapted, and if the reasonableness thereof is fairly debatable such ordinance must be upheld. Bird v. City of Colo. Springs, 176 Colo. 32, 489 P.2d 324 (1971).

So zoning which precludes all reasonable uses invalid. To sustain an attack upon the validity of the ordinance an aggrieved property owner must show that if the ordinance is enforced the subsequent restrictions upon his property preclude its use for any purpose to which it is reasonably adapted. Baum v. City & County of Denver, 147 Colo. 104, 363 P.2d 688 (1961).

Where the plaintiffs offered no evidence to prove that it was not possible to use and develop the property for any or all of the uses enumerated in the city's zoning ordinance, there was no showing that the city's zoning deprived the plaintiffs of their property without just compensation, nor without due process. Wright v. City of Littleton, 174 Colo. 318, 483 P.2d 953 (1971).

A zoning ordinance which amended the existing zoning and imposed a more restrictive classification on developers' property by changing the minimum lot size from one-half to two and one-half acres was held unconstitutional as applied to developers' property in that its enforcement would preclude the use of developers' property for any purpose to which it is reasonably adaptable and was therefore confiscatory. Trans-Robles Corp. v. City of Cherry Hills Vill., 30 Colo. App. 511, 497 P.2d 335 (1972), aff'd, 181 Colo. 356, 509 P.2d 797 (1973).

And restriction of legitimate, harmless use by zoning is deprivation. Where the provisions of a zoning ordinance do not deprive a party of title to his lots and do not oust him of possession, but do deprive him of the right to put his lots to a legitimate use which does not injure the public, without compensation or any provision therefor, the ordinance clearly deprives him of his property without compensation, and without due process of law. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

Under no circumstances can an ordinance amending the zoning map in a way that would deprive the owner of all economic use be upheld. City of Ft. Collins v. Dooney, 178 Colo. 25, 496 P.2d 316 (1972).

A city may not confiscate property under pretense of zoning. No power exists in a city to take private property for public use without compensation to the owner thereof, and it may not confiscate such property without compensation under the pretense of zoning. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

Owner's rights are same whether action is by city council or by people acting directly. The constitutional rights of a property owner are the same whether zoning is denied or granted by the action of the elected representatives of the people (city council) or by the people acting directly by initiative or referendum. City of Ft. Collins v. Dooney, 178 Colo. 25, 496 P.2d 316 (1972).

Effect of zoning ordinance on value of land for one use as compared with another not controlling. Accepting as a fact that land anywhere available for development for commercial purposes has a higher potential value than land restricted to residential use, the effect of the zoning ordinance on the value of plaintiffs' land for one use as compared to another is not the controlling or decisive factor. Baum v. City & County of Denver, 147 Colo. 104, 363 P.2d 688 (1961).

The fact that the plaintiff may have paid more than the land was worth under existing zoning in the hope of securing a zoning change is generally not a factor to be considered in the plaintiff's favor in analyzing a taking claim. Cottonwood Farms v. Bd. of County Comm'rs, 763 P.2d 551 (Colo. 1988).

The fact that state action diminishes the value of private property, or that the diminution is quantifiable with certainty, does not by itself command compensation. Dept. of Hwys. v. Interstate-Denver West, 791 P.2d 1119 (Colo. 1990).

Off-street parking requirements are not per se unconstitutional as taking of property without just compensation. In these days of environmental concern, it is not unconstitutional to require those who invite large numbers of people to their establishments--who in turn clog the streets, air, and ears of the citizens--to provide parking facilities so that automobiles may be placed in a stall and stilled. Stroud v. City of Aspen, 188 Colo. 1, 532 P.2d 720 (1975).

Improvement district cannot be deprived of right it does not have.