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. The taking of lots within improvement district by a housing authority and releasing them from the liens of the district's tax claims was no violation of the fifth amendment of the federal constitution, or this section, as the property which it is said was taken without compensation was a right to tax which the law never gave them. Moffat Tunnel Imp. Dist. v. Hous. Auth., 109 Colo. 357, 125 P.2d 138 (1942).

Sale of public utility's facilities constitutes taking. The public utilities commission (PUC) may order the lines frozen to present customers. But to order the sale of facilities would constitute a taking of property without just compensation. Pub. Utils. Comm'n v. Home Light & Power Co., 163 Colo. 72, 428 P.2d 928 (1967).

Condemnation of easement entitles owners to compensation for the easement and damages to the residue of their property. Madis v. Higginson, 164 Colo. 320, 434 P.2d 705 (1967).

But conveyance of easement was not taking. The limitation on plaintiffs' use of their property was brought about by their own voluntary act in giving the easement for the dam, rather than by the zoning ordinances. They gave the easement with complete knowledge of what uses they were giving up by making the conveyance and resulting damages to the residue. Madis v. Higginson, 164 Colo. 320, 434 P.2d 705 (1967).

Channeling water so as to overflow land not taking. The channeling of water from a higher area to a place contiguous to the land of the plaintiffs so as to overflow on the land of the plaintiffs does not constitute a taking within this constitutional provision. City of Englewood v. Linkenheil, 146 Colo. 493, 362 P.2d 186 (1961).

Flooding preventable at property owner's expense is not taking. No private property was "taken" when a county, at the request of property owners, designed and graded streets that resulted in some flooding of plaintiff's home, because there was neither a change in the use of the streets, nor a new appropriation of private property; and flooding which can be prevented at the expense of adjustments to the property by the property owner does not constitute a taking. Kratzenstein v. Bd. of County Comm'rs, 674 P.2d 1009 (Colo. App. 1983).

Water leaking from a municipal water system storage tank into groundwater, saturating the soil, and causing damage to the foundation of an adjacent building does not effect a taking because the leakage was not a direct, natural, or probable result of locating and operating a water storage tank where the tanks were located but instead an incidental and consequential injury inflicted by the municipality's operation of the water tanks. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993).

No triable issue of fact in inverse condemnation claim where building owner claimant failed to show any evidence that municipality intended to act, or refused to act, in such a way that the natural consequence of its acts would result in a taking of claimant's media center because municipality's water saturated the soil beneath the building. Trinity Broad. of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993).

Construction of drainage pipe not a taking. There was no taking of property by implementation of floodway restrictions after construction of underground flood control drainage pipe, where there was no flooding of property from time pipe was completed to time of trial, pipe resulted in thirty percent reduction of flood restrictions on property, only change in use of property was reduction of restrictions in favor of owners, and there was no new appropriation of private property. Morrison v. City of Aurora, 745 P.2d 1042 (Colo. App. 1987).

But diversion resulting in pollution of water compensable damage. When the game and fish commission diverted water from a creek and channeled it through a hatchery where it was so polluted as to render it unfit for the purposes to which it had theretofore been applied by plaintiffs, plaintiffs' property rights therein were destroyed or seriously damaged. Farmers Irrigation Co. v. Game & Fish Comm'n, 149 Colo. 318, 369 P.2d 557 (1962).

Confiscation of excess water. Strict application of the "used and useful" rule of water appropriation might operate to confiscate a utility's property without just compensation where the utility reasonably acquired excess water to guarantee future needs. Pub. Utils. Comm'n v. Northwest Water Corp., 168 Colo. 154, 451 P.2d 266 (1969).

A decree of abandonment of a water right is not a taking because water rights are usufructuary in nature. In re Revised Abandonment List, 2012 CO 35, 276 P.3d 571.

A valid state engineer well curtailment order is not a taking because a water right is always subject to the rights of senior water right owners and there is no compensable right to injure other vested water rights. Allowing the wells to divert without the depletions being replaced by a valid plan for augmentation or substitute water supply plan would injure other vested water rights. The fact that the wells' priority predates the 1969 water right adjudication legislation is irrelevant because the wells have always been subject to the constitution's provisions on prior appropriation. Kobobel v. State, 249 P.3d 1127 (Colo. 2011).

Self-inflicted hardship doctrine does not invariably prevent an owner who purchased property with knowledge of applicable zoning regulations from subsequently attacking the validity of those regulations on the ground that they effect an unconstitutional taking of the property. Cottonwood Farms v. Bd. of County Comm'rs, 763 P.2d 551 (Colo. 1988).

To show damage in a case for inverse condemnation plaintiff must show legal interference that substantially impairs his use or possession of the property and physical ouster is not necessary. City's unauthorized drilling and subsequent unauthorized and erroneous report on the coal content of plaintiff's land severely diminished the price plaintiff could get for his land and therefore constituted a taking by the city. Grynberg v. City of Northglenn, 829 P.2d 473 (Colo. App. 1991), rev'd on other grounds, 846 P.2d 175 (Colo. 1993).

Taking occurs when the actions of a governmental subdivision, in excluding a private competitor from the market, reduces a person's business to worthlessness. Clare v. Florissant Water & Sanitation Dist., 879 P.2d 471 (Colo. App. 1994).

If business owner's equipment or physical property cannot be removed from the exclusive service area of a special district where the business owner may no longer compete, the district has, as a practical matter, condemned those facilities. Clare v. Florissant Water & Sanitation Dist., 879 P.2d 471 (Colo. App. 1994).

The regional transportation authority damaged landowner's property within the meaning of this section. The regional transportation authority's construction, which directly relied on landowner's property for lateral support, substantially increased the cost of excavating landowner's property and substantially deprived landowner of the use and enjoyment of his property. Sos v. Roaring Fork, 2 017 COA 14 2 , __ P.3d __.

Absent a physical invasion into the airspace above property that is below the navigable airspace, there can be no physical taking. Claassen v. City & County of Denver, 30 P.3d 710 (Colo. App. 2000).

Temporary limitation or interim regulation on property use, resulting from the otherwise good faith, reasonable institution of a moratorium in order to bring about effective governmental decision making does not result in a categorical taking. Williams v. City of Central, 907 P.2d 701 (Colo. App. 1995).

In determining whether a temporary, non-categorical taking entitles the owner to compensation, the court must consider the character of the challenged governmental action, its economic impact, and the extent to which the regulation has interfered with the reasonable investment-backed expectations of the landowner. Williams v. City of Central, 907 P.2d 701 (Colo. App. 1995).

Application of city ordinance requiring relocation underground of overhead electricity and communications facilities by owners and operators at their own cost did not constitute a taking of telecommunications provider's property where its franchise was subject to the city's reasonable exercise of police power and to future regulations governing the location of the provider's facilities in the interest of the public health and welfare. U S West Commc'ns v. City of Longmont, 924 P.2d 1071 (Colo. App. 1995), aff'd on other grounds, 948 P.2d 509 (Colo. 1997).

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 an unconstitutional "taking" of the loan collateral under the fifth amendment to the United States Constitution and the constitution of the state of Colorado. The property interest impairment arises from a valid state regulation and does not rise to the level of a taking requiring just compensation. In re Larsen, 260 B.R. 174 (Bankr. D. Colo. 2001).

The PUC's award of attorney fees was not quasi-legislative, did not have an unreasonable economic impact, and did not interfere with any reasonable economic expectation; therefore, the award was not a taking. Lake Durango Water Co. v. Pub. Utils. Comm'n, 67 P.3d 12 (Colo. 2003).

IV. JUST COMPENSATION.

A. Measure of Compensation.

Provision for just compensation was designed for benefit of landowner and should be construed so as to give him its benefit to the full extent. Keller v. Miller, 63 Colo. 304, 165 P. 774 (1917).

Primary objective of condemnation proceedings is to satisfy the constitutional guaranty of just compensation and damages to the owner of private property taken for public use. Denver Joint Stock Land Bank v. Bd. of County Comm'rs, 105 Colo. 366, 98 P.2d 283 (1940).

General assembly may provide manner of determining compensation due. When the right to take is asserted and adjudged, the question of compensation, a matter entirely independent of the right, still remains for determination. The general assembly may provide under what circumstances and in what manner this compensation shall be determined. Colo. Midland Ry. v. Jones, 29 F. 193 (D. Colo. 1886).

Similar rules in damage suits and condemnation proceedings. This section is inseparably connected with the exercise of the power of eminent domain, and in suits for damages similar rules and tests, so far as applicable, should be applied as in condemnation proceedings. Middelkamp v. Bessemer Irrigating Co., 46 Colo. 102, 103 P. 280 (1909).

But not necessarily measure of damages. Plaintiffs, in demanding relief in the form of damages covering the loss sustained by them, are not forced to accept the measure of damages usually applicable to a condemnation case. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

Public should make good loss to individual occasioned by public improvement. Under this section when it became necessary to inflict damage upon private property in connection with public improvements, the public should make good the loss to the individual. City of Ft. Collins v. Wallace, 23 Colo. App. 452, 130 P. 69 (1913).

Owner entitled to just, not token, compensation. Under this section it is not token that the landowner is entitled to receive; it is just compensation. Swift v. Smith, 119 Colo. 126, 201 P.2d 609 (1948).

General rule is that assessment of damages should include all damages arising to the owner of land from any and every physical effect produced by the construction and use of the canal, if constructed according to the provisions of the statute and with proper care and skill, whether they are damages to be clearly seen and easily estimated, or are uncertain and of doubtful result (except such as result from its negligent construction or use). Middelkamp v. Bessemer Irrigating Co., 46 Colo. 102, 103 P. 280 (1909).

Just compensation equals value of the loss sustained. The just compensation required by this section to be made to the owner is the loss sustained by him by the appropriation. He is entitled to receive the value of what he has been deprived of, and nothing more. Alexander v. City & County of Denver, 51 Colo. 140, 116 P. 342 (1911).

The measure of compensation is the actual diminution in the market value of the premises, for any use to which they may reasonably be put, occasioned by the construction and operation of the railroad through the adjacent street. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

While the authorities differ as to the rule for the ascertainment of damages due to damaged property rights under varying circumstances, it is everywhere admitted that the rule to be applied should be such as will enable the jury to determine, as near as may be, the actual loss suffered. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

The phrase "just compensation" as applied to eminent domain has been commonly defined as payment to the owner of the fair and reasonable market value of his property. Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362, 436 P.2d 659 (1967).

Not value to taker. In a condemnation action the question is, what has the owner lost, not what has the taker gained. Thus value to the taker, or to his neighbors, must be rejected as the measure of compensation. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

When a portion of a landowner's property is taken for public use, just compensation includes payment for the portion actually taken and compensation for injury to the remainder of the property. La Plata Elec. Ass'n v. Cummings, 728 P.2d 696 (Colo. 1986); E-470 Pub. Hwy. Auth. v. 455 Co., 983 P.2d 149 (Colo. App. 1999), aff'd, 3 P.3d 18 (Colo. 2000); Story v. Bly, 217 P.3d 872 (Colo. App. 2008), aff'd, 241 P.3d 529 (Colo. 2010).

Market value ordinarily means the price the property would bring if sold in the open market under ordinary and usual circumstances, for cash, assuming that the owner is willing to sell and the purchaser willing to buy, but neither under any obligation to do so. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

Major factors to be considered in determining market value of real estate in condemnation proceedings are: (a) A view of the premises and their surroundings; (b) a description of the physical characteristics of the property and its situation in relation to points of importance in the neighborhood; (c) the price at which the land was bought, if sufficiently recent to throw light on present value; (d) the price at which similar neighboring land has sold at about the time of the taking; (e) the opinion of competent experts; (f) a consideration of the uses for which the land is adapted and for which it is available; (g) the cost of the improvements if they are such as to increase the value of the land; and (h) the net income from the land, if the property is devoted to one of the uses to which it could be most advantageously and profitably applied. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

If there exists a reasonable probability that land taken by a condemning authority would have been rezoned in the future, so that land could later have been devoted to uses that present zoning would not allow, such probability would likely affect the present value that a willing seller and a willing buyer would place upon the property. As such, the probability of rezoning may be considered by the commissioners insofar as it would reasonably be reflected in present market value. Stark v. Poudre Sch. Dist. R-1, 192 Colo. 396, 560 P.2d 77 (1977); Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd, 17 P.3d 797 (Colo. 2001).

In applying this rule, it is improper to evaluate the subject property by assuming that the subject property is not presently subject to pertinent use restrictions. Rather, it is only to the extent that the prospect of future additional uses for the property has an influence upon its present market value that such prospect is relevant. 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).

If a condemning authority takes a permanent interest in the property, the transaction resembles the sale of an interest in the property. In such cases, the value of the estate transferred may be influenced, in part, by the probability that the transferee will be able to use the property in the future for purposes for which it cannot presently be used. In contrast, a temporary taking of a parcel resembles the creation of a leasehold interest in the condemning authority more than it does the conveyance of a permanent estate to it. Consequently, the standard that should be used in determining the compensation due an owner for a temporary taking is the fair rental value of the property during the time the condemning authority possessed it. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd, 17 P.3d 797 (Colo. 2001).

Evidence that the floodplain restrictions in effect during the time of the temporary taking of the subject parcel might be removed sometime in the future could have no impact upon the parcel's fair rental value during the time of possession. Accordingly, evidence with respect to this subject should not have been considered for any purpose in determining the proper compensation to be paid to the owner for the temporary taking of the parcel. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd, 17 P.3d 797 (Colo. 2001).

Evidence of sales of comparable property. In determining the fair market value of real property in condemnation, i.e., that which an owner willing, but not compelled to sell, will take, and what a buyer willing, but not compelled to buy, will give for such property, the best evidence is found in sales of comparable property within a reasonable time before the taking. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

Fair compensation in condemnation cases does not include speculative values either lowering or raising the compensation to be paid. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

Just compensation cannot include any increment arising from the very fact of acquisition of the subject property. If the land were sold in the open market under ordinary and usual circumstances, factors relating to public acquisition would have to be excluded from consideration. In such a case there would be no condemnation at issue. Williams v. City & County of Denver, 147 Colo. 195, 363 P.2d 171 (1961).

And goodwill and profits are not regarded as elements of just compensation under either the due process or just compensation clauses of the federal and state constitutions. Auraria Businessmen Against Confiscation, Inc. v. Denver Urban Renewal Auth., 183 Colo. 441, 517 P.2d 845 (1974).

"Just compensation" includes payment of costs. The phrase "just compensation" in this section has been interpreted to mean not only payment to the owner of the market value of his property, but also payment of his costs. Denver Urban Renewal Auth. v. Hayutin, 40 Colo. App. 559, 583 P.2d 296 (1978).

The loss sustained to property rights which have been damaged by the state necessarily includes out-of-pocket expenses incurred by those suffering the damage in an effort to avoid the consequences of the defendants' acts resulting in the loss. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

In condemnation proceedings, the landowner is entitled to compensation for all reasonable costs incurred. Expenses necessarily incurred by reason of the litigation are correctly viewed as such costs. City of Colo. Springs v. Berl, 658 P.2d 280 (Colo. App. 1982).

And inconvenience factors are elements of damage. The inconvenience, discomfort and annoyance occasioned by the pollution of the domestic water supply of various of the plaintiffs is a factor to be taken into consideration by the trial court. The trial court should make a reasonable allowance on account of the foregoing elements of damage. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

Property owner is entitled to additional compensation for physical damage to surface of parcel that was temporarily taken. Absent special circumstances, it is the difference in market value and not the cost of restoration that is the proper measure for compensation. A court may deviate from this standard if conditions exist that would render the award of compensation under this standard unfair or inappropriate. However, any court authorizing such a deviation must be careful to assure that the damages awarded are not a windfall to the landowner and, in any case, must articulate the reasons for its decision so as to facilitate effective appellate review. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 992 P.2d 1188 (Colo. App. 1999), aff'd, 17 P.3d 797 (Colo. 2001).

Where the damage done was susceptible to repair at a reasonably certain cost based on bids placed into evidence, the owner was entitled to the amount awarded by the jury upon such evidence. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797 (Colo. 2001).

But attorney fees are not allowed as costs in condemnation actions, and in such cases, are not an element of just compensation. Denver Urban Renewal Auth. v. Hayutin, 40 Colo. App. 559, 583 P.2d 296 (1978).

Nor expenses incurred presenting case. "Costs", as an element of just compensation, includes only those items usually taxed as costs and does not include any and all expenses which an owner may see fit to incur in preparing for and in presenting his side of the case. Denver Urban Renewal Auth. v. Hayutin, 40 Colo. App. 559, 583 P.2d 296 (1978).

Failure to compensate where imminent necessity. When property is taken by the state or one of its political subdivisions under circumstances of imminent necessity, the failure justly to compensate the owner does not violate this section. Srb v. Bd. of County Comm'rs, 43 Colo. App. 14, 601 P.2d 1082 (1979).

State highway department held to have discharged its obligation. Where the state highway department paid into court the amount of an award in condemnation proceedings, it discharged its obligation and was relieved of further responsibility for an unpaid city tax lien assessed for the creation of a local public improvement district. Southworth v. Dept. of Hwys., 176 Colo. 82, 489 P.2d 204 (1971).

Extent of coal reserves prior to city's unauthorized drilling and subsequent unauthorized erroneous report which severely diminished the value of those reserves and what a willing purchaser would have paid for the property at the time it was damaged was proper measure of damages. Grynberg v. City of Northglenn, 829 P.2d 473 (Colo. App. 1991).

Requiring owners of condemned land to pay the city's costs under the offer of settlement provision of § 13-17-202 violates the owners' constitutional right to just compensation as determined by a jury or board of commissioners. City of Westminster v. Hart, 928 P.2d 758 (Colo. App. 1996).

All evidence relevant to the determination of the present market value of condemned property is admissible, including evidence of the most advantageous potential future use of the entire property, even if the condemned property would need to be dedicated as part of annexation and rezoning of the entire property in the future. Palizzi v. City of Brighton, 228 P.3d 957 (Colo. 2010).

Evidence of the value of the condemned portion as a part of the whole is admissible and should be evaluated by the fact finder when determining just compensation. Palizzi v. City of Brighton, 228 P.3d 957 (Colo. 2010).

Trial court erred in excluding estimate of the construction cost of a new driveway as evidence relevant to the determination of the value of a nonexclusive access easement over an existing driveway, but failure to admit such evidence was not an abuse of discretion warranting reversal of the trial court's decision where it could not be said with fair assurance that the error substantially influenced the jury's determination of easement value or impaired the basic fairness of the trial. Bly v. Story, 241 P.3d 529 (Colo. 2010).

The cost of restoration, not diminution in value, was the proper measure of damages. The alleged injury concerned landowner's dominion over, and ability to use and enjoy, the land for property access, equipment storage, and snow maintenance; it did not concern lost profits or any other injury not independently compensable. Sos v. Roaring Fork, 2 017 COA 14 2 , __ P.3d __.

B. Procedure.

Procedure not limitation on protection. The first sentence of this section prohibiting taking or damaging of private property without just compensation is in no way limited by the following provisions which prescribe the procedure in the appropriation of private property to a public use. Bd. of Comm'rs v. Adler, 69 Colo. 290, 194 P. 621 (1920).

Constitutional objections to eminent domain proceedings should be raised in those proceedings and be determined by the court in limine and not by way of a collateral injunction proceeding. Auraria Businessmen Against Confiscation, Inc. v. Denver Urban Renewal Auth., 183 Colo. 441, 517 P.2d 845 (1974).

This section is consent by state to bringing of suits against county, for damages to property incurred by the construction of county projects. Bd. of Comm'rs v. Adler, 69 Colo. 290, 194 P. 621 (1920).

But not consent to suit against state. While this section imposes a liability on the state for an uncompensated injury or taking, it does not constitute a consent by the state to a suit against it to enforce such liability and such consent is not given by the eminent domain authority of the state highway board under § 43-1-208. Colo. ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

Right of action not taken away by governmental immunity. A "right of action" cannot be unconstitutionally taken away or damaged by the application of sovereign immunity to a tort claim, since there is no "right" in the absence of a statute granting such. Abeyta v. City & County of Denver, 165 Colo. 58, 437 P.2d 67 (1968).

As just compensation clause creates exception to doctrine of governmental immunity. Srb v. Bd. of County Comm'rs, 43 Colo. App. 14, 601 P.2d 1082 (1979).

Individual or agency inflicting damage responsible for loss. Whosoever damages the property of another, whether he be an individual or an agency of the state, must be held responsible in damages for the loss caused thereby. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

If, in the execution of any power, no matter what it is, the government, federal or state, finds it necessary to take private property for public use, it must obey the constitutional injunction to make or secure just compensation to the owner. City & County of Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (1959).

Board of directors of an irrigation district must pay for all lands acquired under the authority of § 37-41-114. San Luis Valley Irrigation Dist. v. Noffsinger, 85 Colo. 202, 274 P. 827 (1929).

Unlawful taking not act of state. When a state agency enters upon land or injures land within the meaning of this section without paying just compensation therefor, or without having commenced condemnation proceedings to ascertain the compensation due for the taking or injury, the act of the state agency is unauthorized and unlawful and is not the act of the state of Colorado. Colo. ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

And remedy lies against individual state officer. The remedy in Colorado for an unauthorized and unlawful taking or injury of private land for public use without compensation by a state agency is against the state officer, individually, to prevent his unlawful act or for appropriate redress if it has been consummated. Colo. ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

Action lies despite claim of immunity. Notwithstanding a claim of sovereign immunity from a suit for damages resulting from the torts of agents of the state, upon a showing that the water rights of plaintiffs had been taken or damaged by the game and fish commission through pollution of the water, plaintiffs were entitled to relief in the form of "just compensation" for the property so taken or damaged, and to injunctive relief against a continuance thereof. Farmers Irrigation Co. v. Game & Fish Comm'n, 149 Colo. 318, 369 P.2d 557 (1962).

Action for damages for taking of property right is personal to owner for the property in question, unless it is specifically assigned to the grantee of the property. Majestic Heights Co. v. Bd. of County Comm'rs, 173 Colo. 178, 476 P.2d 745 (1970).

The right to compensation for the value of land taken and damages to the residue is a personal one belonging to the owner which does not pass by deed, and where there is no evidence that purchaser ever acquired such right by assignment from the owner, he takes the land in the condition it was in when he acquired title and his right in this action is limited to the damages, if any, which have since accrued. Majestic Heights Co. v. Bd. of County Comm'rs, 173 Colo. 178, 476 P.2d 745 (1970); Enke v. City of Greeley, 31 Colo. App. 337, 504 P.2d 1112 (1972).

But change of form of res does not affect rights of owner. In a condemnation proceeding when the condemnor pays the amount of the award for the condemned property into the registry of the court, the change of the form of the res from property to money does not affect the relative rights of the owner and other claimants in the res. Southworth v. Dept. of Hwys., 176 Colo. 82, 489 P.2d 204 (1971).

For injuries to property of abutting landowners, single recovery can be had for the whole damage to result from the act. City of Denver v. Bayer, 7 Colo. 113, 2 P. 6 (1883).

Jury or board of commissioners must ascertain damages. By the terms of this section the compensation for taking or damaging private property against the owner's consent must be ascertained by a jury or board of commissioners; this requirement is imperative, and the general assembly is powerless to dispense with it. Trippe v. Overacker, 7 Colo. 72, 1 P. 695 (1883).

But party cannot have damages assessed by both. Under this section and the eminent domain act, defendant in an eminent domain proceeding is not entitled to have his damages assessed twice, first by a commission, and then by a jury. Where a jury trial is allowed, it is in lieu of an assessment of damages by a commission. Snider v. Town of Platteville, 75 Colo. 589, 227 P. 548 (1924).

Stipulation reserving compensable nature of property for determination by court and board of commissioners. Where urban renewal authority elects to enter into a stipulation which reserves for determination by a court and board of commissioners the compensable nature of property, it could not now complain that the award of compensation was made in proceedings conducted consistent with that stipulation. Denver Urban Renewal Auth. v. Steiner Am. Corp., 31 Colo. App. 125, 500 P.2d 983 (1972).

Provision for jury at request of party other than owner would contravene express terms of section. Sw. Land Co. v. Hickory Jackson Ditch Co., 18 Colo. 489, 33 P. 275 (1893).

Jury of freeholders held not waived. Where, although the owner of property involved in a condemnation proceeding requested merely a "jury of six" and the trial court attempted to qualify the jury as freeholders, a juror did not hear the question and thus it was not discovered that he was not a freeholder, there is no waiver of a jury made up of freeholders. The case must be retried before a properly constituted jury. State Dept. of Hwys. v. Ogden, 638 P.2d 832 (Colo. App. 1981).

Landowners waived constitutional right to have just compensation determined by a jury of freeholders. Having agreed to entry of directed verdict and to dismiss jury before any valuation evidence could be considered by it, landowners waived their constitutional rights to have a jury determine just compensation for their properties. Sinclair Transp. Co. v. Sandberg, 228 P.3d 198 (Colo. App. 2009), rev'd on other grounds sub nom. Larson v. Sinclair Transp. Co., 2012 CO 36, 284 P.3d 42.

Party seeking to condemn property must pay costs of ascertaining damages. If the parties cannot agree upon the amount of just compensation, it must be ascertained in the manner provided by law. The duty of ascertaining the amount is necessarily cast upon the party seeking to condemn the property, and he should pay all the expenses which attach to the process. Any law which casts this burden upon the owner should be held to be unconstitutional and void. Keller v. Miller, 63 Colo. 304, 165 P. 774 (1917); Sw. Land Co. v. Hickory Jackson Ditch Co., 18 Colo. 489, 33 P. 275 (1893).

An owner whose property is sought to be taken cannot be required to pay any portion of his reasonable costs necessarily incidental to the trial of the issues on his part, or any part of the costs of the plaintiff; for to require him to do this would reduce the just compensation awarded by the jury by a sum equal to that paid by him for such costs. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1891); Keller v. Miller, 63 Colo. 304, 165 P. 774 (1917); Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362, 436 P.2d 659 (1967).

This section guarantees the owner a jury trial for ascertaining the value of the land taken and the damages to the residue, and if any part of such costs is taxed to him, his just compensation will be reduced equal to the amount he has to pay out for a jury, and that amounts to depriving him to that extent of the guaranteed just compensation. Wassenich v. City & County of Denver, 67 Colo. 456, 186 P. 533 (1919); Dept. of Hwys. v. Kelley, 151 Colo. 517, 379 P.2d 386 (1963).

But attorney fees not recoverable as costs. The constitution clearly covers only the class of expenses usually taxed as costs. Attorney fees do not fall within that category. Dolores No. 2 Land & Canal Co. v. Hartman, 17 Colo. 138, 29 P. 378 (1891); Leadville Water Co. v. Parkville Water Dist., 164 Colo. 362, 436 P.2d 659 (1967); City of Holyoke v. Schlachter Farms R.L.L.P., 22 P.3d 960 (Colo. App. 2001).

Attorney fees are not included within the meaning of "costs" as applied to this section and are not recoverable in eminent domain proceedings. Dept. of Hwys. v. Intermountain Term. Co., 164 Colo. 354, 435 P.2d 391 (1967).

Adding interest to sum found by jury. When there is nothing in the record from which it can be definitely ascertained that the jury did not take into consideration the question of interest in fixing the amount of their verdict in a condemnation proceeding, even if no instructions in regard to interest were given, the supreme court cannot add interest to the sum found by the jury and the refusal to do so does not contravene this section. Fishel v. City & County of Denver, 106 Colo. 576, 108 P.2d 236 (1940).

Compensation must be made in money. This section and the eminent domain act contemplate a compensation in money to one whose lands are condemned for railroad purposes. Burlington & C. R. R. v. Schweikart, 10 Colo. 178, 14 P. 329 (1887).

This section contemplates compensation to the landowner in money. That is conclusive upon the courts. Great W. Ry. v. Ackroyd, 44 Colo. 454, 98 P. 726 (1908).

Application of § 40-9.5-204, which sets forth a formula for compensating a cooperative electric association whose service territory is taken by a municipality does not violate this section. Such section simply provides a jury under this section with parameters for determining just compensation. Poudre Valley Rural Elec. v. Loveland, 807 P.2d 547 (Colo. 1991).

Judgment for assessment of damages in condemnation proceedings is final and conclusive, and the owner of the land cannot maintain a subsequent action for damages which should have been, but were not, considered or assessed by the jury. Middelkamp v. Bessemer Irrigating Co., 46 Colo. 102, 103 P. 280 (1909).

Money to be paid or deposited before property disturbed. Until the compensation ascertained in one of the two ways provided shall have been first paid or deposited, the title or proprietary rights of the owner cannot be divested, nor can the property be needlessly disturbed. McClain v. People, 9 Colo. 190, 11 P. 85 (1886).

The owner is entitled to receive compensation for property taken for public use before his property is taken or his possession disturbed. Keller v. Miller, 63 Colo. 304, 165 P. 774 (1917).

Although prior payment unnecessary if disturbance necessary. The insertion of the provision relating to needless disturbances of property in this section is a recognition of the fact that there may be needful disturbances thereof; also that such needful disturbances may take place without the prior payment or deposit of compensation ascertained in one of the two methods designated. McClain v. People, 9 Colo. 190, 193, 11 P. 85 (1886).

And necessity determined by general assembly. As to what needful disturbances are, the constitution is silent; therefore the duty of naming them must have been left with the general assembly to recognize, in some general way, a class or classes of disturbances which might be needful in particular cases. McClain v. People, 9 Colo. 190, 11 P. 85 (1886).

Thus statutes may validly provide for preliminary possession of property. San Luis Land, Canal & Imp. Co. v. Kenilworth Canal Co., 3 Colo. App. 244, 32 P. 860 (1893).

Under § 38-1-105(6) the general assembly has determined that, in some instances, the occupancy and use of premises by petitioner, pending condemnation proceedings, may be needful disturbances, within the meaning of the constitution. The exclusive possession and enjoyment of property are undoubtedly "proprietary rights"; but by this statute these rights are not "divested"--they are merely suspended. Every disturbance of property almost of necessity involves the interference with some proprietary right--in many cases the temporary suspension thereof. McClain v. People, 9 Colo. 190, 11 P. 85 (1886).

But court has discretion in particular cases. The use of the word "needlessly" in § 38-1-105 providing for preliminary possession, implies an investigation of some sort. A disturbance which in one case might be deemed needful, in another might, with equal propriety, be adjudged needless. But it is clearly impossible for the general assembly to sit in judgment upon each particular case, and ascertain whether or not the various disturbances sought are needful. While that body has determined that a preliminary possession and use may be a needful disturbance, it has delegated to certain courts, and the judges thereof, the duty of passing upon this question in particular cases as they arise. The statutory expression in section 38-1-105(6) that "the court by rule, may authorize the petitioner to take possession", confers upon the court a discretionary power; and the word "may" does not mean "shall". McClain v. People, 9 Colo. 190, 11 P. 85 (1886).

Injunction improper where damages provide adequate remedy. Courts will not enjoin the vacation of a street until an abutting property owner has been compensated for his damage for loss of access where access is available by another public road, such owner having an adequate remedy at law for damages. City of Colo. Springs v. Crumb, 148 Colo. 32, 364 P.2d 1053 (1961).

Or where possession before payment authorized. Where the only property right which will be impaired by vacation of a street is the easement or right of ingress and egress to and from an abutting owner's premises, the abutting owner cannot enjoin the vacation merely because damages are not compensated in advance, if the city be acting under sufficient legislative municipal authority. City of Colo. Springs v. Crumb, 148 Colo. 32, 364 P.2d 1053 (1961).

Injunctive relief is an appropriate remedy to prevent pollution and contamination of stream to the injury of appropriators of water from that stream. Game & Fish Comm'n v. Farmers Irrigation Co., 162 Colo. 301, 426 P.2d 562 (1967).

Mandamus will not lie to compel bringing of condemnation proceedings by state agency for the unauthorized act of the state agency in taking or injuring property without the payment of compensation therefor and without first bringing condemnation proceedings to determine the amount of compensation due, because to do so would be to require the state to take affirmative action in the exercise of its sovereign power of eminent domain. Colo. ex rel. Watrous v. District Court of United States, 207 F.2d 50 (10th Cir. 1953).

Burden of proof. In order for plaintiff to be compensated for loss of access it was incumbent upon her to establish to the satisfaction of the trial court that she no longer retains a reasonable means of access to and from her property and the general system of public streets. The property owner has the burden of proof with regard to establishing the existence of damages and the amount of compensation therefor. Troiano v. Colo. Dept. of Hwys., 170 Colo. 484, 463 P.2d 448 (1969).

In order for there to be a taking, the burden rests upon the landowner to show that he has been deprived of all reasonable uses of his land. Bird v. City of Colo. Springs, 176 Colo. 32, 489 P.2d 324 (1971).

Burden rests upon the owner to establish by competent evidence his right to substantial compensation. United States v. 25.02 Acres of Land, More or Less, 495 F.2d 1398 (10th Cir. 1974).

Where a solid median strip across a roadway has been constructed, in order to be compensated for loss of access to the roadway, a claimant must establish that a reasonable means of access to and from her property no longer exists. Thornton v. City of Colo. Springs, 173 Colo. 357, 478 P.2d 665 (1970).

Zoning ordinances, like other legislative enactments, are presumed to be valid, and anyone alleging the invalidity of a zoning ordinance has the burden of proving it beyond a reasonable doubt. Bd. of County Comm'rs v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).

Burden not met. Where contentions regarding the actions of a zoning board were debatable and where there was no showing that the property was not suitable for use under intermediate zoning categories, the burden of proving the invalidity of a zoning ordinance beyond a reasonable doubt was not met. Bd. of County Comm'rs v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).

Passage of initiated measure amending a city charter by requiring voter approval of location and siting of preparole facility did not divest developers of vested property right but suspended the developer's unqualified fulfillment of that right pending an affirmative vote of the county electorate. Villa at Greeley, Inc. v. Hopper, 917 P.2d 350 (Colo. App. 1996).

I. GENERAL CONSIDERATION.

Law reviews. For article, "Report of the Denver Bar Association's C ommittee on the Administration of C riminal Justice in Colorado", see 2 Den. B. Ass'n Rec. 2 (Feb. 1 9 25). For note, "Right of a Federal Prisoner to a Speedy Trial on a State Charge", see 12 Rocky Mt. L. Rev. 214 (1 9 40). For note, "A Non-Judicial Dissent to Amendment of Canon 35", see 34 Dicta 55 (1957). For article, "One Year Review of Criminal Law and Procedure", see 35 Dicta 26 (1958). For article, "Municipal Penal Ordinances in Colorado", see 30 Rocky Mt. L. Rev. 267 (1958). For article, "Incriminating Evidence: What to do With a Hot Potato", see 11 Colo. Law. 880 (1982). For article, "Some Observations on the Swinging Courthouse Doors of Gannett and Richmond Newspapers", see 59 Den. L.J. 721 (1982). For article, "Standards of Effectiveness of Criminal Counsel", see 12 Colo. Law. 264 (1983). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with rights of accused, see 63 Den. U. L. Rev. 343 (1986). For a discussion of Tenth Circuit decisions dealing with criminal procedure, see 66 Den. U. L. Rev. 739 (1989). For a discussion of Tenth Circuit decisions dealing with questions of criminal procedure, see 67 Den. U. L. Rev. 701 (1990). For article, "Crawford at Two: Testimonial Hearsay and the Confrontation Clause", see 35 Colo. Law. 47 (May 2006). For article, "Pro Se Defendants and the Appointment of Advisory Counsel", see 35 Colo. Law. 29 (Dec. 2006). For article, "Judicial Restrictions on Voir Dire: Have We Gone Too Far?", see 97 Denv. L. Rev. 327 (2020).

Annotator's notes. (1) In People v. Parada, 188 Colo. 230, 533 P.2d 1121 (1975), the Colorado supreme court determined that the United States supreme court, in Miranda v. Arizona, 384 U.S. 436 (1966), substituted a "custodial interrogation" requirement for the "focus of the investigation" test which had been enunciated in the Escobedo case.

(2) For other annotations concerning legal counsel for the indigent, see § 18-1-403 and Crim. P. 44. For other annotations concerning speedy trials, see § 18-1-405 and Crim. P. 48.

This section is congruent to the sixth amendment to the United States Constitution. Lucero v. People, 173 Colo. 94, 476 P.2d 257 (1970).

Defendant's guilty plea was unconstitutional since he was illiterate, was told by the interpreter to sign the plea advisement form without having it read to him, had difficulty hearing the interpreter during the plea hearing, was pro se, and lacked the knowledge or understanding of the criminal justice system and process. The guilty plea was not made based on a voluntary and intelligent choice among alternative courses of action. Sanchez-Martinez v. People, 250 P.3d 1248 (Colo. 2011).

The terms "criminal prosecution" and "criminal cases", as used in the constitution, refer to cases which, at the time of the adoption of the constitution, were recognized as criminal or cases which are thereafter made criminal by statute. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910 (1970).

This section does not apply to contempt proceedings either of a civil or criminal nature. Wyatt v. People, 17 Colo. 252, 28 P. 961 (1892); People ex rel. Attorney Gen. v. News-Times Publ'g Co., 35 Colo. 253, 84 P. 912 (1906), appeal dismissed for lack of jurisdiction, 205 U.S. 454 (1907); Guiraud v. Nevada Canal Co., 79 Colo. 289, 245 P. 485 (1926).

This section confers rights for the benefit of accused. The provisions of this section to the effect that in criminal prosecutions the accused shall have the right to "a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed", confer a right solely for the benefit of the accused. Vigil v. People, 135 Colo. 313, 310 P.2d 552 (1957).

And such rights may be waived. The right to trial by jury, the right to counsel, the right not to incriminate one's self, and related matters are known as alienable constitutional rights or as rights in the nature of personal privilege for the benefit of the person who may seek their protection. Such rights, whenever assertable, may be waived. Geer v. Alaniz, 138 Colo. 177, 331 P.2d 260 (1958).

Defendant is entitled to a fair trial, but not a perfect trial. People v. Sanchez, 184 Colo. 25, 518 P.2d 818 (1974).

Aim of a criminal trial is that the guilty shall not escape nor the innocent suffer an unjust conviction. People v. Rogers, 187 Colo. 128, 528 P.2d 1309 (1974).

Constitutional guaranties protected by this section relate to trial and not to proceedings thereafter unless a new trial is granted. Agnes v. People, 104 Colo. 527, 93 P.2d 891 (1939).

Summary procedure in police courts may not override constitutional rights. While summary procedure in police court cases has been countenanced from the standpoint of expediency, expedience may not override the constitution and dethrone rights guaranteed thereunder. City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958).

When sanctions imposed for violation of a municipal ordinance are penal in nature, defendant is entitled to all rights accorded one in a criminal proceeding. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910 (1970).

Municipal power to imprison is criminal sanction. In prosecutions for violation of municipal ordinances, even though considered as in the nature of civil actions, where the effects and consequences are criminal in fact, the power to imprison is a criminal sanction. City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958).

Denial of motion for preliminary hearing held not error. People v. Moreno, 181 Colo. 106, 507 P.2d 857 (1973).

This section, by its terms, relates to "criminal prosecutions" only. People in Interest of A.M.D., 648 P.2d 625 (Colo. 1982).

Protection of innocent and preservation of integrity of society. Both the United States and the Colorado Constitutions accord an accused substantive and procedural rights that are binding on the government in a criminal prosecution. Such procedures as are found in this section have been constitutionalized not only to protect the innocent from an unjust conviction but, of equal importance, to preserve the integrity of society itself by keeping sound and wholesome the process by which it visits its condemnation on a wrongdoer. People v. Germany, 674 P.2d 345 (Colo. 1983).

Preliminary hearing to determine probable cause issues should be conducted without regard to whether or not evidence meets standards of constitutional admissibility. People v. Connelly, 702 P.2d 722 (Colo. 1985).

Constitutional protections not necessarily provided to licensees in administrative proceeding. The constitutional protections afforded criminal defendants need not be provided to licensees in an administrative proceeding to revoke a driver's license. People v. McKnight, 200 Colo. 486, 617 P.2d 1178 (1980).

County or district. Words "county" and "district" are not synonymous in Colorado, and, therefore, criminal trial may be held within the same judicial district in a county other than the one in which the offense occurred. People v. Wafai, 713 P.2d 1354 (Colo. App. 1985).

Reversal is mandated if numerous formal irregularities, each of which in itself might be deemed harmless, in the aggregate show the absence of a fair trial. People v. Vialpando, 809 P.2d 1082 (Colo. App. 1990).

In determining whether prosecutorial impropriety mandates a new trial, appellate courts are obliged to evaluate the severity and frequency of the misconduct, any curative measures taken to alleviate the misconduct, and the likelihood that the misconduct constituted a material factor leading to defendant's conviction. People v. Jones, 832 P.2d 1036 (Colo. App. 1991).

Reversible error exists if there are grounds for believing that the jury was substantially prejudiced by improper conduct. Where the prosecutor's ill-advised and improper comments were so numerous and highly prejudicial, the defendant was deprived of a fair trial requiring that the judgment of conviction be reversed. People v. Jones, 832 P.2d 1036 (Colo. App. 1991).

When a defendant asserts on appeal that there is an error of constitutional dimension and where no contemporaneous objection was made, the court must first determine whether there was an error and, if so, whether it was plain and whether it affected the defendant's substantive rights. If the court finds that there was plain error that affected substantial rights, reversal is required unless the court is convinced beyond a reasonable doubt that the error is harmless beyond a reasonable doubt. People v. Petschow, 119 P.3d 495 (Colo. App. 2004).

Harmless beyond a reasonable doubt standard applies where excluded alternative suspect evidence was directly relevant to an essential element of the crime charged and favorable to defendant's defense. People v. Muniz, 190 P.3d 774 (Colo. App. 2008).

There was a reasonable probability that exclusion of alternative suspect evidence prejudiced defendant. Therefore, defendant's convictions must be reversed. People v. Muniz, 190 P.3d 774 (Colo. App. 2008).

When a defendant places his mental health capacity at issue, the prosecution may rebut the defense with psychological evidence, even if that evidence includes statements not taken in compliance with Miranda. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105 (2008).

The decision to enter a guilty plea or withdraw one is among the few fundamental choices that must be decided by the defendant alone. People v. Davis, 2 01 2 COA 1, 412 P.3d 376, rev'd on other grounds, 2015 CO 36M, 352 P.3d 950.

Trial court did not abuse discretion in concluding that suppression of defendant's statements to police was adequate remedy and that dismissal of all charges was not necessary where police officers had acted improperly by: Failing to read defendant his Miranda rights; failing to determine whether defendant was represented by counsel before interviewing him; failing to determine whether defendant understood his right to counsel; continuing to interrogate defendant after he invoked his right to counsel; and making promises and threats constituting coercive police conduct. People v. Medina, 51 P.3d 1006 (Colo. App. 2001), aff'd on other grounds, 71 P.3d 973 (Colo. 2003).

Jury instructions correctly described the four-step process for death penalty sentencing in Colorado. Contrary to defendant's argument, Colorado does not have a presumption of life imprisonment. The "beyond a reasonable doubt" standard at the third and fourth steps refers to a standard imposed on the jury, not a burden placed on either party. The phrase "beyond a reasonable doubt" as used in this context simply conveys the level of certainty the jury must possess before returning a death sentence. The instructions repeatedly stated that a death sentence could only be returned if the jury unanimously agreed beyond a reasonable doubt that death was the appropriate penalty. The instructions were not erroneous because they stated that the jury should impose a life sentence if convinced that life was the appropriate penalty. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105 (2008).

Applied in City of Durango v. Reinsberg, 16 Colo. 327, 26 P. 820 (1891); Bd. of Comm'rs v. Wilson, 3 Colo. App. 492, 34 P. 265 (1893); Henwood v. People, 57 Colo. 544, 143 P. 373 (1914); Ex parte Snyder, 110 Colo. 35, 129 P.2d 672 (1942); Emerick v. People, 110 Colo. 572, 136 P.2d 668 (1943); Wright v. People, 116 Colo. 306, 181 P.2d 447 (1947); Tate v. People, 125 Colo. 527, 247 P.2d 665 (1952); Gallegos v. People, 139 Colo. 166, 337 P.2d 961 (1959); Hammons v. People, 153 Colo. 193, 385 P.2d 592 (1963); Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965); Buckles v. People, 162 Colo. 51, 424 P.2d 774 (1967); People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971); Chambers v. District Court, 180 Colo. 241, 504 P.2d 340 (1972); People v. Stephenson, 187 Colo. 120, 528 P.2d 1313 (1974); Les v. Meredith, 193 Colo. 3, 561 P.2d 1256 (1977); People v. Gould, 193 Colo. 176, 563 P.2d 945 (1977); Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978); Broughall v. Black Forest Dev. Co., 196 Colo. 503, 593 P.2d 314 (1978); People v. Swazo, 199 Colo. 486, 610 P.2d 1072 (1980); People v. Mascarenas, 632 P.2d 1028 (Colo. 1981); People ex rel. Hunter v. District Court, 634 P.2d 44 (Colo. 1981); In re P.R. v. District Court, 637 P.2d 346 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Aragon, 643 P.2d 43 (Colo. 1982); People v. District Court, 647 P.2d 1206 (Colo. 1982); People v. Sanchez, 649 P.2d 1049 (Colo. 1982); People v. Bean, 650 P.2d 565 (Colo. 1982); City of Aurora ex rel. People v. Erwin, 706 F.2d 295 (10th Cir. 1983); People v. Rivers, 727 P.2d 394 (Colo. App. 1986).

II. RIGHT TO APPEAR AND DEFEND IN PERSON AND BY COUNSEL.

Law reviews. For note, "Right to C ounsel in C olorado", see 34 Rocky Mt. L. Rev. 343 (1962). For article, "The Power to Expel a Criminal Defendant from His Own Trial: A Comparative View", see 36 U. Colo. L. Rev. 171 (1964). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with effective assistance of counsel, see 61 Den. L.J. 303 (1984). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with effective assistance of counsel, see 62 Den. U. L. Rev. 172 (1985). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with effective assistance of counsel, see 63 Den. U. L. Rev. 343 (1986). For article, "United States Supreme Court Review of Tenth Circuit Decisions", which discusses attorney misconduct as harmless error, see 63 Den. U. L. Rev. 473 (1986). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to the right to counsel, see 15 Colo. Law. 1578 (1986). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with effective assistance of counsel, see 64 Den. U. L. Rev. 245 (1987). For comment, "Limiting Prosecutorial Discovery Under the Sixth Amendment Right to Effective Assistance of Counsel: Hutchinson v. People", see 66 Den. U. L. Rev. 123 (1988). For article, "The Implied Waiver of Right to Counsel", see 17 Colo. Law. 1533 (1988). For article, "Court-Appointed Attorneys: Old Problems and New Solutions", see 19 Colo. Law. 437 (1990).

When defendant wanted to be represented by counsel and counsel could not be prepared by the end of the speedy trial deadline, the court did not err in giving defendant the choice between waiving his right to a speedy trial or the right to be represented by effective counsel. People v. Bryant, 2 013 COA 2 8, 316 P.3d 18.

A. Right to Be Present.

Prisoner, in cases of felony, must be present at every step in proceedings, or the proceedings will be invalid. Penney v. People, 146 Colo. 95, 360 P.2d 671 (1961); People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974).

Prisoner is guaranteed the right to be present at all critical stages of the trial, including closing arguments and giving instructions to the jury. People v. Luu, 813 P.2d 826 (Colo. App. 1991), aff'd, 841 P.2d 271 (Colo. 1992).

A defendant has a constitutional right to be present when a court reads a modified Allen instruction in open court to the jury because of the psychological influence defendant's presence may have on the jury. People v. Payne, 2 014 COA 81, 361 P.3d 1040.

Prosecution failed to carry its burden of proving beyond a reasonable doubt that there was no reasonable possibility that defendant was prejudiced by his absence when the court read the instruction. People v. Payne, 2 014 COA 81, 361 P.3d 1040.

Right to be present and of allocution at sentencing. A defendant must be notified when sentence will be pronounced, and has a right to be present in the court with legal counsel at that time; he has a right of allocution before sentence is handed down which cannot be withheld from him; and the failure of the court to properly insure these rights of a defendant renders invalid a sentence pronounced under those circumstances. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972).

Defendant must be notified when sentence will be pronounced. People v. Emig, 177 Colo. 174, 493 P.2d 368 (1972).

Defendant has a right to be present when the court hears the jury's verdict, but the right may be waived either expressly or through the voluntary conduct of the defendant. The trial court erred by merely assuming that defendant's unexplained absence was a voluntary absence. The court must determine that the absence is voluntary by inquiring into the circumstances surrounding the absence. People v. Burnell, 2 019 COA 14 2 , 459 P.3d 736.

Defendant has right to be present at every critical stage of criminal proceeding; however, that right does not extend if defendant's presence would be useless or only slightly beneficial. People v. Richardson, 181 P.3d 340 (Colo. App. 2007).

There was no violation of the right to be present when defendant was not present at the hearing on a motion for a continuance. The basis of the motion was counsel's unpreparedness, so the court did not need to consult defendant to determine whether counsel was prepared for trial or not. People v. Richardson, 181 P.3d 340 (Colo. App. 2007).

There was no violation of the right when defendant was not present when the court responded to a jury question. The defendant would not have been useful in helping the court answer the jury's legal question. People v. Richardson, 181 P.3d 340 (Colo. App. 2007).

No right to be present after conviction and sentencing. There is nothing in this section giving one convicted of a felony the right to be present during court proceedings affecting his case subsequent to conviction and sentence; consequently he is without cause for complaint if he is taken to, and confined in the penitentiary before such proceedings are consummated. Agnes v. People, 104 Colo. 527, 93 P.2d 891 (1939).

And defendant may be excluded from hearings on matters of law. Where the question raised by a motion concerns only matters of law, the exclusion of the defendant from such a hearing does not violate the constitutional right to be present at every stage of the trial. Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971).

Thus, defendant is not entitled to have his motion for acquittal heard in open court in his presence and not in chambers in his absence. Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971).

Duty to appear at requested preliminary hearing. When a defendant requests a preliminary hearing, he has not only the constitutional right to be present, but is under an affirmative obligation and duty to appear at the hearing. When the defendant is present, the court, in its discretion, can determine the procedures which should be followed to insure that justice is done. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974).

Allegations of denial of the right to be present at trial are scrutinized under the harmless error doctrine. Luu v. People, 841 P.2d 271 (Colo. 1992).

The standard to apply in analyzing deprivations of the right to be present when the court responds to jury questions is harmless beyond a reasonable doubt. If the court's response is the same regardless of whether the defendant is present, the error is harmless. Further, it is harmless error if the defendant's counsel is present and does not object to the court's proper response. People v. Grace, 55 P.3d 165 (Colo. App. 2001).

Failure to afford defendant the opportunity to be present and heard before a juror is excused is not grounds for reversal without a showing of prejudice. Replacing a juror with an alternate is more in the nature of an administrative task. People v. Anderson, 183 P.3d 649 (Colo. App. 2007).

Prejudice from communications between judge and jury outside of accused's presence not presumed. Although communications between a judge and the jury outside of the presence of the party on trial are frowned upon, prejudice is not to be presumed therefrom. People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973).

Trial court's denial of jury's request for a transcript in absence of defendant and his counsel was violative of his rights, but, with no showing that defendant's case was in any way prejudiced, this was harmless error beyond a reasonable doubt. Franklin v. People, 734 P.2d 133 (Colo. App. 1986).

Rather, prejudice must be established before any verdict of guilt can be reversed on that ground. People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973).

Court's statement to jury held not prejudicial error. Where the trial court's communication to the jury in the absence of defendant or his counsel did not relate to any matter that the jury would have to consider in reaching its verdict, the court's statement did not constitute prejudicial error. People v. Lovato, 181 Colo. 99, 507 P.2d 860 (1973).

Trial court's failure to notify defense counsel before responding to jury's question was harmless error because the error did not contribute to the verdict. People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).

A hearing in which the only action taken by the court was to accede to defendant's request to proceed with a providency hearing with one, not two, competency evaluations was not a critical stage and defendant's absence from such hearing did not constitute a deprivation of defendant's constitutional right to be present. People v. White, 870 P.2d 424 (Colo. 1994).

The defendant's right to be present was not violated when the defendant did not attend a general orientation session upon the recommendation of the defendant's defense counsel. People v. Dunlap, 124 P.3d 780 (Colo. App. 2004).

Defendant forfeited his right to be present when he was disruptive, contumacious, and stubbornly defiant. People v. Cohn, 160 P.3d 336 (Colo. App. 2007).

Where defendant does not speak English, the absence of his interpreter at critical stages of the trial is tantamount to his not being present at all. People v. Luu, 813 P.2d 826 (Colo. App. 1991), aff'd, 841 P.2d 271 (Colo. 1992).

The error in not having an interpreter present at closing arguments and instructions to the jury is harmless where defendant does not allege that the interpreter's absence caused him to forego any jury instructions, there was overwhelming evidence of guilt, and closing arguments were consistent with the evidence. People v. Luu, 813 P.2d 826 (Colo. App. 1991), aff'd, 841 P.2d 271 (Colo. 1992).

Defendant's right to be present at trial violated when trial court held in camera proceedings in defendant's absence during which defendant's attorneys discussed defendant's potential desire to terminate their representation and repeatedly disclosed damaging and attorney-client privileged information. People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009).

In-chambers discussion between a judge and defense counsel on counsel's motion to withdraw was a critical stage of the trial. Defendant's inability to hear the discussion between his counsel and the court, and the court's subsequent immediate grant of counsel's motion to withdraw, establishes that the proceeding in chambers was critical and that defendant's absence was not harmless beyond a reasonable doubt. People v. Cardenas, 2 015 COA 94M, 411 P.3d 956.

Removing defendant from the courtroom, rather than the child witness, violated defendant's due process right where defendant did not stipulate to the removal. People v. Aldridge, 2 018 COA 131, 446 P.3d 897.

Any error suffered by defendant was harmless where there was no evidence that the absence of an interpreter interfered with the defendant's ability to cross-examine witnesses nor was there any indication in the record that the absence of an interpreter during closing arguments and the giving of jury instructions compromised the basic fairness of the trial. Luu v. People, 841 P.2d 271 (Colo. 1992).

When the defendant's counsel is present and has an opportunity to review and object to the jury's question, and the court properly responds to the question, there is no prejudice, and the defendant's absence is harmless beyond a reasonable doubt. People v. Wilford, 111 P.3d 512 (Colo. App. 2004).

Defendant's right to be present was violated when the court discussed with the prosecutors what to tell the jurors about decision to sequester them. The defendant's right to be present was further violated when the court informed the deliberating jury of a threat against them outside the defendant's presence. People v. Guzman-Rincon, 2 015 COA 166M, 369 P.3d 75 2 .

B. Waiver of Right to Appear and Be Present.

Counsel cannot waive prisoner's right. The right of a prisoner to be present at every step in the proceedings is so important that, except in cases of misdemeanor, it cannot be waived by counsel. Penney v. People, 146 Colo. 95, 360 P.2d 671 (1961); People v. Luu, 813 P.2d 826 (Colo. App. 1991), aff'd, 841 P.2d 271 (Colo. 1992).

Waiver must be knowing, intelligent, and voluntary. Waiver is knowing and intelligent when a defendant has had notice of the consequences of not appearing. People v. Stephenson, 165 P.3d 860 (Colo. App. 2007).

Absence from trial compelled by medical necessity may generally be deemed voluntary, and the determination of whether defendant is "voluntarily absent" requires a fact-specific inquiry into the type of medical condition, the circumstances surrounding the absence, and defendant's conduct and statements. People v. Stephenson, 165 P.3d 860 (Colo. App. 2007).

Implied waiver extinguishing right to requested preliminary hearing. Where the judge of the county court advised counsel that the failure of the defendant to appear would constitute a waiver, the defendant's subsequent refusal to appear constituted an implied waiver and extinguished the defendant's right to a preliminary hearing in the county court. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974).

Where offense is not capital and accused is not in custody, the prevailing rule has been that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if he were present. People v. Thorpe, 40 Colo. App. 159, 570 P.2d 1311 (1977).

C. Right to Testify.

Before a defendant may voluntarily waive his constitutional right to testify, the trial court must advise defendant on the record that if cross-examination by the prosecution reveals prior felony convictions, those convictions may be considered only as to credibility. People v. Curtis, 681 P.2d 504 (Colo. 1984); People v. Turley, 870 P.2d 498 (Colo. App. 1993).

Except that, it is error for a trial court to advise a defendant that elicited prior convictions will be used only to impeach credibility when those prior convictions are an element of the crime. Prior felonies are an element of habitual criminal charges and evidence of prior felonies, including those elicited by a defendant on the witness stand, are admissible substantive evidence during habitual criminal proceedings. People v. Ziglar, 45 P.3d 1266 (Colo. 2002).

But trial court need not give a modified re-advisement during the habitual phase of a trial reflecting that the defendant's admissions can be used as substantive evidence during that phase. People v. Ziglar, 45 P.3d 1266 (Colo. 2002).

Defendant's waiver of the right to testify must be voluntary, knowing and intentional, the court must advise defendant on the record that the prosecution will be permitted to cross-examine defendant if defendant chooses to testify and that if a felony conviction is disclosed to the jury on cross-examination the jury will be instructed to consider it only as it bears on defendant's credibility. People v. Akers, 870 P.2d 528 (Colo. App. 1993).

A challenge to a waiver of the right to testify may only be brought in a postconviction proceeding. Moore v. People, 2014 CO 8, 318 P.3d 511.

A defendant need not make a contemporaneous objection in the trial court to challenge a waiver advisement. Moore v. People, 2014 CO 8, 318 P.3d 511.

The adequacy of the advisement is not dispositive of whether a defendant is entitled to an evidentiary hearing on the challenge to the advisement. Moore v. People, 2014 CO 8, 318 P.3d 511.

A defendant may introduce off-the-record evidence in a postconviction proceeding to demonstrate the invalidity of his or her waiver of the right to testify. Moore v. People, 2014 CO 8, 318 P.3d 511.

Trial court's advisement on defendant's right to testify was defective where trial court went beyond the People v. Curtis advisement and misstated the law. When cross-examining a defendant, prosecutor may not ask whether a prior felony conviction arose from a plea or a trial. People v. Gomez, 211 P.3d 53 (Colo. App. 2008).

Defendant was fully aware of the relevant consequences of testifying. Because of the prosecutor's promise not to use defendant's prior conviction and the court's intent to enforce the promise, there was no possibility the previous conviction could have been used; therefore defendant was not left to speculate, nor was he misled, as to the consequences of testifying. People v. McDaniel, 74 P.3d 454 (Colo. App. 2003).

Defendant's fifth amendment right not to testify was not violated when the trial court was unwilling to limit the prosecution's cross-examination after defendant was going to testify regarding the involuntariness of his statements. The prosecution's proffered questions regarding how the alleged coercion could have caused the alleged involuntary statements were within the scope of the proposed direct examination of defendant. The court properly used its discretion in ruling it would allow the prosecution's proffered cross-examination if defendant testified regarding his alleged involuntary statements. People v. Gomez-Garcia, 224 P.3d 1019 (Colo. App. 2009).

Defense counsel may not so completely contradict or wholly undermine defendant's testimony as to nullify defendant's constitutional right to testify. However, defendant has no right to offer perjured testimony or have it accommodated by the attorney's representations or trial strategy. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Court's ruling burdened defendant's right to testify. Court erroneously ruled that, although evidence that a preliminary breath test (PBT) registered a positive result for the presence of alcohol is inadmissible to prove intoxication, that evidence could nevertheless be admitted for impeachment purposes if defendant testified that he had not been drinking. The ruling required defendant to choose to either forgo his right to testify to prevent inadmissible evidence from being introduced against him or testify and have the positive PBT result admitted to impeach his testimony. Cain v. People, 2014 CO 49M, 327 P.3d 249.

Trial court must consider the following factors in determining whether to reopen evidence and allow a criminal defendant to testify after defendant has waived the right to testify: (1) The timeliness of the motion; ( 2 ) the character of the testimony; (3) the effect of granting the motion; and (4) the reasonableness of the party's explanation for failing to present evidence in its case-in-chief. In addition, the court should also consider any additional relevant circumstances, including the timing of the Curtis advisement and defendant's initial waiver. People v. Martin, 2 014 COA 112, 338 P.3d 1106.

D. Right to Defend in Person.

Denial of defendant's request to address jury was not error. Where defendant made no objection to representation by counsel during the presentation of evidence, the record revealed that counsel for the defendant diligently conducted the defense, and defendant himself took the stand and told his story to the jury, the supreme court could find no error in the denial of the defendant's request to address the jury. Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970).

A defendant has a constitutional right to defend himself under this section. Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970); Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970); People v. Rice, 40 Colo. App. 357, 579 P.2d 647, cert. denied, 439 U.S. 898, 99 S. Ct. 261, 58 L. Ed. 2d 245 (1978).

A criminal defendant is constitutionally entitled to defend himself, provided he has an intelligent understanding of the consequences of so doing. People v. Moody, 630 P.2d 74 (Colo. 1981); People v. Rocha, 872 P.2d 1285 (Colo. App. 1993).

A criminally accused clearly has the right of self-representation. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980); People v. Mogul, 812 P.2d 705 (Colo. App. 1991).

A defendant has a constitutional right to defend himself under this section. People v. Price, 903 P.2d 1190 (Colo. App. 1995).

Providing trial judge shall find him competent to conduct his own defense. Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970).

The federal courts have recognized the right of a defendant to proceed without counsel only if he has an intelligent understanding of the consequences of so doing. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970); Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978).

Inept pro se defense resulted in lack of due process. Where the defendant was so inept that he did not and could not conduct a proper defense for himself, the absence of defense counsel and the total ineptness of the defendant to conduct a defense for himself actually resulted in a lack of due process. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

Exclusion of pro se defendant from courtroom because of his misconduct was constitutional error. Constitutional error occurs when defendant is deprived of the presence of counsel at critical stages of the proceedings where there is more than a minimal risk that counsel's absence will undermine the defendant's right to a fair trial. People v. Cohn, 160 P.3d 336 (Colo. App. 2007).

Excluding pro se defendant from the portion of the proceedings concerning the exercise of peremptory challenges is inherently prejudicial and cannot be considered harmless. People v. Cohn, 160 P.3d 336 (Colo. App. 2007).

A defendant's right to counsel will be preserved by appointing standby counsel to be ready to step in should the trial court find it necessary (1) to make a finding that the defendant, by his conduct, has waived the right to self-representation, and (2) to exclude the defendant from the courtroom when disruptive behavior occurs. People v. Cohn, 160 P.3d 336 (Colo. App. 2007).

Accused cannot defend both by counsel and himself. This section does not mean that a defendant has the right during trial both to accept the services of counsel and to conduct his own defense at the same time, or alternating at defendant's pleasure. Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970).

So long as defendant is represented by counsel at the trial, he has no right to be heard by himself. Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970).

Pro se defendant must accept burdens of defense. Any person has the constitutional right to defend a criminal action "in person and by counsel", but one who elects to act as his own attorney must accept the burden and hazards incident thereto. Dyer v. People, 148 Colo. 22, 364 P.2d 1062 (1961); Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978); People v. Rice, 40 Colo. App. 357, 579 P.2d 647, cert. denied, 439 U.S. 898, 99 S. Ct. 261, 58 L. Ed. 2d 245 (1978).

Where the record established that the defendant, fully understanding his constitutional right to counsel, knowingly, intelligently, and voluntarily relinquished the benefits of counsel and elected to represent himself, the defendant could not, thereafter, whipsaw the court between his constitutional right of self-representation and his own ineffectiveness at trial. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980).

Action of trial court does not constitute violation of due process, where trial court denied defendant's motion for continuance of criminal trial for misdemeanor theft and defendant asserted that he had been unable to prepare pro se case in two weeks. The court's action was taken after defendant requested the withdrawal of his public defender, and the court granted the request only after extended discussion regarding the defendant's right to counsel, the disadvantages of self-representation, and notice that the trial would proceed as scheduled. People v. Denton, 757 P.2d 637 (Colo. App. 1988).

The wisdom of defendant's election to proceed pro se in a first-degree murder trial was not the question before the trial court; it was proper to accept defendant's choice of self-representation, where defendant intelligently and understandingly waived his right to counsel. People v. Reliford, 39 Colo. App. 474, 568 P.2d 496 (1977), aff'd, 195 Colo. 549, 579 P.2d 1145 (1978), cert. denied, 439 U.S. 1076, 99 S. Ct. 851, 59 L. Ed. 2d 43 (1979).

But court must instruct jury on elements of defense. Where the defendant was proceeding without counsel the trial court should have recognized drunkenness as an element in defense of the charge and should have instructed the jury on the manner of voluntary drunkenness. Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).

But not where defendant conditions exercise of right upon mistrial. Although a criminal defendant has a constitutional right to defend himself, there is no violation of that right where the defendant conditions the exercise of that right upon the trial court's grant of a motion for mistrial. People v. Moody, 630 P.2d 74 (Colo. 1981).

Burden rests upon defendant to show satisfactory cause for a late request to proceed pro se and trial court, in exercising its discretion whether to deny or grant request, must first determine if request is timely. People v. Mogul, 812 P.2d 705 (Colo. App. 1991).

Unless request to represent self is made in ample time prior to trial date, trial court must determine whether request is made for purposes of delay or to gain tactical advantage and whether lateness of request may hinder administration of justice. People v. Mogul, 812 P.2d 705 (Colo. App. 1991).

Request for self-representation must be unequivocal and must constitute a valid, knowing, and voluntary waiver of right to counsel. In order to make such a determination, the trial court must first enter into dialogue with defendant to explain consequences of self-representation as well as its dangers and disadvantages. People v. Mogul, 812 P.2d 705 (Colo. App. 1991); People v. Bolton, 859 P.2d 303 (Colo. App. 1993).

The right to self-representation is not self-executing, therefore, the defendant must make a continuing unequivocal request to trigger it. Defendant's request was not unequivocal since it was tied to a properly refused demand for an immediate trial. When defendant was informed he would not receive the immediate trial, he abandoned his request for self-representation indicating he wanted to continue with his lawyer. People v. Abdu, 215 P.3d 1265 (Colo. App. 2009).

Defendant's equivocal statements that he wished to proceed pro se "only for today" and, on another occasion, to "speak in my own defense along with the attorney" were not effective as a request for self-representation. People v. Bolton, 859 P.2d 303 (Colo. App. 1993).

Defendant's request that he or she proceed pro se "against my will" rendered his or her request not unequivocal and was, therefore, not granted because the thrust of his or request was the appointment of new counsel and a continuance. People v. King, 121 P.3d 234 (Colo. App. 2005).

Defendant's statement at pretrial hearing that he was ready to continue pro se, after which he did not object to the appointment of a new counsel, was not an unequivocal demand to represent himself. People v. Shepard, 989 P.2d 183 (Colo. App. 1999).

Defendant did not make an unequivocal request to proceed pro se when the defendant first indicated a willingness to go to trial with or without counsel but later appeared for trial with counsel and did not object to the new counsel. People v. Edwards, 101 P.3d 1118 (Colo. App. 2004), aff'd on other grounds, 129 P.3d 977 (Colo. 2006).

The court must advise a defendant that a possible consequence of refusing to answer the court's questions, offering nonsensical responses to those questions, or generally refusing to acknowledge the court's jurisdiction will be a denial of defendant's request to represent himself or herself, the appointment of counsel against defendant's wishes, and a barrier to the court entertaining a subsequent request for the defendant to represent himself or herself. People v. Lavadie, 2 0 2 0 COA 37, __ P.3d __.

Even when such an advisement is given, the court should still reinvestigate its decision to appoint counsel for a defendant against his or her wishes, if, at a subsequent hearing, the defendant indicates that he or she is willing to engage in an appropriate dialogue with the court and properly conduct himself or herself. People v. Lavadie, 2 0 2 0 COA 37, __ P.3d __.

A defendant who is not capable of knowingly, intelligently, and voluntarily waiving representation is not, for that reason, incompetent to stand trial. Trial court did not err in summarily denying defendant's request to dismiss his attorney, based on defendant's statement that antibiotics were preventing him from thinking clearly, and proceeding with the trial. People v. Bolton, 859 P.2d 303 (Colo. App. 1993).

Defendant's technical legal knowledge is not factor under consideration by trial court in determining whether to grant or deny motion for pro se representation. However, court is not obligated to put up with disruption or intemperate conduct or with defendant's ignoring of procedural or substantive rules of law and may appoint advisory counsel, over objections of defendant, to insure orderly proceedings and to provide assistance to the defendant. People v. Mogul, 812 P.2d 705 (Colo. App. 1991).

A defendant proceeding pro se is subject to the same rules, procedures, and substantive law as a licensed attorney. People v. Bolton, 859 P.2d 311 (Colo. App. 1993).

Advisory counsel can assist self-representing defendant only when requested. Where the defendant exercises his constitutional right of self-representation, advisory counsel can assist the defendant only if and when the defendant requests such assistance. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980).

Trial court's failure to direct advisory counsel to take control of case when defendant voluntarily absented himself did not violate defendant's right to counsel. Without a request from defendant, or obstreperous conduct justifying termination of self-representation, trial court's sua sponte appointment of counsel could have violated defendant's right to self-representation. People v. Brante, 232 P.3d 204 (Colo. App. 2009).

But may not be used to impede efficient administration of justice. People v. Mogul, 812 P.2d 705 (Colo. App. 1991); People v. Bolton, 859 P.2d 303 (Colo. App. 1993).

No constitutional right to appointment of advisory counsel to assist pro se defendant. People v. Romero, 694 P.2d 1256 (Colo. 1985).

Accused cannot be defended both by counsel and by himself. Denial of defendant's request to represent himself as cocounsel was proper. People v. Avila, 770 P.2d 1330 (Colo. App. 1988); People v. Bolton, 859 P.2d 303 (Colo. App. 1993).

Court not required to instruct on affirmative defense of self-induced intoxication when pro se defendant does not present evidence raising such defense. People v. Romero, 694 P.2d 1256 (Colo. 1985).

When an indigent defendant voices objections to court-appointed counsel, the trial court has the obligation to inquire into the reasons for the dissatisfaction; however, once the court has appropriately determined that a substitution of counsel is not warranted, the court can insist that the defendant choose between continued representation by existing counsel and appearing pro se. People v. Arguello, 772 P.2d 87 (Colo. 1989); People v. Rocha, 872 P.2d 1285 (Colo. App. 1993); People v. Arko, 159 P.3d 713 (Colo. App. 2006), rev'd on other grounds, 183 P.3d 555 (Colo. 2008).

The standard for an appellate review of a claim of the denial of the right to self-representation is de novo. People v. Abdu, 215 P.3d 1265 (Colo. App. 2009).

E. Right to Counsel.

Law reviews. For article, "The Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel", see 89 Denv. U.L. Rev. 327 (2012).

Defendant in criminal trial has constitutional right to be assisted and represented by counsel. Moore v. People, 171 Colo. 338, 467 P.2d 50 (1970).

The right to counsel includes the right to fire hired counsel without showing good cause, even when the defendant wants a public defender. A defendant who wishes to fire a hired attorney will not necessarily be able to proceed as he or she wants. The trial court must determine how the defendant wants to proceed and then determine if there are any barriers to allowing the defendant to proceed in his or her chosen manner. If there are barriers to how defendant wants to proceed, the court must advise the defendant of his or her options to keep his or her current attorney or proceed pro se. Ronquillo v. People, 2017 CO 99, 404 P.3d 264.

Constitutional right to counsel of choice violated, even though defendant did not move for entry of a particular counsel or expressly object to counsel during trial, where defendant's attorneys purposefully kept defendant ignorant of the nature of in camera proceedings and the disclosure of privileged information attorneys made during those proceedings. Attorneys' conduct, which was compounded by the court permitting defendant to be excluded from the proceedings, effectively and wrongfully deprived defendant of a knowing exercise of defendant's choice of counsel. People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009).

Permitting counsel to withdraw over defendant's objection, based on information provided to the court outside of defendant's presence, and without balancing the need for orderly administration of justice with the facts underlying the request, denied defendant his counsel of choice. People v. Cardenas, 2 015 COA 94M, 411 P.3d 956.

When deciding whether to grant a continuance to allow a defendant to change counsel, the trial court must conduct a multi-factor balancing test and determine whether the public's interest in the efficiency and integrity of the judicial system outweighs the defendant's right to counsel of choice. People v. Brown, 2 014 CO 2 5, 322 P.3d 214; People v. Stidham, 2014 COA 115, 338 P.3d 504.

Defendant's request for continuance to "look for and pay for a lawyer" was not an invocation of her sixth amendment right to be represented by counsel of her choice and did not require the court to consider the factors of People v. Brown. People v. Travis, 2019 CO 15, 438 P.3d 718.

When a defendant hires a specific attorney who fails to appear, the Brown factors do not apply. The court should have granted a continuance to allow defendant to be represented by his chosen retained counsel instead of the firm's associate appearing on behalf of the specific retained counsel. If, instead, defendant had hired the firm to represent him, then the court must apply the Brown factors to consider whether to grant a continuance for defendant to be represented by a specific attorney at the firm other than the attorney who appeared on behalf of the firm. People v. Stidham, 2 014 COA 115, 338 P.3d 504.

Presence of counsel in extradition proceedings. The language of § 16-19-111, dealing with the rights of fugitives in extradition proceedings, establishes a right to the presence of legal counsel, and due process requirements prohibit the denial of this right to indigents, when it has been made available to those able to afford counsel. Mora v. District Court, 177 Colo. 381, 494 P.2d 596 (1972).

Indigent defendant entitled to appointed counsel at state expense. By reason of this section of the Colorado Constitution and the sixth amendment to the United States Constitution, an indigent defendant in a criminal proceeding is entitled to have counsel appointed at the expense of the state to assist him in his defense. Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971); People v. Cardenas, 62 P.3d 621 (Colo. 2002).

And a conviction obtained in violation of a defendant's right to counsel cannot be used in subsequent sentencing for felony conviction to deny defendant probation pursuant to § 16-11-201 (2). People v. McIntosh, 695 P.2d 795 (Colo. App. 1984).

But this right does not carry the right in the indigent defendant to choose counsel. Valarde v. People, 156 Colo. 375, 399 P.2d 245 (1965); Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970); People v. Shook, 186 Colo. 339, 527 P.2d 815 (1974).

The defendant's right to counsel does not grant the defendant the right to pick the public defender of his choice. Maynes v. People, 178 Colo. 88, 495 P.2d 551 (1972).

While an indigent defendant has no right to choose court-appointed counsel, an indigent defendant does have a presumptive right to continued representation by court-appointed counsel absent a factual and legal basis to terminate that appointment. People v. Harlan, 54 P.3d 871 (Colo. 2002).

Defendant has the right to have conflict-free counsel appointed to pursue post-conviction remedies for the prior conviction. People v. Cross, 114 P.3d 1 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 71 (Colo. 2006).

Standby, advisory counsel discretionary with judge. While the appointment of advisory counsel is generally a fair and commendable practice, even the most persuasive authority does not mandate the appointment of standby counsel in all cases, but rather leaves the decision to the trial judge's sound discretion. Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978).

Trial court's failure to direct advisory counsel to take control of case when defendant voluntarily absented himself did not violate defendant's right to counsel. Without a request from defendant, or obstreperous conduct justifying termination of self-representation, trial court's sua sponte appointment of counsel could have violated defendant's right to self-representation. People v. Brante, 232 P.3d 204 (Colo. App. 2009).

Courts may require reasonable proof of indigency. Where the right to counsel is conditioned upon indigency of the defendant, it is the right of the trial courts to set reasonable rules as to the manner in which the indigency must be proved. Adargo v. People, 159 Colo. 321, 411 P.2d 245 (1966).

Such proof may be affidavit of indigency and should accompany a petition for appointment of counsel to prosecute a writ of error. Adargo v. People, 159 Colo. 321, 411 P.2d 245 (1966).

It is abuse of discretion not to grant defendant's request for assistance of counsel even though no affidavit of indigency is filed where there is a lack of funds to retain counsel to prosecute writ of error and time for prosecuting appeal is rapidly running out. Adargo v. People, 159 Colo. 321, 411 P.2d 245 (1966).

Record need not show that accused was informed of right to counsel. Santo v. Santo, 120 Colo. 13, 206 P.2d 341 (1949).

Right to have counsel present at interrogation is indispensable. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The right to counsel under the sixth amendment, particularly in light of the fifth amendment privilege, includes not merely the right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires. People v. Pierson, 633 P.2d 485 (Colo. App. 1981), aff'd in part and rev'd in part on other grounds, 670 P.2d 770 (Colo. 1983).

And accused must be clearly informed of this right. An individual held for interrogation must be clearly informed that he has the right to consult a lawyer and to have the lawyer with him during interrogation. This warning is an absolute prerequisite to interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Accused must also be warned that if indigent, counsel will be appointed. In order fully to apprise a person interrogated of the extent of his rights under this system, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The advisement defendant received concerning his right to appointed counsel was sufficient to convey to him that if he could not afford one, an attorney would be provided free of charge. Miranda does not require that a suspect be advised of or understand that he or she will not ultimately bear any liability for the cost of an attorney appointed to assist him or her during custodial interrogation. However, defendant was adequately advised in his native language and understood that if he requested the assistance of an attorney to consult with him and be present during custodial interrogation, but could not afford one, one would be appointed for that purpose. Sanchez v. People, 2014 CO 56, 329 P.3d 253.

The purpose of the Miranda rule is to protect a suspect against investigative interrogation and not from the routine gathering of basic identifying data needed for booking and arraignment. People v. Anderson, 837 P.2d 293 (Colo. App. 1992).

Right to counsel at confrontations for identification after June 12, 1967. Vigil v. People, 174 Colo. 164, 482 P.2d 983 (1971).

Right to counsel when the court is instructing the jury is fundamental. Nieto v. People, 160 Colo. 179, 415 P.2d 531 (1966).

As is right to counsel during sentencing. The nature and possibilities of this important and critical stage of the proceedings, i.e. the time of sentence, are such as make the absence of counsel at this time presumably prejudicial. Doe v. People, 160 Colo. 215, 416 P.2d 376 (1966).

Preparatory steps do not require counsel. The United States supreme court distinguished "mere preparatory" steps in the gathering of evidence from those stages described as critical stages, such as line-up, where the accused has a right to counsel. Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970).

The denial of a right to have accused's counsel present at scientific or technical analyses does not violate the sixth amendment or this section; they are not critical stages since there is minimal risk that counsel's absence at such stages might derogate from the right to a fair trial. Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970).

Scientific analyses of accused's fingerprints, blood samples, clothing, hair, etc., are preparatory steps. Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970).

As is photographing accused to preserve his appearance. The photographing of an accused to preserve visually his appearance at a time near that of the alleged commission of the offense is not in a critical stage of the proceeding, entitling the accused to the assistance of counsel. Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970).

Right to effective counsel extends throughout plea negotiations. Carmichael v. People, 206 P.3d 800 (Colo. 2009).

Decision to exercise right of appeal is personal to convicted person. Cruz v. Patterson, 253 F. Supp. 805 (D. Colo.), aff'd, 363 F.2d 879 (10th Cir.), cert. denied, 385 U.S. 975, 87 S. Ct. 501, 17 L. Ed. 2d 438 (1966).

And does not reside in his counsel. Cruz v. Patterson, 253 F. Supp. 805 (D. Colo.), aff'd, 363 F.2d 879 (10th Cir.), cert. denied, 385 U.S. 975, 87 S. Ct. 501, 17 L. Ed. 2d 438 (1966).

Screening procedures by counsel deny appellate rights of indigent defendants. Screening procedures by counsel, such as appointment of counsel to determine whether any reversible error occurred during trial, have been found to be incompatible with the constitutional requirement that the criminal defendant, asserting his right to appeal, be accorded equal protection of the law despite his financial condition. In such procedures, counsel assumes primarily the role of an advisor to the court as to whether the case warrants further consideration, rather than the role of advocate. Cruz v. Patterson, 253 F. Supp. 805 (D. Colo.), aff'd, 363 F.2d 879 (10th Cir.), cert. denied, 385 U.S. 975, 87 S. Ct. 501, 17 L. Ed. 2d 438 (1966).

An attorney who entered appearance in behalf of accused cannot withdraw his appearance on day set for trial. Altobella v. Priest, 153 Colo. 309, 385 P.2d 585 (1963).

Unless granted permission to do so for good cause. Altobella v. Priest, 153 Colo. 309, 385 P.2d 585 (1963).

No right to appointed counsel in civil proceeding. There is no constitutional right to appointed counsel for an indigent litigant in a civil proceeding brought by a private party involving only property interests. In re McCue, 645 P.2d 854 (Colo. App. 1982).

Sophisticated request not necessary for right to counsel. Neither a "sophisticated" request nor a "legally proper form" is necessary to invoke the right to counsel. People v. Cook, 665 P.2d 640 (Colo. App. 1983).

Right to counsel attaches at or after time adversary judicial proceedings are initiated against defendant. People v. Anderson, 842 P.2d 621 (Colo. 1992).

Defendant not denied his sixth amendment right to counsel because he lacked counsel at advisement hearing. Although hearing triggered defendant's right to counsel, defendant was not entitled to counsel at the hearing itself. People v. Roberts, 2 013 COA 50, 3 2 1 P.3d 581.

Even if defendant was entitled to counsel at advisement hearing, any error in not providing counsel was harmless because nothing of any significance in determining defendant's guilt or innocence occurred at the hearing. People v. Roberts, 2 013 COA 50, 3 2 1 P.3d 581.

Right to counsel improperly denied where trial court made factual finding that although, defendant's income exceeded income eligibility guidelines, defendant was still financially unable to retain private counsel. People v. Tellez, 890 P.2d 197 (Colo. App. 1994), cert. denied, 909 P.2d 1105 (Colo. 1996).

Waiver of counsel cannot be voluntary if based upon impermissible choice. Where attorney's actions are constitutionally deficient, the trial court's improper denial of motion for substitute counsel effectively forces defendant to choose between his right to counsel and other trial rights. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Where defendant proceeds pro se after erroneous denial of request for new counsel, any violation of sixth amendment rights results in a complete denial of right to counsel. Such complete violations constitute structural errors in the trial process and warrant a new trial. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Defendant's request for new counsel requires inquiry into four factors: (1) The timeliness of the motion, (2) the adequacy of the court's inquiry into the defendant's complaint, (3) whether the attorney-client conflict results in a total lack of communication or prevents an adequate defense, and (4) the extent to which the defendant substantially and unreasonably contributed to the underlying conflict with the attorney. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Court did not err in denying defendant's request for new counsel when defendant did not establish an actual conflict of interest. People v. Weeks, 2 015 COA 77, 369 P.3d 699.

Tape recording of defendant's conversation with accomplice made without his knowledge in the back of police car did not violate his sixth amendment right to counsel since that right does not attach until the initiation of adversary judicial criminal proceedings and the defendant had not yet been charged at the time of the recording. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).

Defendant's right to counsel violated but no reversible error occurred where prosecution introduced in case-in-chief evidence obtained from defendant in her counsel's absence and without waiver after formal proceedings had been initiated against her triggering her right to counsel. People v. Ridley, 872 P.2d 1377 (Colo. App. 1994).

Even though the court should not have allowed evidence of the defendant's drug enforcement administration cooperative activities in the prosecution's case-in-chief because defendant's right to counsel had been violated, since it was clearly admissible in rebuttal to impeach defendant's claim of entrapment, any error by the trial court in admitting the evidence out of order was harmless beyond a reasonable doubt. People v. Ridley, 872 P.2d 1377 (Colo. App. 1994).

No violation of right to counsel where defendant's incriminating statements to undercover agent were obtained pursuant to defendant's express invitation. People v. Battle, 694 P.2d 359 (Colo. App. 1984).

Or where defendant's incriminating statements to district attorney were made before bribery charges were pending against him, since no right to counsel yet existed on the bribery charges. People v. Hyun Soo Son, 723 P.2d 1337 (Colo. 1986).

Or where defendant, two days before she was formally charged with aggravated distribution of cocaine, met with drug enforcement administration agents, agreed to become an informant and broker large drug deals in that capacity, signed a cooperative agreement, and gave them certain information. People v. Ridley, 872 P.2d 1377 (Colo. App. 1994).

No impermissible use by prosecution of defendant's invocation of the right to counsel where defendant was asked what he meant when he told a deputy "I've got a lot to get off my chest but I'd be cutting my own throat" and he answered, "Probably only that it would be foolish of me to talk to the police very much without first talking to an attorney," because he knew that he had committed a crime "of sorts", since defendant was not invoking his right to counsel when he made spontaneous incriminating statements to the deputy in a restroom, without any interrogation by the deputy. People v. Gordon, 32 P.3d 575 (Colo. App. 2001).

While defendant has constitutional right to counsel, there is no right to a particular counsel. People v. Anaya, 732 P.2d 1241 (Colo. App. 1986), rev'd on other grounds, 764 P.2d 779 (Colo. 1988).

However, where original counsel of choice was erroneously disqualified, defendant need not demonstrate constitutionally ineffective assistance of trial attorney before receiving a new trial. Anaya v. People, 764 P.2d 779 (Colo. 1988).

The right to be represented by counsel exists at every critical stage of a criminal trial including jury deliberations. People v. Key, 851 P. 2 d 2 28 (Colo. App. 1992); People v. Vega, 870 P.2d 549 (Colo. App. 1993); People v. Loyd, 902 P.2d 889 (Colo. App. 1995); People v. Guzman-Rincon, 2015 COA 166M, 369 P.3d 752.

The sixth amendment requires that a licensed lawyer be present in the courtroom when a law student represents a criminal defendant during a critical stage of a criminal case. If the supervising lawyer is not in the courtroom during those critical stages, no licensed lawyer is present, and the defendant is denied his or her constitutional right to counsel guaranteed by the sixth amendment. Such a complete deprivation of counsel is a structural error, requiring reversal without regard to any showing of prejudice. People v. McGlaughlin, 2 018 COA 114, 4 2 8 P.3d 691.

Court's ex parte communications with the prosecutors and jurors violated defendant's sixth amendment right to counsel at all critical stages of his trial. People v. Guzman-Rincon, 2 015 COA 166M, 369 P.3d 75 2 .

In camera proceedings in defendant's absence were a critical stage of criminal trial. In camera proceedings in defendant's absence during which defendant's attorneys discussed defendant's potential desire to terminate their representation and repeatedly disclosed damaging and attorney-client privileged information were critical. People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009).

Defendant's absence was not harmless beyond a reasonable doubt. People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009).

An in camera proceeding is a critical stage of the proceedings at which the right to counsel attaches. People v. Delgadillo, 2 01 2 COA 33, 275 P.3d 772.

A sentencing hearing is a critical stage of a criminal proceeding. People v. Loyd, 902 P.2d 889 (Colo. App. 1995).

This section does not create a constitutional right to counsel in a Crim. P. 35 hearing. People v. Duran, 757 P.2d 1096 (Colo. App. 1988).

Defendant has constitutional right to counsel at resentencing hearing resulting from order granting Crim. P. 35(a) motion based on an illegal sentence. Defendant has right to counsel at all critical stages of a criminal proceeding, and a sentencing hearing is a critical stage. There was no doubt that the purpose of the hearing was to resentence the defendant; this was not merely a clerical error, however, the error was harmless because defendant was represented by privately retained counsel at the resentencing hearing. People v. Fritts, 2 014 COA 103, 411 P.3d 84 2 .

Right to counsel not dependent on classification of crime. The right to counsel does not depend upon the general assembly's classification of the crime charged. People v. Roybal, 618 P.2d 1121 (Colo. 1980).

This section does not create a constitutional right to counsel to appeal a conviction when the only sentence was a fine. An indigent defendant has a constitutional right to appointed counsel only when, if the defendant loses, the defendant may be deprived of his or her physical liberty. Knapper v. Aurora Mun. Court, 985 P.2d 105 (Colo. App. 1999).

Because neither party requested a hearing, the motion to extend probation was not a critical stage that would require the presence of counsel. Therefore, court rejected defendant's claim that the motion to extend probation was invalid because defendant signed the motion without the benefit of legal counsel. People v. Romero, 198 P.3d 1209 (Colo. App. 2007).

Right to counsel in contempt proceedings. The right to counsel must be extended to all contempt proceedings, whether labeled civil or criminal, which result in the imprisonment of the witness. Padilla v. Padilla, 645 P.2d 1327 (Colo. App. 1982); In re Wyatt, 728 P.2d 734 (Colo. App. 1986); Griffin v. Jackson, 759 P.2d 839 (Colo. App. 1988).

If a husband cited for contempt for failure to make child support payments to his former wife was refused legal services by at least two private attorneys because he was unable to pay requested fee, he was entitled to have his assets examined and considered by court in determining eligibility for court-appointed counsel under supreme court indigency guidelines. In re Wyatt, 728 P.2d 734 (Colo. App. 1986).

Right to counsel extends to the following critical stages: Jury deliberation and return of verdict. People v. Johnson, 802 P.2d 1105 (Colo. App. 1990), rev'd on other grounds, 815 P.2d 427 (Colo. 1991).

Filing of detainer against an incarcerated defendant pursuant to the Interstate Agreement on Detainers is not a critical stage of the proceedings, and therefore, defendant's constitutional right to counsel is not implicated. People v. Evans, 971 P.2d 229 (Colo. App. 1998).

C ritical stage of criminal proceeding requires that there be more than a minimal risk that the absence of counsel might impair a defendant's right to a fair trial. Key v. People, 865 P. 2 d 8 2 2 ( C olo. 1994); People v. Guzman-Rincon, 2015 COA 166M, 369 P.3d 752.

An ex parte scheduling conference with jurors during deliberations occurred at a critical stage of the criminal proceedings. Key v. People, 865 P.2d 822 (Colo. 1994).

Although trial court's actions in conducting a scheduling conference without defendant's counsel present constituted error, it was harmless considering the totality of all facts and circumstances and did not warrant an automatic reversal. People v. Key, 851 P.2d 228 (Colo. App. 1992).

Court's speaking to jury concerning the status of deliberations without counsel present harmless error where there was no suggestion of coercion. People v. Urrutia, 893 P.2d 1338 (Colo. App. 1994).

There was no suggestion of coercion where trial court, outside the presence of defense counsel, answered jury question concerning unanimity of verdict with its own question as to whether further deliberations would assist the jury to arrive at a verdict. People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).

The court's failure to allow the defendant and the defendant's counsel the opportunity to appear and review the jury's request to review the trial transcript was harmless error. Since the court is vested with the discretion to allow the jury to review transcripts and the defendant cannot show that this case was prejudiced by allowing the jury to review the transcript, there is no reversible error. People v. Dunlap, 124 P.3d 780 (Colo. App. 2004).

Court ordered competency examination is a critical stage of aggregate adversary proceedings for purposes of right to counsel. A criminal defendant must be given the opportunity to consult with counsel prior to submitting to a court-ordered competency examination under § 16-8-106. People v. Branch, 786 P.2d 441 (Colo. App. 1989).

If a court-ordered competency examination is required, the trial court must provide the defendant with adequate safeguards calculated to ensure protection not only of the defendant's privilege against self-incrimination but also such defendant's right to counsel. People v. Branch, 805 P.2d 1075 (Colo. 1991).

However, the sixth amendment does not guarantee an absolute right to counsel of choice in all cases. When a defendant's desire to retain a particular attorney would significantly undermine public confidence in the impartiality and fairness of the judicial process because of the circumstances of the case, the defendant may be precluded from retaining attorney. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).

The trial court must use a balancing approach and evaluate the defendant's preference for particular counsel, the witness's right to confidentiality of communications, and the public's interest in maintaining the integrity of the judicial process as well as the nature of the particular conflict of interest involved. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).

The interest of the public in the fair and proper administration of justice includes concerns that trials be conducted in an evenhanded manner; that the participants in the adversary process, including witnesses, be protected from unfair tactics; and that the courts maintain the integrity of the judicial system and the highest standards of the legal profession. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986).

Although there is a constitutional right to self-representation, there is no corresponding right to have advisory counsel appointed in order to exercise the right. The court did not abuse its discretion in declining to appoint advisory counsel for defendant so he could proceed pro se. People v. Waller, 2 016 COA 115, 41 2 P.3d 866, cert. denied, __ U.S. __, 137 S. Ct. 2255, 198 L. Ed. 2d 689 (2017).

For a defendant to invoke his or her right of self-representation, the right must be asserted timely and unequivocally. Defendant's requests for self-representation was secondary to his or her request for conflict-free counsel. Since the court appointed conflict-free counsel, defendant's requests for self-representation were not unequivocal. People v. Shreck, 107 P.3d 1048 (Colo. App. 2004).

Court may pay the cost of a defendant's expert when defendant is represented by a private attorney and defendant meets the requisite constitutional showing for obtaining state-funded support services. Court payment of defendant's support costs is appropriate if: (1) the defendant becomes indigent during the case; (2) defendant has insufficient funds to pay the costs; and (3) appointment of a public defender or alternate defense counsel would be too disruptive to the proceedings. People v. Orozco, 210 P.3d 472 (Colo. App. 2009).

Court could have authorized pro bono counsel state funds for ancillary services pursuant to a chief justice directive. Right to counsel not denied and any error was harmless when, in the absence of a request from pro bono counsel, court did not sua sponte apply Chief Justice Directive 04-04 that addressed when a court could provide state-funded ancillary services to indigent defendants. People v. Thompson, 2 017 COA 56, 413 P.3d 306.

F. Waiver of Right to Counsel.

Valid waiver will not be presumed from silence of accused. An express statement that an individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver, but a valid waiver will not be presumed simply from the silence of an accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. Constantine v. People, 178 Colo. 16, 495 P.2d 208 (1972).

Guilty plea does not create presumption of waiver. A plea of guilty has some probative value in determining waiver of counsel. Although a plea of guilty of itself creates no presumption of waiver, it may be considered where there is no claim of innocence. Martinez v. People, 166 Colo. 132, 442 P.2d 422, cert. denied, 393 U.S. 990, 89 S. Ct. 474, 21 L. Ed. 2d 453 (1968).

Threshold question in interrogation was whether waiver was made. Whether or not the police ignored the fact that the defendant had an attorney in another case, when they questioned him in a separate case, the threshold question was whether, as a matter of law, the defendant made a knowing and intelligent waiver of his right to counsel before he made any statement to the police. Constantine v. People, 178 Colo. 16, 495 P.2d 208 (1972).

Judicial determination. The matter of comprehension of constitutional rights is the very essence of the broader determination of voluntariness and admissibility, and these issues, in the first instance, must be determined by the trial court at an in camera hearing. Constantine v. People, 178 Colo. 16, 495 P.2d 208 (1972).

Considerations of court in passing on waiver issue. In passing on whether a statement is voluntary and whether the accused waived his right to counsel, the court must consider and examine the totality of the facts and circumstances of the case, and also the conduct of the accused. Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972); People v. Romero, 953 P.2d 550 (Colo. 1998).

Right to counsel held waived. Where a defendant is able to understand fully the meaning of explanations given him and thereafter enters a plea of guilty to a charge contained in an information, and at no time indicates that he is without funds to employ counsel, and does not request that counsel be appointed to represent him, his action amounts to a waiver of the right to appointed counsel. Little v. People, 138 Colo. 572, 335 P.2d 863 (1959); People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976).

Where defendant acknowledged he understood what his rights were and specifically stated he did not want an attorney and where conversations yielding incriminating admissions were spontaneously initiated by defendant and were not the result of any investigative interrogation, the record amply demonstrates that proper Miranda warnings were given the defendant and that he knowingly and intelligently waived his right to an attorney. Gass v. People, 177 Colo. 232, 493 P.2d 654 (1972).

Juvenile defendant's execution of financial eligibility form and interview by member of public defender's office did not constitute an unambiguous invocation of the right to counsel. Under totality of the circumstances, statement by juvenile's mother to police concerning public defender representation simply indicated mother's concern over legal representation in light of financial circumstances, and was not a clear assertion of right to counsel. People v. Grant, 30 P.3d 667 (Colo. App. 2000), aff'd on other grounds, 48 P.3d 543 (Colo. 2002).

No effective waiver of right to counsel during interrogation can be recognized unless specifically made after Miranda warning is given. Constantine v. People, 178 Colo. 16, 495 P.2d 208 (1972).

Burden is on state to prove waiver of right to counsel. If interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

When police officers interrogate a defendant without the presence of an attorney, and a statement is taken, the burden is on the people to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Neitz v. People, 170 Colo. 428, 462 P.2d 498 (1969).

The burden of proving that a waiver of counsel is knowingly and intelligently made is on the prosecution. People v. Bowen, 176 Colo. 302, 490 P.2d 295 (1971).

To constitute an express waiver, the attendant facts must show clearly and convincingly that the accused did relinquish his constitutional rights knowingly, intelligently and voluntarily. Constantine v. People, 178 Colo. 16, 495 P.2d 208 (1972).

Warnings and waiver of rights are prerequisite to admissibility of statements by defendant. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Perez v. People, 176 Colo. 505, 491 P.2d 969 (1971).

Miranda requirements not met. Where the defendant, a high school student who came from a poor family who spoke broken English and whose home was a small rural community, was not informed that he had a right to have an attorney present before any questioning; and secondly, he was not informed that if he desired to have an attorney present but could not afford one, one would be appointed for him without charge, the requirements of Miranda were not met. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

Evidence held sufficient that defendant waived Miranda rights. Massey v. People, 179 Colo. 167, 498 P.2d 953 (1972).

Defendant's Miranda waiver was not coerced. There was no evidence in the record that waiver was the product of intimidation, coercion, or deception. People v. Madrid, 179 P.3d 1010 (Colo. 2008).

Waiver must be made knowingly and intelligently. Once it is established that a defendant has a right to counsel, the court must establish that any waiver of the constitutional right is made knowingly and intelligently. Padilla v. Padilla, 645 P.2d 1327 (Colo. App. 1982); People v. Romero, 694 P.2d 1256 (Colo. 1986); People v. Arguello, 772 P.2d 87 (Colo. 1989); People v. Trujillo, 773 P.2d 1086 (Colo. 1989); People v. Martinez, 789 P.2d 420 (Colo. 1990).

Defendant voluntarily, knowingly, and intelligently waived right to counsel where record showed that he did so in order to choose his own trial strategy. It was irrelevant that the court failed to conduct a specific colloquy as to each of the areas of inquiry specified in case law. Further the record showed that any shortcoming in the colloquy was the result of defendant's obstreperous and disruptive conduct. People v. Smith, 881 P.2d 385 (Colo. App. 1994); People v. Smith, 77 P.3d 751 (Colo. App. 2003).

And may be made without attorney's presence. There is no rule that whenever a defendant is represented by an attorney, she may not waive her right to counsel without the presence of the attorney. People v. Mann, 646 P.2d 352 (Colo. 1982).

Waiver must be made knowingly and intelligently, but intelligently does not refer to the wisdom of the waiver; rather, the court must honor a defendant's request to self-represent if it is satisfied that the defendant knows what he or she is doing and understands the consequences. People v. Johnson, 2 015 COA 54, 356 P.3d 10 2 4.

Defendant was improperly denied his right to self-representation where requests to represent himself were unequivocal, his first request was well in advance of his scheduled retrial, and he had seen and participated in his first trial, and thus had a better sense of what to expect than many defendants representing themselves. People v. Johnson, 2 015 COA 54, 356 P.3d 10 2 4.

Waiver of counsel cannot be voluntary if based upon impermissible choice. Where attorney's actions are constitutionally deficient, trial court's improper denial of motion for substitute counsel effectively forces defendant to choose between his right to counsel and other trial rights. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Where defendant proceeds pro se after erroneous denial of request for new counsel, any violation of sixth amendment rights results in a complete denial of right to counsel. Such complete violations constitute structural errors in the trial process and warrant a new trial. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

In addition, an accused may knowingly, intelligently, and voluntarily waive the right to conflict-free counsel. But a court on notice of a conflict has a duty to inquire into the propriety of continued representation by current counsel. People v. Campbell, 58 P.3d 1148 (Colo. App. 2002).

Although there is no per se rule requiring reversal if the court fails to inquire into counsel's conflict of interest, reversal is required if the defendant shows a conflict of interest that adversely affects counsel's representation. People v. Campbell, 58 P.3d 1148 (Colo. App. 2002).

Balancing test to determine whether defendant may waive conflict-free representation. The trial court must examine: (1) The defendant's preference for particular counsel; (2) the public's interest in maintaining the integrity of the judicial process; and (3) the nature of the particular conflict. People v. Nozolino, 2013 CO 19, 298 P.3d 915.

Waiver of counsel cannot be voluntary if based upon impermissible choice. Where attorney's actions are constitutionally deficient, trial court's improper denial of motion for substitute counsel effectively forces defendant to choose between his right to counsel and other trial rights. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Where defendant proceeds pro se after erroneous denial of request for new counsel, any violation of sixth amendment rights results in a complete denial of right to counsel. Such complete violations constitute structural errors in the trial process and warrant a new trial. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Waiver may take the form of an express statement or may be implied from the circumstances. King v. People, 728 P.2d 1264 (Colo. 1986).

Waiver not found where evidence showed defendant's repeated assertions of his desire to be represented by counsel at trial and repeated seeking of assistance of privately retained or court-appointed counsel. King v. People, 728 P.2d 1264 (Colo. 1986).

But before the court permits a waiver of counsel, the defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open. People v. Campbell, 58 P.3d 1148 (Colo. App. 2002).

To conclude that defendant made an implied waiver, the record as a whole must establish that the defendant knowingly and voluntarily undertook a course of conduct that shows an unequivocal intent to abandon legal representation. The record may include those reasons proffered by the defendant, together with his or her background, experience, and conduct. King v. People, 728 P.2d 1264 (Colo. 1986); People v. Stanley, 56 P.3d 1241 (Colo. App. 2002); People v. Alengi, 114 P.3d 883 (Colo. App. 2004), rev'd on other grounds, 148 P.3d 154 (Colo. 2006).

Waiver of right to counsel not upheld where conduct of defendant might imply a "voluntary" waiver of right to counsel, but where the record did not establish that the implied waiver was knowing and intelligent, where the defendant's status as co-counsel or pro se party was never clarified or decisively determined by the court, and where the defendant clearly expressed his desire for counsel at every possible opportunity. People v. Arguello, 772 P.2d 87 (Colo. 1989).

Although every possible presumption against waiver of the right to representation should be indulged, a waiver may be implied if it is shown that a defendant knowingly and willingly undertook a course of conduct that revealed his intent to relinquish that right. People v. Rocha, 872 P.2d 1285 (Colo. App. 1993).

Absent waiver, no imprisonment unless representation by counsel. Absent a knowing and intelligent waiver, no person may be imprisoned for any offense however classified unless he was represented by counsel at his trial. People v. Roybal, 618 P.2d 1121 (Colo. 1980).

Court's responsibility to ascertain accused's intelligent waiver of right to counsel. The responsibility of the trial court when confronted with a request for self-representation is to ascertain whether the accused knowingly and intelligently decides to forego the traditional benefits associated with the right to counsel. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980).

A court must make a careful inquiry of a defendant who, having previously indicated a desire to be represented, appears without counsel. This duty to inquire does not require the trial court to maintain a continuing vigilance over the financial affairs of the accused. People v. Alengi, 114 P.3d 883 (Colo. App. 2004), aff'd, 148 P.3d 154 (Colo. 2006).

A defendant may not manipulate the right to counsel in a manner that will impede the effective and efficient administration of justice. People v. Alengi, 114 P.3d 883 (Colo. App. 2004), aff'd, 148 P.3d 154 (Colo. 2006).

A trial court is not compelled to grant a criminal defendant's request to withdraw a valid waiver of the right to counsel, but must exercise its discretion in evaluating the circumstances surrounding the request. People v. Price, 903 P.2d 1190 (Colo. App. 1995).

If a defendant relinquishes the right to representation by counsel, that defendant also relinquishes the right to pursue any claim of ineffective assistance in the event that advisory counsel is appointed. People v. Downey, 994 P.2d 452 (Colo. App. 1999), aff'd, 25 P.3d 1200 (Colo. 2001).

However, defendant may assert an ineffective assistance of counsel claim if advisory counsel exceeds his role as advisory counsel and exercises a degree of control appropriate for legal representation. Limits imposed upon advisory counsel's unsolicited participation: (1) A pro se defendant must be allowed to control the organization and content of his own defense; and (2) advisory counsel may not, through unrequested participation, destroy the jury's perception that the defendant represents himself. Downey v. People, 25 P.3d 1200 (Colo. 2001).

Appropriate standard for appellate review of the validity of an in-court waiver of the right to counsel requires that, when defendant asserts such a waiver was invalid, the prosecution must establish a prima facie case that the waiver was effective. When the prima facie case has been established, the defendant may overcome it by presenting evidence from which it could be reasonably inferred that the waiver was not voluntary, knowing, and intentional. Prosecution need not demonstrate validity of waiver by clear and convincing evidence. People v. Arguello, 772 P.2d 87 (Colo. 1989); People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).

A waiver cannot be knowing and intelligent unless the record clearly establishes that the defendant understands: The nature of the charges; the statutory offenses included within them; the range of allowable punishments; possible defenses to the charges and circumstances in mitigation; all of the facts essential to a broad understanding of the whole matter; and the requirement of complying with the rules of procedure at trial. People v. Arguello, 772 P.2d 87 (Colo. 1989); People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).

The trial judge's benchbook provides several questions a trial court should ask every defendant who seeks to proceed pro se. People v. Arguello, 772 P.2d 87 (Colo. 1989); People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).

In determining whether defendant's waiver is knowing and intelligent, the court must not only look at the advisement but also weigh the totality of the circumstances. People v. Arguello, 772 P.2d 87 (Colo. 1989); People v. Stanley, 56 P.3d 1241 (Colo. App. 2002); People v. Alengi, 114 P.3d 883 (Colo. App. 2004), rev'd on other grounds, 148 P.3d 154 (Colo. 2006).

A defendant's statement that he is aware of the right to counsel and desires to waive the right does not automatically end the court's responsibility. People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).

The two-part test to determine if a defendant has validly waived the right to counsel articulated in People v. Arguello, 772 P.2d 87 (Colo. 1989), provides an analytical framework that appropriately considers whether mental illness should prevent the defendant from representing himself or herself at trial. Therefore, it is unnecessary for Colorado to adopt the U.S. supreme court's competency standard stated in Indiana v. Edwards, 554 U.S. 164 (2008), for mentally ill defendants who wish to represent themselves. People v. Davis, 2015 CO 36M, 352 P.3d 950.

Defendant's express waiver held invalid where the trial court's inquiries were not adequate to establish that defendant was aware of the dangers and disadvantages of self-representation. But a court's failure substantially to comply with this requirement does not alone preclude a valid implied waiver. People v. Arguello, 772 P.2d 87 (Colo. 1989); People v. Stanley, 56 P.3d 1241 (Colo. App. 2002).

Trial court did not adequately ascertain that defendant knowingly, intelligently, and voluntarily decided to represent himself or herself. Defendant did not impliedly waive his or her right to counsel where, under the totality of the circumstances, defendant's conduct did not show an unequivocal intent to give up his or her right. People v. Rawson, 97 P.3d 315 (Colo. App. 2004).

Competency to stand trial is not a substitute for the level of inquiry and degree of competency necessary for a valid waiver of counsel. People v. Rawson, 97 P.3d 315 (Colo. App. 2004).

Trial court erred by denying request for appointment of conflict-free counsel at state expense for sentencing hearing. Defendant neither expressly nor impliedly waived his right to counsel; he merely stated that he did not want to represent himself. Defendant did not knowingly and willingly undertake a course of conduct that demonstrated an unequivocal intent to relinquish his right to representation. People v. Wallin, 167 P.3d 183 (Colo. App. 2007).

Court did not condition defendant's request for continuance on defendant's waiver of right to counsel. The court stated that defendant could either continue with appointed public defender or proceed pro se and that, if defendant proceeded pro se, the court would consider the request for the continuance at that time. Although the court would not consider the request for continuance if defendant proceeded with the appointed public defender, it was reasonable to assume the request would be a delay tactic since the court had granted five previous continuances in order to allow defendant to secure private counsel. People v. Ruch, 2 013 COA 96, 374 P.3d 485, rev'd on other grounds, 2 016 CO 35, 379 P.3d 309.

The court of appeals cannot rule on a defendant's request to dismiss counsel and a motion to dismiss the appeal when the defendant is incompetent to proceed. A defendant can only waive the right to counsel when competent and when the defendant can make the waiver knowingly, voluntarily, and intelligently. A defendant must be competent to abandon an appeal. The court of appeals can order a limited remand to the district court for restoration proceedings pursuant to § 16-8.5-111 for future determination of motions to dismiss counsel and dismiss the appeal. People v. Liggett, 2 018 COA 94M, __ P.3d __.

G. Miranda Rights and Exclusion of Evidence for Violation.

The proper standard in analyzing whether a suspect's statements amount to an unambiguous or unequivocal request for counsel is whether a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. People v. Kutlak, 2016 CO 1, 364 P.3d 199.

Exclusion of incriminating statements given without assistance of counsel. Under Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), where an investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied the assistance of counsel and no statement elicited by the police during the interrogation may be used against him at a criminal trial. Bean v. People, 164 Colo. 593, 436 P.2d 678 (1968).

Before statement from suspect in custody is excluded from evidence by reason of Escobedo rule, there must be (1) interrogation by police, (2) a denial of the accused's request to consult with counsel, and (3) a failure to warn. Bean v. People, 164 Colo. 593, 436 P.2d 678 (1968).

Miranda warning does not automatically apply when a defendant is interrogated by foreign officials in a foreign jurisdiction. Generally voluntary statements elicited by foreign officials are admissible. People v. Gomez-Garcia, 224 P.3d 1019 (Colo. App. 2009).

There is a joint venture exception to the general rule that Miranda warnings are not required by foreign officials in a foreign country. The exception applies when American agents actively participate in questioning conducted by foreign officials or somehow use foreign officials as their interrogation agents to circumvent a Miranda warning. In this case, the American official's role was limited to providing intelligence to the foreign officials and being present when the suspect made the statements to the foreign officials. The American official did not participate in the limited questioning by the foreign officials, so there was no joint venture. People v. Gomez-Garcia, 224 P.3d 1019 (Colo. App. 2009).

While an officer is obligated to ensure that a suspect is aware of and understands his or her constitutional rights, an officer is under no obligation to provide a lengthier explanation of the rights or the consequences of waiving those rights when the suspect clearly indicates he or she understands the rights. The officer told the suspect that the victim died after the suspect indicated she understood the Miranda warning, therefore, it had no bearing on the suspect's ability to understand her constitutional rights or her ability to make a knowing and intelligent waiver of her rights. People v. Humphrey, 132 P.3d 352 (Colo. 2006).

Miranda advisement reasonably conveyed to defendant that he had a right to consult with counsel both before and during police interrogation. Carter v. People, 2017 CO 59M, 395 P.3d 124.

Officer gave defendant a sufficient Miranda advisement, and defendant was sufficiently coherent to validly waive his Miranda rights. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).

A request for counsel must be clear, unequivocal, and unambiguous. The court uses an objective inquiry to determine whether the request was clear, unequivocal, and unambiguous. In this case, defendant's statements related to an attorney were ambiguous. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).

"When can I talk to a lawyer?" is an unambiguous request for counsel. People v. Lynn, 2012 CO 45, 278 P.3d 365.

Under the totality of the circumstances, defendant's statements did not constitute an unambiguous request for counsel. Because defendant did not actually invoke his right to counsel, and because he otherwise validly waived his Miranda rights before making incriminating statements to a detective, his statements should not have been suppressed. People v. Kutlak, 2016 CO 1, 364 P.3d 199.

Defendant's invocation of the right to remain silent must be clear and unequivocal. Defendant did not clearly, unambiguously, and unequivocally invoke his right to remain silent. People v. Grenier, 2 00 P.3d 106 2 (Colo. App. 2008); People v. Richardson, 2014 COA 50, 350 P.3d 905.

Whether a statement is voluntary depends on the totality of the circumstances, which must demonstrate that the accused's statement is the product of his or her free will and rational choice. People v. Baird, 66 P.3d 183 (Colo. App. 2002).

Trial court erred in excluding statements based solely on the defendant's intoxication. Intoxication is only one factor the court can consider when considering the totality of circumstances. The record supports the defendant made a knowing and voluntary waiver of his or her rights despite his or her intoxication. People v. Platt, 81 P.3d 1060 (Colo. 2004); People v. Knedler, 2014 CO 28, 329 P.3d 242.

Defendant's statements were not voluntary. Defendant was interrogated by police in his hospital bed after repeatedly indicating that he wanted to speak to an attorney and did not want to answer their questions, the officers informed him that he was not entitled to an attorney because he was not in custody, and a police officer was posted outside his hospital room during his stay; in total these circumstances indicate that defendant' statements were not voluntary. Effland v. People, 240 P.3d 868 (Colo. 2010).

Based on the totality of the circumstances, police violated defendant's right to remain silent by continuing to conduct a custodial interrogation after defendant invoked his right to remain silent. Detective did not scrupulously honor defendant's right to remain silent. During the three interviews, defendant was in a "harried emotional state". Detective failed to immediately cease questioning once defendant invoked his right, detective failed to give new Miranda warnings before the second interview or the beginning of the third interview, defendant was questioned about the same crime in all three interviews, and detective cast doubt on the usefulness of having an attorney present. In total, detective's words and actions demonstrated defendant's right to remain silent would not be respected. People v. Bonilla-Barraza, 209 P.3d 1090 (Colo. 2009).

Defendant's statements were knowingly and voluntarily made and were not the product of custodial interrogation. People v. Patnode, 126 P.3d 249 (Colo. App. 2005).

Defendant not in custody for Miranda purposes when she gave incriminating statements at home to police. First, neither of the officers used physical restraint or force on defendant during the interview. Second, though defendant was never told that she was free to leave, she did not appear emotionally distraught, was calm, and never indicated that she wanted the interview to end. Third, the interview was brief, lasting no more than ten minutes. Fourth, though several officers were present in and around defendant's home, only two questioned defendant, and one participated in the conversation for only three or four minutes. Moreover, defendant's husband (who was also unrestrained) was nearby, and the officers' tones were conversational. Lastly, although the interview took place late at night during a response to an emergency call, it took place in defendant's kitchen and not in a secluded location. A reasonable person in defendant's position would not have believed that she or he was deprived of her or his freedom of action to the degree associated with a formal arrest. People v. Travis, 2 016 COA 88, 439 P.3d 18, rev'd on other grounds, 2 019 CO 15, 438 P.3d 718.

The encounters inside the defendant's house were in the afternoon and they were brief and conversational. The officers asked general investigatory questions focused on safety, rather than trying to force inculpatory statements. The officers gave no directions and did not try to restrain the defendant. People v. Garcia, 2017 CO 106, 409 P.3d 312.

Defendant not in custody for Miranda purposes when he made statements to police. Defendant's statements to police without Miranda advisement being given were admissible when, under the totality of the circumstances, defendant was not in custody when he made the statements. Factors weighing against the defendant being in custody were that: (1) the encounter occurred at defendant's home; (2) the encounter was brief; (3) the police officer's tone was conversational and his questions were non-confrontational and open-ended; (4) a deputy police chief on scene told defendant that he wasn't being arrested when he was asked to go outside to talk; (5) only one of the four officers on site asked defendant questions; and (6) defendant's statements were indifferent and deflecting and he did not confess to the crime he was being asked about. People v. Clark, 2020 CO 36, __ P.3d __.

Defendant's statements were voluntary since the record does not indicate there was any coercion in getting defendant to make the statements. The trial court's concern over the lack of a videotape of the interrogation, the quick initiation of the questioning after securing the Miranda waiver, and the abrupt end to the audiotape do not suggest that the defendant was coerced into making any statements. People v. Gonzales-Zamora, 251 P.3d 1070 (Colo. 2011).

Defendant's statements to police properly admitted. Defendant's statements were subject to the public safety exception or were volunteered. The court must determine in an evidentiary hearing that the statements were voluntary before admitting the statement. People v. Wakefield, 2 018 COA 37, 4 2 8 P.3d 639.

Hospital-bed interrogation was not custodial when police did not restrain defendant, they conducted the interview in a polite and non-confrontational manner, they repeatedly informed defendant that she was not in custody and was welcome to speak with a lawyer, and they terminated the interview minutes after defendant told them she wanted to end it. Because defendant was not in custody, there was no Miranda violation. People v. Theander, 2013 CO 15, 295 P.3d 960.

Defendant was not in custody during any portion of his conversation with a police officer while in the hospital. Under the totality of the circumstances, a reasonable person would not have believed that his or her freedom of action had been curtailed to the degree associated with a formal arrest. The police officer asked open-ended questions in narrative form; the officer did not assert his authority as a police officer during the conversation; the officer told the defendant he would be arrested after he was released from the hospital, indicating he was not in custody; and the conversation did not occur in seclusion, hospital personnel entered and left the room during the conversation. People v. Sampson, 2017 CO 100, 404 P.3d 273.

Defendant's statements to officers at her home not involuntary. Though defendant was not given a Miranda warning prior to the interview, none was required. In addition, defendant was not physically isolated from her husband. Finally, there was no evidence of any coercive behavior by the police, a condition precedent to a finding of involuntariness. People v. Travis, 2 016 COA 88, 439 P.3d 18, rev'd on other grounds, 2 019 CO 15, 438 P.3d 718.

The presence of multiple officers, even displaying weapons, does not automatically yield custody. The relevant inquiry is the degree of governmental coercion directed at the suspect. There is a distinction between the number of officers generally present at a scene and the number of officers focused on the defendant. People v. Garcia, 2017 CO 106, 409 P.3d 312.

Statements made at police station not involuntary because record is devoid of any evidence of coercive conduct there. People v. Travis, 2 016 COA 88, 439 P.3d 18, rev'd on other grounds, 2 019 CO 15, 438 P.3d 718.

Defendant's statements to security guard properly admitted. Under the totality of the circumstances, the security guard was not operating as an agent of the police for purposes of a criminal investigation. People v. Wakefield, 2 018 COA 37, 4 2 8 P.3d 639.

Defense counsel's failure to raise suppression assertions in the trial court that counsel raised on appeal resulted in forfeiture, instead of waiver, and required plain error review. Phillips v. People, 2019 CO 72, 443 P.3d 1016.

Defendant did not make a knowing and intelligent waiver of his Miranda rights because of the combined effects of translator's inadequate translation, substantial miscommunication between parties, and defendant's cultural background and limited intellectual functioning. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Translator did not adequately translate because of her own lack of understanding of the meaning of the rights. Translation was also flawed because the translator interrupted defendant, improperly summarized his responses, and did not always effectively explain instructions to him. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Miscommunication demonstrated that parties "frequently had no idea what the other was talking about". Miscommunication between parties took two forms: Interruptions by the interrogating officer and the interpreter, and unresponsive and nonsensical answers by the defendant. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Where defendant was functionally illiterate and had recently emigrated to the United States from a culture that had an entirely different cultural conception of legal disputes, defendant's cultural background and limited intellectual ability contributed to his inability to understand his Miranda rights. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

In considering the intoxication factor, the following issues are relevant: Whether the defendant seemed oriented to the surroundings and situation; whether the defendant's answers were responsive and appeared to be the product of a rational thought process; whether the defendant was able to appreciate the seriousness of the situation; whether the defendant had the foresight to attempt to deceive police in hopes of avoiding prosecution; whether the defendant expressed remorse for his or her actions; and whether the defendant expressly stated he or she understood their rights. People v. Platt, 81 P.3d 1060 (Colo. 2004); People v. Knedler, 2014 CO 28, 329 P.3d 242.

When a defendant's actions in waiving Miranda rights demonstrate lucidity and rationality, defendant makes the waiver knowingly and intelligently. People v. Jewell, 175 P.3d 103 (Colo. 2008).

Volunteered statements not in response to interrogation not excluded. Where defendant, having been given the full warning of his constitutional rights on numerous occasions, requests to have an attorney before a lie detector test is disclosed, such request does not foreclose police from offering testimony concerning volunteered statements not in response to interrogation, made by defendant after he came face-to-face with person he had accused of participating in the robbery-murder. People v. Smith, 179 Colo. 413, 500 P.2d 1177 (1972).

Where defendant made an incriminating statement voluntarily and not in response to a question, his rights were not violated by its use at trial, even though he was not accompanied by counsel at the time he made the statement. Olguin v. People, 179 Colo. 26, 497 P.2d 1254 (1972).

Where defendant, after being informed of his Miranda rights and requesting counsel, asked a detective a question and then made an incriminating statement in response to the detective's answer, the response was voluntary and not a product of interrogation and, therefore, was admissible. People v. Knight, 167 P.3d 147 (Colo. App. 2006).

Defendant not subject to interrogation before receiving Miranda warning because detective's statements were not the functional equivalent of direct questioning. Detective's pre-Miranda warning statements were not intended to elicit an incriminating response, should not have been recognized as likely to elicit an incriminating response, and did not in fact elicit an incriminating response. Instead, detective's statements appear to have been an explanation of why defendant was being interviewed. People v. Madrid, 179 P.3d 1010 (Colo. 2008).

Where defendant made voluntary, knowing and intelligent waiver of his right to counsel and his right to remain silent, the trial court's ruling that the oral statement of the defendant was admissible is not error. Dyett v. People, 177 Colo. 370, 494 P.2d 94 (1972); People v. Blessett, 155 P.3d 388 (Colo. App. 2006).

Defendant's course of conduct indicated that he knowingly, intelligently, and voluntarily waived his Miranda rights. Defendant acknowledged that he understood his rights, answered the officer's questions without hesitation, had numerous opportunities to pause and invoke his rights and failed to do so until the officer told him that witnesses had identified him as the shooter. People v. Martin, 222 P.3d 331 (Colo. 2010).

Defendant's waiver was voluntary since the record lacked any evidence of government intimidation, misconduct, or trickery. Defendant's waiver was knowing and intelligent even though he did not provide any verbal responses, and defendant's non-verbal cues indicated that he was aware of and comprehending the rights he was waiving. People v. Gonzales-Zamora, 251 P.3d 1070 (Colo. 2011).

The trial court erred as a matter of law finding that the defendant's statements were involuntary. The court must find that the defendant's will had been overborne by coercive official action to make a finding that the defendant's statements were involuntary. People v. Wood, 135 P.3d 744 (Colo. 2006).

Record supports trial court's finding that defendant's will was not overborne by police conduct or coercion and that his waiver and subsequent statements were voluntary. Although the interview began in a confrontational manner and officers were initially aggressive with defendant, after that initial tension, interrogation became civil and calm. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

Defendant's failure to request counsel did not bar application of Escobedo rule. Nez v. People, 167 Colo. 23, 445 P.2d 68 (1968); People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

Alleged error in introducing defendant's admission at trial held not reviewable on appeal. Alleged error in introducing at trial, through the testimony of a police officer, defendant's post-arrest admission of his age, which was made without benefit of counsel, was not reviewable on appeal where no contemporaneous objection was made to the evidence and the alleged error was not raised in the motion for new trial. People v. Chavez, 179 Colo. 316, 500 P.2d 365 (1972).

No reason exists for exclusion of evidence obtained from uncounseled witness so long as the evidence obtained is not offered against that witness. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

Whether one is in custody for purposes of Miranda rights is a factual determination to be made by the trial court. If defendant was not in custody, he may not have statements suppressed. People v. Braxton, 807 P.2d 1214 (Colo. App. 1990).

But for purposes of appeal, determining whether a person is in custody for Miranda purposes is a mixed question of law and fact that requires de novo review by the appellate courts. People v. Matheny, 46 P.3d 453 (Colo. 2002); People v. Elmarr, 181 P.3d 1157 (Colo. 2008); People v. Barraza, 2013 CO 20, 298 P.3d 922.

The court erred by applying the standard for fourth amendment seizures to the question of custody for Miranda purposes. People v. Hughes, 252 P.3d 1118 (Colo. 2011).

Miranda warnings are not required in routine traffic stops, especially where the offense for which the defendant was stopped will result in only the issuance of a summons. People v. Clements, 665 P.2d 624 (Colo. 1983).

Miranda warnings are not required when the interrogation occurs over the telephone. People v. Platt, 81 P.3d 1060 (Colo. 2004).

In determining whether interaction between police and a suspect constitutes interrogation under Miranda, the primary focus is on the perceptions of the suspect, but the intent of the police may have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. People v. Shetewi, 679 P.2d 1107 (Colo. App. 1983).

Defendant's statement was not result of the custodial interrogation. Defendant stated "I done bad" while holding a knife to his throat after the officer asked him "What are you doing?" Under the totality of circumstances, there was no custodial interrogation. People v. Vigil, 104 P.3d 258 (Colo. App. 2004), rev'd on other grounds, 127 P.3d 916 (Colo. 2006).

The police did not pose any question to the defendant that prompted the statement about the fanny pack, nor did they make any statements or take any actions that they should have known were reasonably likely to elicit an incriminating response, thus there was no Miranda violation as to that statement. People v. Milligan, 77 P.3d 771 (Colo. App. 2003).

Nontestimonial evidence obtained after defendant initiates further communication and makes a voluntary statement about the evidence's location is admissible , even after law enforcement issues a Miranda advisement and defendant states that he does not want to speak further. People v. Dunlap, 124 P.3d 780 (Colo. App. 2004).

In determining whether questioning of an inmate was "custodial" for purposes of a Miranda advisement, a different standard must be applied. The court must look at the totality of the circumstances to determine whether the questioning involved an added imposition on the inmate's freedom of movement. People v. Parsons, 15 P.3d 799 (Colo. App. 2000).

Defendant should have been advised of his Miranda rights because he was in custody when officer proceeded to interrogate him after finding pot pipe during valid consensual pat down search. People v. Thomas, 839 P.2d 1174 (Colo. 1992).

Routine police encounter turned into a custodial situation following a failed sobriety test; defendant was physically surrounded by officers, was not free to go during questioning, and had "objective reasons to believe that he was under arrest"; such circumstances constituted custody. Incriminating statements made by defendant prior to being advised of his Miranda rights were consequently suppressed. People v. Null, 233 P.3d 670 (Colo. 2010).

Court erred in finding defendant was not in custody during interview. The record shows defendant had been arrested, handcuffed, and transported to a secure interview room with officers where he was interviewed for about two hours. A reasonable person in that situation would believe that he was not free to leave, even though defendant was questioned about offenses other than those for which he was arrested. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

Trial court erred by failing to consider the totality of the circumstances in determining that defendant was in custody. The trial court cannot suppress defendant's statements made in response to police interrogation without a Miranda warning based solely on the fact that, after the polygraph test, the detective told defendant that she failed and that she lied. People v. Pittman, 2012 CO 55, 284 P.3d 59.

Defendant's incriminating statements were obtained in violation of his Miranda rights, and trial court's order to suppress the statements was appropriate. A reasonable person in defendant's circumstances would have felt deprived of his or her freedom of action in a manner similar to a formal arrest. Therefore, defendant was in custody and subject to interrogation without being advised of his Miranda rights. People v. Holt, 233 P.3d 1194 (Colo. 2010).

Under the totality of the circumstances, a reasonable person in defendant's position would not have felt restrained to the degree associated with formal arrest. The totality of the circumstances, including the neutral location, the lack of force or physical restraint, and the conversational tone of questioning does not suggest custody. Consequently, defendant was not in custody for purposes of Miranda, and the trial court erred in suppressing his statements. People v. Davis, 2019 CO 84, 449 P.3d 732.

Record supports court's finding that defendant was not in custody during second interview. Defendant was interviewed after being released while assisting the police as a confidential informant. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

A calm emotional state suggests a person does not feel the pressures associated with custody. People v. Garcia, 2017 CO 106, 409 P.3d 312.

Defendant's statements during his polygraph were voluntary, and defendant's will was not overborne. Defendant was not in custody, waived his Miranda rights, waived the right to counsel, was mostly articulate and in control during the interview, and immediately continued with the interview after suggesting he needed to get home soon. People v. Curtis, 2 014 COA 100, 350 P.3d 949.

Miranda warnings not required when defendant was not in custody at time of detective's brief questioning. Defendant was not in custody when police officers asked him to sit outside his home with other occupants of the home while the officers searched it. People v. Mumford, 275 P.3d 667 (Colo. App. 2010), aff'd, 2012 CO 2, 270 P.3d 953.

Defendant was not in custody when a consensual interview took place at the defendant's residence and in the presence of defendant's wife. People v. Cowart, 244 P.3d 1199 (Colo. 2010).

Defendant not in custody in the front yard of her house. The conversations between defendant and each officer lasted less than seven minutes. A front yard is familiar to the defendant and open to the public. Defendant was indifferent to the officers, so she was not succumbing to any allegedly coercive police influences. The defendant was never physically restrained and the officers made no threats, promises, or even references to criminal liability. Under the totality of the circumstances, a reasonable person in defendant's position during the contacts in the front yard would not have felt that his or her freedom of action had been curtailed to a degree associated with formal arrest. People v. Garcia, 2017 CO 106, 409 P.3d 312.

Defendant not in custody. The interrogation took place in broad daylight and lasted less than 15 to 2 0 minutes. The deputies spoke in normal tones, did not display their weapons, and did not threaten or accuse the defendant. Based on the totality of the circumstances, a reasonable person would not have found his or her freedom of action deprived to the degree associated with a formal arrest. People v. Allman, 2 012 COA 212, 321 P.3d 557.

No custodial interrogation. Defendant was interviewed on the street in daylight, and the police did not exhibit the type of force generally associated with arrest. Even though the officer testified that he would have arrested defendant had he tried to leave, the officer's subjective thoughts are not relevant to whether defendant was in custody for Miranda purposes. People v. Pleshakov, 2013 CO 18, 298 P.3d 228.

Military defendant was not in custody when military police brought him to provost marshal's office for questioning by civilian police. Although the defendant was taken in handcuffs to the interview, they were removed prior to the interview, the military police left, and the civilian police officer told the defendant that he was not under arrest and was free to leave at any time. Although the military command structure might have led a member of the military to think he was under orders to participate in an interview, that in itself is not enough to create a custodial interview. Marko v. People, 2018 CO 97, 432 P.3d 607.

Defendant not in custody and statements voluntary. Although defendant was taken by military police to deputies for questioning, once he arrived the deputies told him he was free to leave at any time, and the handcuffs used by the military police were removed. A reasonable person in that position would not have believed their freedom of movement was restricted to the same degree as someone under arrest. People v. Marko, 2 015 COA 139, 434 P.3d 618, aff'd, 2 018 CO 97, 432 P.3d 607.

Statements made by the defendant to a police informant are admissible and did not violate the defendant's right to counsel. People v. Aalbu, 696 P.2d 796 (Colo. 1985).

It was harmless error for the judge to conduct an ex parte interview of a child victim prior to a sentencing hearing under circumstances in which the record of the interview demonstrated that the child's statements were already available to the court through other means. People v. Loyd, 902 P.2d 889 (Colo. App. 1995).

Questioning must cease upon request for counsel. Once the accused has asked for counsel, questioning by law enforcement officers must be terminated immediately and may not be resumed until counsel is present. People v. Pierson, 633 P.2d 485 (Colo. App. 1981), aff'd in part and rev'd in part on other grounds, 670 P.2d 770 (Colo. 1983); People v. Benjamin, 732 P.2d 1167 (Colo. 1987).

Police questioning should immediately cease when the defendant expresses a need to consult an attorney. People v. Cook, 665 P.2d 640 (Colo. App. 1983); People v. Martinez, 789 P.2d 420 (Colo. 1990).

Where defendant's request for counsel pursuant to Miranda was ambiguous and equivocal, interrogating officer's subsequent clarifying questions were permissible. People v. Broder, 222 P.3d 323 (Colo. 2010).

Statement by defendant's attorney in a proceeding unrelated to an investigation did not constitute a request for counsel. This conclusion is based upon the following: The supreme court has never held that a person can invoke his or her Miranda rights anticipatorily in a context other than custodial interrogation; the fifth amendment right to counsel is a personal right that may be invoked only by suspect; counsel's statement was made to a court and not to an investigatory law enforcement authority; and the invocation of the sixth amendment right to counsel does not invoke the fifth amendment right to counsel. People v. Vasquez, 155 P.3d 588 (Colo. App. 2006).

"I should talk to a lawyer . . . because I want to go to trial on this." was a sufficient request for counsel under the totality of the circumstances. Oral and written statements made after the request must be suppressed. People v. District Court, 953 P.2d 184 (Colo. 1998).

Thirty-second pause did not constitute the cessation of interrogation by police and the voluntary resumption by defendant. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Defendant's statements that "I'm going to have to talk to an attorney about that" and response of "well, yeah" when asked if he wanted "to talk to a lawyer now" constituted an unambiguous and unequivocal request for counsel during interrogation, and the trial court properly suppressed defendant's subsequent incriminating statements. People v. Bradshaw, 156 P.3d 452 (Colo. 2007).

When an accused makes an ambiguous statement that might reasonably be construed as a request for counsel, interrogation must cease immediately except for very limited questions to clarify the ambiguous statement or to clarify the defendant's wishes regarding the presence of counsel. People v. Benjamin, 732 P.2d 1167 (Colo. 1987).

Else statements inadmissible. Once the accused has requested counsel, any statements made in response to further interrogation by the law enforcement officers are inadmissible. People v. Pierson, 633 P.2d 485 (Colo. App. 1981), aff'd in part and rev'd in part on other grounds, 670 P.2d 770 (Colo. 1983).

Defendant's statement to police made after request for counsel was result of unlawful interrogation, and, since such statement contained the only evidence of an element of the crime (forgery), use of the statement at trial constituted prejudicial error. People v. Johnson, 712 P.2d 1048 (Colo. App. 1985).

Defendant's initial request for counsel not ambiguous and police officer's assurance that defendant was not being questioned about a specific crime and that he did not need an attorney to answer questions about that crime did not render the request for counsel ambiguous. People v. Kleber, 859 P.2d 1361 (Colo. 1991).

Fact that the police deliberately failed to disclose to the defendant the subject matter of the interrogation cannot transform defendant's clear request for counsel into an ambiguous statement. People v. Kleber, 859 P.2d 1361 (Colo. 1993).

Defendant's refusal to take a truth verification exam without an attorney present was not an invocation of his right to counsel because he was still willing to continue the current interview without an attorney present. People v. Marko, 2 015 COA 139, 434 P.3d 618, aff'd, 2 018 CO 97, 432 P.3d 607.

Reinterrogation after release from custody. Defendant's request for counsel, made while in police custody and prior to release, does not prohibit police interrogation at a later time if defendant is properly advised of his rights before any subsequent interrogation; however, such reinterrogation is not permissible if the defendant's release was contrived, pretextual, or done in bad faith. People v. Trujillo, 773 P.2d 1086 (Colo. 1989).

Defendant did not unambiguously invoke his right to remain silent. Although defendant twice stated he needed to get home to his wife, he did not expressly indicate that he did not want to speak to the agent any further. People v. Curtis, 2 014 COA 100, 350 P.3d 949.

Defendant's statement "I want to go home" is not a clear assertion to cut off questioning. People v. Marko, 2 015 COA 139, 434 P.3d 618, aff'd, 2 018 CO 97, 432 P.3d 607.

Evidence held inadmissible where it was obtained after police officer told defendant not to talk to his attorney. People v. Hyun Soo Son, 723 P.2d 1337 (Colo. 1986).

Unless the court determines that the statements made were voluntary and that the statements themselves denote an intent to waive the right to counsel. Where an accused initiates further conversations with the police and makes additional statements after the police have ceased questioning him, a valid waiver of the right to counsel may be determined by the totality of the circumstances. People v. Fox, 691 P.2d 349 (Colo. App. 1984); People v. Martinez, 789 P.2d 420 (Colo. 1990).

Unless defendant initiates conversation. However, where defendant, properly advised of his rights, initiated a conversation with detective and the detective's response was not custodial interrogation, the trial court did not err in admitting the defendant's statements into evidence. People v. Morgan, 681 P.2d 970 (Colo. App. 1984).

Trial court erred in suppressing voluntary statements made by arrestee to police investigator. Arrestee initiated conversation with the investigator and the investigator did not deliberately elicit statements from the arrestee. The court, upon finding that the arrestee was not being subjected to interrogation, need not have considered whether the arrestee waived his fifth or sixth amendment rights. People v. Ross, 821 P.2d 816 (Colo. 1992).

The passage of a short period of time is not an insurmountable obstacle to finding that a defendant reinitiated an interrogation conversation. People v. Leyba, 2 019 COA 144, __ P.3d __.

No readvisement of Miranda rights required for voluntary statement made after police ended interrogation because of request for counsel. People v. Rivas, 13 P.3d 315 (Colo. 2000).

Case remanded for further findings of fact to determine whether the questioned statement was obtained as a product of custodial interrogation in violation of Edwards and Miranda. People v. Martinez, 789 P.2d 420 (Colo. 1990).

Two inquiries must be made when the defendant seeks to suppress statements on the basis that governmental officials improperly ignored a request for counsel: (1) Whether an accused actually invoked his right to counsel; and (2) if so, whether that request was scrupulously honored. People v. Benjamin, 732 P.2d 1167 (Colo. 1987).

Where defendant's lawyer was denied access to defendant during interrogation in which confessions were obtained, defendant was denied the right to counsel, and all of defendant's statements made after defendant's counsel arrived at police station to see him were inadmissible. People v. Harris, 703 P.2d 667 (Colo. App. 1985).

The general rule is that statements will be admitted after retention of counsel where the accused initiates the conversation, there is a valid waiver of the right to counsel and the right to remain silent, and the defendant's statements were voluntary. People v. Tafoya, 703 P.2d 663 (Colo. App. 1985).

Reading Miranda rights not necessarily sufficient to purge taint of initial illegal questioning. Simply reading a defendant his Miranda rights is not necessarily sufficient to purge the taint of an initial illegal questioning by breaking the causal chain between that questioning and the statement obtained subsequent to the time the defendant received his Miranda rights. People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980).

However, the United States supreme court in Oregon v. Elstad, 105 U.S. 1285, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), ruled that a careful and thorough administration of Miranda warnings may cure the condition that rendered the previous unwarned statement inadmissible. People v. Harris, 703 P.2d 667 (Colo. App. 1985).

Justice Kennedy's concurring opinion in Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), is the controlling precedent to be applied in cases of a deliberate two-step interrogation aimed at undermining the Miranda warning. Verigan v. People, 2018 CO 53, 420 P.3d 247.

A two-step interrogation strategy is a strategy whereby police (1) purposefully question a defendant prior to giving the required Miranda warnings and elicit incriminating statements and (2) then provide the defendant with Miranda warnings and ask him or her to repeat the previous incriminating statements. Verigan v. People, 2018 CO 53, 420 P.3d 247.

When making a suppression determination, a trial court should conduct an initial inquiry into whether the people have proved by a preponderance of the evidence that the police did not deliberately use a two-step interrogation procedure to obtain a confession. If the court determines that the use of the procedure was deliberate, then the court should determine whether curative measures (for example, an additional warning or a substantial break in time and circumstances between the pre- and post-warning statements) were employed, such that the suspect would understand the import and effect of the warning at the time of the later statement. If not, then the statements are inadmissible. If, however, the trial court determines that the people proved that the police did not deliberately use a two-step technique to undermine Miranda, then it should apply the voluntariness test enunciated in Oregon v. Elstad cited in the annotation above. Verigan v. People, 2018 CO 53, 420 P.3d 247.

In deciding whether post-warning statements are inadmissible as the product of a deliberate two-step interrogation aimed at undermining the meaning and effect of the Miranda warnings, courts look to the totality of the circumstances, including both objective and subjective evidence. Verigan v. People, 2018 CO 53, 420 P.3d 247.

Based on the totality of the circumstances, the officers did not engage in a deliberate two-step interrogation to undermine the Miranda warning. The first interrogation at the scene was informal and intended to determine how to proceed while the second interrogation at the police station was conducted by a different officer in a more formal setting. Thus, the defendant's post-warning statement must be evaluated under the voluntariness standard. Verigan v. People, 2018 CO 53, 420 P.3d 247.

Based on the totality of the circumstances, officer did not engage in a deliberate two-step interrogation to undermine the Miranda warning. Therefore, the admission of evidence did not constitute plain error. Phillips v. People, 2019 CO 72, 443 P.3d 1016.

Even though defendant's initial voluntary statements to police officer prior to Miranda warnings were not admissible, defendant's subsequent confession, made after belated Miranda warnings were read to defendant, was admissible where there was no evidence that either the environment or the manner of the initial interrogation was coercive and, although belated, the reading of defendant's rights was complete and was completed three times. People v. Harris, 703 P.2d 667 (Colo. App. 1985).

Defendant's execution of a request for a determination of indigency form and fact that defendant was interviewed by an investigator from the public defender's office was not sufficient to constitute an unambiguous invocation of his right to counsel; therefore, subsequent voluntary waiver of right to counsel after being readvised of his rights by officer with no knowledge of earlier events was not obtained by impermissible police conduct and was not subject to suppression. People v. Benjamin, 732 P.2d 1167 (Colo. 1987).

Even if defendant was placed under arrest without probable cause, defendant knowingly and voluntarily waived his right to remain silent, and, thus, his second statement to police chief did not require suppression as product of illegal arrest, where probable cause to arrest existed within minutes after arrest and defendant received full and complete Miranda advisement before giving second statement. People v. Koolbeck, 703 P.2d 673 (Colo. App. 1985).

In determining whether a person is in custody for purposes of Miranda rights, a court must consider whether a reasonable person in the suspect's position would consider himself significantly deprived of his liberty. People v. Johnson, 671 P.2d 958 (Colo. 1983); People v. Thiret, 685 P.2d 193 (Colo. 1984); People v. Black, 698 P.2d 766 (Colo. 1984); People v. Gordon, 738 P.2d 404 (Colo. App. 1987); People v. Fury, 872 P.2d 1280 (Colo. App. 1993); People v. Baird, 66 P.3d 183 (Colo. App. 2002); People v. Trujillo, 75 P.3d 1133 (Colo. App. 2003); People v. Milligan, 77 P.3d 771 (Colo. App. 2003); People v. Howard, 92 P.3d 445 (Colo. 2004).

In deciding whether a reasonable person would believe himself or herself to be deprived of his or her freedom of action, the court must consider the totality of circumstances. The factors the court should consider are: The time, place, and purpose of the encounter; the persons present during the interrogation; the words spoken by the officer to the defendant; the officer's tone of voice and general demeanor; the length and mood of the interrogation; whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; the officer's response to any questions asked by the defendant; whether directions were given to the defendant during the interrogation; and the defendant's verbal or nonverbal response to such directions. People v. Howard, 92 P.3d 445 (Colo. 2004); People v. Elmarr, 181 P.3d 1157 (Colo. 2008); People v. Barraza, 2013 CO 20, 298 P.3d 922; People v. Garcia, 2017 CO 106, 409 P.3d 312.

Subjective intent of police officer is not a factor to consider in determining whether a suspect is in custody for purposes of Miranda warning. Court may not rest its conclusion that a defendant is in custody based upon a police officer's unarticulated plan to arrest the defendant. The standard is whether, after analyzing the totality of the circumstances, a reasonable person in the defendant's position would have felt deprived of freedom to the degree associated with a formal arrest. People v. Klinck, 259 P.3d 489 (Colo. 2011).

Voluntary statements made in violation of Miranda may be used for impeachment purposes. People v. Klinck, 259 P.3d 489 (Colo. 2011).

Although the majority of the factors indicated that investigator's conduct was coercive including violating defendant's Miranda rights, considering the totality of the circumstances, defendant's statements were voluntary because the investigators never overbore the defendant's will. Throughout the extensive questioning, the defendant recited the same series of events and volunteered information to the investigator's without prompting. People v. Liggett, 2014 CO 72, 334 P.3d 231.

And the police officer's subjective state of mind is not an appropriate standard for determining whether an individual has been deprived of his freedom of movement in any significant way under the fifth amendment of the U.S. Constitution. People v. Black, 698 P.2d 766 (Colo. 1984); People v. Howard, 92 P.3d 445 (Colo. 2004); People v. Klinck, 259 P.3d 489 (Colo. 2011).

Defendant was in custody for purposes of Miranda. Defendant was interrogated by police in his hospital bed after repeatedly indicating that he wanted to speak to an attorney and did not want to answer their questions, the officers informed him that he was not entitled to an attorney because he was not in custody, and a police officer was posted outside his hospital room during his stay; in total these circumstances indicate that defendant was in custody. Effland v. People, 240 P.3d 868 (Colo. 2010).

Not in custody for Miranda purposes. People v. Howard, 92 P.3d 445 (Colo. 2004).

Defendant not in custody for Miranda purposes where detective did not accuse defendant of committing a crime, merely asked defendant for his account of the events surrounding a shooting that had just occurred, and did not threaten or intimidate defendant. People v. Cisneros, 2 014 COA 49, 356 P.3d 877.

Interrogation, for purposes of the Miranda rule, does not include questions "normally attendant to arrest and custody" such as the routine gathering of basic identifying data needed for booking and arraignment. People v. Anderson, 837 P.2d 293 (Colo. App. 1992).

A defendant is not subject to "custodial" questioning when the detectives tell the defendant he or she is free to leave before the questioning begins and remind the defendant during the questioning. People v. Blessett, 155 P.3d 388 (Colo. App. 2006).

Detective's questioning to elicit incriminating response constituted custodial interrogation. Where detective intended to elicit an incriminating response from the defendant, detective's initial question to the defendant, "Do you know why you are here?", constituted custodial interrogation. People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980).

Whether an interrogation is custodial determined from totality of circumstances. People v. Thiret, 685 P.2d 193 (Colo. 1984).

Trial court's findings that police officers were dishonest with the defendant, that questioning took place in a private room, that the officers physically separated the defendant from the door, that significant portions of the interview were highly confrontational and accusatory, and that interrogating officer's questions provided all the details of the incident and were designed essentially to force agreement from the defendant were sufficient, under the totality of the circumstances, for the defendant to reasonably believe that he was in custody, despite officer's belief that defendant was not in custody until warrant was executed. People v. Minjarez, 81 P.3d 348 (Colo. 2003).

Interrogation includes any words or actions on the part of an interrogating officer that he or she should know are reasonably likely to elicit an incriminating response from the defendant. To determine if an officer should have known his or her actions or words were reasonably likely to elicit a response, the totality of the circumstances surrounding the statement are considered. The focus of inquiry is on whether the officer reasonably should have known his or her words or actions would cause the defendant to perceive that he or she was being interrogated. In this instance, the defendant's statements were in response to the detective's "relationship building" efforts, in response to information presented by the detective about the investigation, and in response to the detective's desire to get defendant's side of the story. In totality, the statements were the product of a custodial interrogation. People v. Wood, 135 P.3d 744 (Colo. 2006).

The transportation officer's questions did not constitute interrogation. The officer's questions were asked to determine the cooperation level of the defendant, and the officer had no reason to expect the questions would elicit an incriminating response. People v. Wilson, 2 01 2 COA 163M, 411 P.3d 11, rev'd on other grounds, 2015 CO 54M, 351 P.3d 1126.

Validity of waiver based on totality of circumstances. The ultimate question in situations where an initial Miranda advisement was given and a waiver obtained followed by a later interrogation not preceded by another Miranda advisement is whether, considering the totality of the circumstances, the defendant was sufficiently aware of the continuing nature of his constitutional rights as to render any subsequent statement the result of a knowing, intelligent, and voluntary waiver of those rights. People v. Chase, 719 P.2d 718 (Colo. 1986).

No violation of Miranda rights. Defendant was sufficiently advised of his Miranda rights after receiving three separate Miranda advisements, each of which were individually sufficient. Defendant's waiver was knowing and intelligent based on his questions regarding his rights and his indication that he understood his rights. Further, there is no evidence that his alleged intoxication precluded a knowing and intelligent waiver: The defendant was oriented to his surroundings and provided answers to the detective's questions and asked his own questions. Finally, defendant's waiver was voluntary since he did not face any societal or subjective pressures any different from anyone else in a similar situation. People v. Clayton, 207 P.3d 831 (Colo. 2009).

Defendant's statement after waiving his Miranda right was voluntary. People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006).

Intoxication does not per se preclude a defendant from making a voluntary waiver of his or her Miranda rights. The court must consider the totality of circumstances to determine whether the defendant was capable of understanding the nature and consequences of the rights being waived. People v. Cardenas, 25 P.3d 1258 (Colo. App. 2000).

Record required to show waiver of Miranda rights. A knowing, intelligent, and voluntary waiver of Miranda rights requires more than a silent record. People v. Chavez, 632 P.2d 574 (Colo. 1981).

Evidence held insufficient that defendant waived Miranda rights. People v. Chavez, 632 P.2d 574 (Colo. 1981).

When demand for counsel akin to effort to forestall trial. Prior rejection of the court's repeated offers to appoint counsel and continued opposition to any assistance from advisory counsel at all times made defendant's request for counsel on the day of trial more akin to a calculated effort to forestall the trial than to a legitimate request for legal assistance. People v. Lucero, 200 Colo. 335, 615 P.2d 660 (1980).

Interrogation by police in employer's office was custodial interrogation considering totality of circumstances including purpose of the interview, the words used by the officers, the setting and duration of the interview, and that defendant was never informed that he was free to leave. People v. LaFrankie, 858 P.2d 702 (Colo. 1993).

Physical evidence collected by swabbing of defendant's mouth following a Miranda violation properly admitted because the fruit of the poisonous tree doctrine does not apply to Miranda violations and the swabs were not collected in violation of the fourth or fifth amendment. People v. Bradshaw, 156 P.3d 452 (Colo. 2007).

For a confession to be involuntary, police coercion must play a significant role in obtaining it. The test is whether defendant's will was overborne by mentally or physically coercive conduct. Under the totality of circumstances, any threats or promises made during interrogation did not play a significant role in inducing defendant to confess. People v. Blessett, 155 P.3d 388 (Colo. App. 2006).

Coercive governmental action to render a statement involuntary means more than just misstatements or refusing to stop an interrogation when a defendant is upset. People v. Speer, 216 P.3d 18 (Colo. App. 2007).

Interrogation by the booking officer after defendant confessed did not require a new Miranda warning since the questioning was similar to the original questioning and was sought to clarify the previous statement. People v. Blessett, 155 P.3d 388 (Colo. App. 2006).

A defendant's spontaneous utterance will not be excluded where there is no interrogation. The defendant's statements recorded by a video camera while the detective was out of the room are admissible. The defendant does not have to consent to the recording before the statements may be admissible. People v. Wood, 135 P.3d 744 (Colo. 2006).

The totality of the circumstances determines whether an officer's questioning relates to an objectively reasonable need to protect the public from the immediate danger associated with a weapon. Under the facts of this case, the public safety exception applied and the officer was not required to give Miranda warnings before asking the defendant where the shotgun was located. Perez v. People, 2021 CO 5M, 479 P.3d 430.

The trial court did not make a constitutional error when it admitted the officer's statement to the jury that the defendant said he threw the shotgun away. Perez v. People, 2021 CO 5M, 479 P.3d 430.

H. Right to Counsel During Line-up.

It is constitutional error to conduct a line-up for identification purposes without presence of counsel unless waived by the suspect. Brady v. People, 175 Colo. 252, 486 P.2d 436 (1971).

Juvenile suspect is to be afforded same rights as adult with respect to line-up procedures. In re Rules by Juvenile Court, 178 Colo. 268, 496 P.2d 1014 (1972).

Line-up identification made prior to filing of charges is not tainted by the absence of defendant's consent or the absence of a warning to the defendant concerning the possible consequences of the line-up and the function of counsel. Massey v. People, 179 Colo. 167, 498 P.2d 953 (1972).

Line-up on unrelated charge with counsel present. A person properly detained on an unrelated charge can be exhibited in a line-up where he is advised of his rights and represented by counsel. People v. Hodge, 186 Colo. 189, 526 P.2d 309 (1974).

Where in-court identifications have source independent from line-up. Assuming absence of counsel at line-up, unfair suggestiveness that might lead to irreparable in-court misidentification does not result where the record supports an informed judgment that the in-court identifications have an independent source, separate and apart from the line-up. People v. Duncan, 179 Colo. 253, 500 P.2d 137 (1972).

Line-up information sheet found inadequate to advise accused of his right to counsel. People v. Bowen, 176 Colo. 302, 490 P.2d 295 (1971).

Line-up testimony properly excluded where the state did not meet its burden of showing by clear and convincing evidence that defendant was represented by counsel at the line-up. Fresquez v. People, 178 Colo. 220, 497 P.2d 1246 (1972).

Defendant not denied effective assistance of counsel at pretrial line-up when the attorney who represented him also appeared for a codefendant at the line-up and was later appointed to represent a codefendant who elected to testify for the prosecution if there was no evidence that counsel failed to safeguard the rights of the defendant or that counsel was ineffective in eliminating the hazards which make the line-up a critical stage of the proceedings. Ortega v. People, 178 Colo. 419, 498 P.2d 1121 (1972).

Where an attorney actually participated in the events that led up to the presentation of the participants in the line-up, that is, where he was permitted to confer with two of the persons who were placed for viewing; he conferred with the defendant; his efforts resulted in the defendant being viewed as clean-shaven, with his hair combed, to conform with that aspect of the appearance of the other members of the line-up; he was successful in having all such members placed in jackets to conform with the fact that defendant was wearing a jacket, albeit the defendant's was plaid; and he never objected as to the manner in which the line-up was conducted nor objected to the line-up itself, defendant could not claim that his right to counsel had been abridged. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971).

Where counsel for defendant was not allowed to be present during a police post line-up interrogation of an eyewitness, but where the court disregarded the line-up identification in rendering its decision, defendant was not deprived of his right to counsel. Stewart v. People, 175 Colo. 304, 487 P.2d 371 (1971).

Where the defendant asserts that the identification which occurred at the line-up was tainted because he had not been taken before a magistrate in accordance with the requirements of Crim. P. 5, and had, therefore, not been properly advised of his rights, he overlooked the fact that he signed advisement forms which fully complied with the dictates of Miranda and he was also represented by the public defender at the line-up and reversal, therefore, was not called for. People v. Bugarin, 181 Colo. 57, 507 P.2d 879 (1973).

Counsel need not be provided for photographic identification procedures. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972); People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

Counsel is not required at a photographic display or line-up which takes place during the investigative stage of the criminal proceeding. Brown v. People, 177 Colo. 397, 494 P.2d 587 (1972); People v. Bugarin, 181 Colo. 57, 507 P.2d 879 (1973); People v. Moreno, 181 Colo. 106, 507 P.2d 857 (1973); People v. Renfro, 181 Colo. 159, 508 P.2d 396 (1973); People v. Ortega, 181 Colo. 223, 508 P.2d 784 (1973).

Photographic identification while a criminal case is in the investigatory stage must be approved if the procedures used are not suggestive and do not coerce identification. Brown v. People, 177 Colo. 397, 494 P.2d 587 (1972).

Where a photographic line-up occurred more than one month prior to the filing of a formal charge, the issue of provision of counsel is shorn of its significance because counsel need not be provided to an accused at a line-up when the line-up occurred at the investigatory stage of the proceedings and before the commencement of the adversary criminal proceedings. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972).

Where the record showed that all photographic displays and line-ups were conducted during the investigative stages of the case, several months prior to the indictment of appellant, appellant was not, therefore, entitled to counsel either at the photographic displays or at the line-ups under these circumstances. People v. Lowe, 184 Colo. 182, 519 P.2d 344 (1974).

Where face-to-face identification preceded filing of information, there was no requirement of provision of counsel. People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972).

I. Effective Assistance of Counsel.

Law reviews. For comment, "Ineffective Assistance of Counsel Under People v. Pozo: Advising Non-Citizen Criminal Defendants of Possible Immigration Consequences in Criminal Plea Agreements", see 80 Colo. L. Rev. 793 (2009).

Competent counsel and defense satisfy court's obligation. When the state provides competent counsel, and that counsel ably and competently conducts the defense, the state has satisfied its constitutional obligation. Valarde v. People, 156 Colo. 375, 399 P.2d 245 (1965); Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971).

If the court appoints one attorney, that is sufficient, and the judge may assume his duty is fulfilled unless the defendant makes known some good reason why the counsel appointed could not fairly or properly represent him, or something comes to the court's attention which might reasonably so indicate. Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971).

Right of indigent defendant to assistance of counsel during critical stages of criminal proceeding is absolute, beginning with the accusatory stage, continuing through the arraignment, the actual trial on the merits of the cause, and culminating in the appellate phases of the criminal proceeding. Cruz v. Patterson, 253 F. Supp. 805 (D. Colo.), aff'd, 363 F.2d 879 (10th Cir.), cert. denied, 385 U.S. 975, 87 S. Ct. 501, 17 L. Ed. 2d 438 (1966).

In addition to an accused's guaranteed right to the presence of counsel at trial, such right is available to him at any stage of the prosecution, formal or informal, where the absence of counsel might derogate from his right to a fair trial. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971).

Indigent defendants convicted of a crime are entitled to have counsel appointed at state expense to represent them at trial and on review. Stanmore v. People, 157 Colo. 207, 401 P.2d 829, cert. denied, 380 U.S. 985, 85 S. Ct. 1355, 14 L. Ed. 2d 277 (1965); Adargo v. People, 159 Colo. 321, 411 P.2d 245 (1966).

Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, an unconstitutional line has been drawn between rich and poor. In re Griffin, 152 Colo. 347, 382 P.2d 202 (1963).

This principle is clear and unambiguous. Cruz v. Patterson, 253 F. Supp. 805 (D. Colo.), aff'd, 363 F.2d 879 (10th Cir.), cert. denied, 385 U.S. 975, 87 S. Ct. 501, 17 L. Ed. 2d 438 (1966).

The rationale is twofold: (1) The presence of a defense-oriented professional might serve to prevent the use of prejudicial identification measures, and (2) the absence of counsel at a line-up might deprive an accused of the ability effectively to reconstruct at trial any unfairness that occurred at the line-up and thus deprive him of his only opportunity meaningfully to attack the credibility of the witnesses' courtroom identification. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971).

Right to counsel requires effective assistance of advocate. The indigent, like the nonindigent, is entitled to the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf. The indigent is entitled to the full and complete assistance of counsel at all phases of the appellate review. It is inherent in such guarantee that counsel so appointed by the state shall be effective counsel. For counsel to be an effective representative of his client, he must be an advocate of that client's cause. Cruz v. Patterson, 253 F. Supp. 805 (D. Colo.), aff'd, 363 F.2d 879 (10th Cir.), cert. denied, 385 U.S. 975, 87 S. Ct. 501, 17 L. Ed. 2d 438 (1966).

Effective assistance of counsel is one of defendant's most fundamental rights. People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

The constitutional right to counsel requires that defense counsel render reasonably effective assistance. People v. Stroup, 624 P.2d 913 (Colo. App. 1980), rev'd in application of principle, 656 P.2d 680 (Colo. 1982).

A criminal defendant is entitled to receive the reasonably effective assistance of an attorney acting as his diligent and conscientious advocate. People v. Norman, 703 P.2d 1261 (Colo. 1985); People v. Benney, 757 P.2d 1078 (Colo. App. 1987).

And lack impairs other rights. Defendant's ability to assert any right may be seriously impaired by lack of effective assistance of counsel. People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

The mere presence of an attorney does not constitute effective representation of counsel. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971).

A defendant who expressly waives his or her right to assert ineffective assistance of counsel in a plea agreement can still raise that challenge on the question of whether the guilty plea was knowing, voluntary, and intelligent. People v. Stovall, 2 01 2 COA 7M, 284 P.3d 151.

In order to allege ineffective assistance of counsel, the defendant must demonstrate to the trial court that his trial counsel was guilty of palpable malfeasance, misfeasance, or nonfeasance. Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970); People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

Bad faith, sham, or farcical representation would have to appear to sustain a collateral attack against the conviction upon the theory of denial of effective assistance of counsel. Melton v. People, 157 Colo. 169, 401 P.2d 605 (1965), cert. denied, 382 U.S. 624, 86 S. Ct. 624, 15 L. Ed. 2d 528 (1966).

To prove a claim of ineffective assistance of counsel, defendant must establish: (1) C ounsel's performance fell below the level of reasonably competent assistance demanded of attorneys in criminal cases; and ( 2 ) the deficient performance prejudiced the defense. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different. People v. Dunlap, 1 2 4 P.3d 780 ( C olo. App. 2004); People v. Vieyra, 169 P.3d 205 (Colo. App. 2007); People v. Carmichael, 179 P.3d 47 (Colo. App. 2007), rev'd on other grounds, 206 P.3d 800 (Colo. 2009); People v. Sifuentes, 2017 COA 48M, 410 P.3d 730.

There is no dispute that trial counsel rendered deficient performance; therefore, defendant must establish he was prejudiced by that performance. To establish prejudice, defendant must provide some objective evidence supporting his self-serving claims of prejudice. There are three pieces of objective corroborating sources of evidence. First, defendant's attorney testified that he believed defendant rejected the plea bargain based on the attorney's deficient advice. Second, there was a large disparity in the sentence exposure that defendant's attorney told him he was facing compared to the actual sentence exposure. Finally, defendant was pursuing a plea bargain despite his claims of innocence. Carmichael v. People, 206 P.3d 800 (Colo. 2009).

When the ineffective assistance claim involves a rejected plea, the defendant must show a reasonable probability that the prosecution would not have withdrawn the offer and that the court would have accepted it. People v. Delgado, 2 019 C OA 55, 44 2 P.3d 1021 (holding that the United States supreme court overruled the C olorado supreme court's decision in Carmichael v. People, 206 P.3d 800 (Colo. 2009), on the test for showing prejudice where an attorney incorrectly advises a defendant during plea negotiations, resulting in the defendant rejecting a plea offer).

When determining the remedy in a case in which defendant's attorney provided ineffective assistance of counsel during plea negotiations, requiring the prosecution to re-offer the same deal is an option. When a plea offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial or when a mandatory sentence confines a judge's sentencing discretion after trial, resentencing alone does not provide full redress for the constitutional injury. People v. Delgado, 2 019 C OA 55, 44 2 P.3d 1021 (quoting Lafler v. C ooper, 566 U.S. 156 (2012), and holding that the United States supreme court overruled the Colorado supreme court's decision in Carmichael v. People, 206 P.3d 800 (Colo. 2009), on the remedies available where a defendant shows both ineffective assistance of counsel during plea negotiations and prejudice).

The appropriate remedy in this case in which defendant's attorney provided ineffective assistance of counsel during plea negotiations is a new trial. A new trial will restore the defendant to the position he enjoyed prior to his attorney's flawed performance, allowing the defendant to reengage in plea negotiations. Carmichael v. People, 206 P.3d 800 (Colo. 2009).

Counsel's failure to exercise peremptory challenges does not amount to ineffective assistance of counsel absent a showing that defendant was prejudiced by counsel's failure to exercise the challenges. People v. Vieyra, 169 P.3d 205 (Colo. App. 2007).

Incompetency of counsel. When trial counsel fails to prepare his client's case and offers representation that is no more than a sham and a facade and constitutes a mockery of justice, the claim of incompetency of counsel is well-founded. People v. White, 182 Colo. 417, 514 P.2d 69 (1973).

Competency of counsel. Defendant was not denied his constitutional right to the effective assistance of counsel. Defense counsel performed a sufficient investigation and follow-up of the mental health mitigation evidence. Defense counsel made a reasonable decision not to present the mental health mitigation evidence considering it would open the door to damaging malingering evidence. Assuming arguendo that the decision not to present the evidence was deficient, there was no prejudice to the alleged error since the strength of the evidence against defendant at the guilt and penalty phase was overwhelming. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

The right to effective assistance of counsel includes the right to conflict-free counsel. That right can be waived, however, by the defendant through a voluntary, knowing, and intelligent waiver. In this case, defendant provided a written waiver, and the court questioned defendant in regard to the waiver, finding defendant's waiver was voluntary, knowing, and intelligent. In addition, defendant's right to retain counsel of choice is entitled to great deference. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Defense counsel made a reasonable decision not to present evidence that defendant would be housed at a maximum security facility if sentenced to life imprisonment since the prosecution had contrary videotape evidence of convicted murderers in less secure facilities. Although defendant disagreed with the strategic choice, he did not prove that the decision fell below the "wide range of reasonable professional assistance". Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

The record does not support defendant's argument that the guilt phase opening statement fell below an objective standard of reasonableness. The strategic changes by the defense during trial that deviated from the opening statement were reasonable decisions considering the circumstances of the trial. Even if the guilt phase opening statement was deficient, defendant was not prejudiced. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

The record does not support defendant's argument that the opening statement during the penalty phase fell below an objective standard of reasonableness. The fact that the witnesses did not provide as graphic and effective testimony as hoped for does not render counsel's representation ineffective. Even if the penalty phase opening statement was deficient, defendant was not prejudiced. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Defense counsel's expression of dislike of defendant during the closing was part of a reasonable strategy to empower at least one juror to pick a life sentence instead of the death penalty. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Defense counsel's stipulation to defendant's gang affiliation was reasonable since it fit into the defense's theory that peer influence contributed to the crime. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Defense counsel devised a reasonable strategy not to object at every potential opportunity during the trial in order to maintain credibility with the jury and not call undue attention to the objectionable material. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Trial counsel's failure to exhaust all of defendant's peremptory challenges was not ineffective assistance of counsel. Defense counsel made a reasonable decision to accept the jury prior to exhausting all of the peremptory challenges to ensure he would be able to strike anyone the prosecution might add later. Defense counsel made a strategic choice entitled to deference. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Because defendant was advised orally or in writing of each of the asserted counsel errors, there was no deficient performance by counsel or prejudice. People v. Aguilar, 2 01 2 COA 181, 317 P.3d 1255.

Although counsel may have made some errors in advising the defendant to confess the motion to revoke the deferred judgment so that defendant could have the opportunity to go to a community corrections program, the alternative of contesting the revocation of the deferred judgment would not have been a reasonable option for the defendant. People v. Finney, 2 01 2 COA 38, 328 P.3d 205, aff'd on other grounds, 2014 CO 38, 325 P.3d 1044.

Attorney serving coconspirators not ineffective. Record fails to support any conclusion of ineffective assistance of counsel by the simple fact that the attorney involved served both conspirators. People v. Gutierrez, 182 Colo. 55, 511 P.2d 20 (1973).

The fact that others employ attorney for defendant does not necessarily result in conflict of interest, especially when defendant has full knowledge of the circumstances of the employment and when he knows he could have court-appointed counsel. Bresnahan v. Patterson, 352 F. Supp. 1180 (D. Colo. 1973).

One who has knowledge that he could have the court appoint counsel if desired and consents to representation by counsel employed by another for him cannot complain that counsel was ineffective without a showing of substantial prejudice to the defendant because of counsel's representation. Bresnahan v. People, 175 Colo. 286, 487 P.2d 551 (1971).

Defense counsel is responsible for trial strategy, and the defendant will not be heard to complain when trial strategy falls short of accomplishing an acquittal. People v. Moreno, 181 Colo. 106, 507 P.2d 857 (1973); People v. Shook, 186 Colo. 339, 527 P.2d 815 (1974).

Defense counsel's trial tactical decisions were reasonable. Defense counsel made a reasonable decision not to call experts when it was unclear that the testimony would have been beneficial. Defense counsel's decision not to call a witness to provide impeachment testimony that would have been duplicative of other defense witnesses was reasonable. Defense counsel did not err in failing to notify defendant about a one-month overlap of representation between defendant and a potential trial witness. Defense counsel's decision not to seek a full voluntary intoxication instruction was reasonable since the partial instruction may have been more beneficial to defendant. People v. Garner, 2 015 COA 174, 381 P.3d 3 2 0.

Right to assistance of counsel is not guarantee against mistakes of strategy or exercise of judgment in the course of a trial as viewed through the 20-20 vision of hindsight following the return of a verdict in a criminal case. Dolan v. People, 168 Colo. 19, 449 P.2d 828 (1969); Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970); LaBlanc v. People, 177 Colo. 250, 493 P.2d 1089 (1972); Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972); People v. Shook, 186 Colo. 339, 527 P.2d 815 (1974); People v. Stroup, 624 P.2d 913 (Colo. App. 1980), rev'd in application of principle, 656 P.2d 680 (Colo. 1982).

When the alleged mistakes of appointed counsel are those of strategy or judgment only, a defendant's constitutional right to effective assistance of counsel is not in any way infringed. Evans v. People, 175 Colo. 269, 486 P.2d 1062 (1971).

Justice does not require errorless representation, but it does demand that counsel render reasonably effective assistance. People v. White, 182 Colo. 417, 514 P.2d 69 (1973).

The requirement for effective assistance of counsel does not mean that the defendant is constitutionally guaranteed such assistance as will result in his acquittal at trial. People v. Johnson, 638 P.2d 61 (Colo. 1981).

And does not guarantee attorney with whose advice defendant can agree. The standard of effective assistance of counsel does not guarantee a defendant an attorney with whose advice he can agree. Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971).

Mere disagreement as to trial strategy does not equate with ineffective assistance of counsel. People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973).

In an ineffective counsel claim, a defendant who alleges that trial counsel who pursued a trial strategy over defendant's objection that prevented defendant from testifying at trial must show resulting prejudice from the trial strategy. Trial court counsel's strategy decision that limited the defendant's ability to pursue the constitutional right to testify does not constitute a conflict of interest. People v. Thomas, 2 015 COA 17, 411 P.3d 1 2 4.

Trial court made adequate inquiry into defendant's ineffective assistance of counsel and conflict of interest claims before rejecting the request. The trial court found with record support that defendant's dissatisfaction with trial counsel related to matters of trial preparation, strategy, and tactics, which are left to the discretion of counsel. In addition, trial counsel informed the court that she could continue representing defendant despite defendant's ethics complaint against her. People v. Davis, 2 01 2 COA 1, 412 P.3d 376, rev'd on other grounds, 2015 CO 36M, 352 P.3d 950.

Acts and omissions of attorney during trial are binding upon his client, particularly where the client cannot specify a constitutional right of which he was deprived by the inaction of his attorney. Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970).

Pretrial investigation necessary to effective counsel. In the absence of adequate pretrial investigation--both factual and legal--knowledgeable preparation for trial is impossible, and without knowledgeable trial preparation, defense counsel cannot reliably exercise legal judgment and, therefore, cannot render reasonably effective assistance to his client. People v. White, 182 Colo. 417, 514 P.2d 69 (1973).

Whenever defense counsel commits errors at trial which are a direct result of inadequate pretrial investigation or self-imposed ignorance of the law, his representation is incompetent and relief must be granted. People v. White, 182 Colo. 417, 514 P.2d 69 (1973).

Failure to investigate thoroughly the background of a key prosecution witness fell below the level of a reasonably competent attorney. People v. Davis, 759 P.2d 742 (Colo. App. 1988).

Client cannot require attorney to call witnesses, if there is no likelihood of the truth of the testimony that will be elicited and where the attorney's well-founded judgment is that its production at the trial would do more harm than good. Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971).

And failure to call them does not constitute reversible error. Failure of counsel to call to the stand and examine witnesses as desired by the defendant does not constitute reversible error. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971).

A refusal to call a particular witness because of an obedience to ethical standards which prohibit the presentation of fabricated testimony does not constitute ineffective assistance of counsel. People v. Schultheis, 638 P.2d 8 (Colo. 1981).

Failure of trial counsel to call certain witnesses or to propound certain hypothetical questions do not amount to ineffective assistance of counsel. People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973).

When and whether counsel has properly raised objections during trial is matter of trial strategy and technique. Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970).

Supreme court cannot second-guess petitioner's counsel insofar as valid defenses are concerned, particularly when the court is not informed as to the specific defense. Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970).

Court, and not defendant, will determine from record whether defense has been adequate. Valarde v. People, 156 Colo. 375, 399 P.2d 245 (1965).

But defendant controls three areas. There are three areas in which the will of the defendant must be allowed to prevail, namely: whether to plead guilty, whether to waive jury trial, and whether to testify; moreover, in making each of these decisions, the accused should have the full and careful advice of his lawyer. Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971); McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971).

Failure to object to effectiveness of counsel bars claim. The client will not be heard to complain that he was denied the effective assistance of counsel if he stands by, permits the case to be tried, and objects for the first time after receiving an adverse decision. Thompson v. People, 139 Colo. 15, 336 P.2d 93 (1959), cert. denied, 361 U.S. 972, 80 S. Ct. 606, 4 L. Ed. 2d 552 (1960); Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970).

Able representation of the defense of a criminal charge by associate counsel, where an attorney originally employed is engaged in another trial making discharge of his duty impossible, is not an impropriety, and defendants who make no complaint or objection to such representation until the filing of a motion for a new trial after conviction, are in no position to complain, their failure to apprise the court of their objection in good time amounting to acquiescence. Thompson v. People, 139 Colo. 15, 336 P.2d 93 (1959), cert. denied, 361 U.S. 972, 80 S. Ct. 606, 4 L. Ed. 2d 552 (1960).

Availability of remedy of trial de novo bars claim of ineffective assistance on counsel. Defendant, a 14 year old who was found guilty of reckless driving and sentenced to 90 days in jail, was not entitled to habeas corpus relief on the ground of alleged violation of his right to counsel where he did not appeal to county court where adequate remedy of trial de novo was available, but instead proceeded immediately by way of habeas corpus. Garrett v. Knight, 173 Colo. 419, 480 P.2d 569 (1971).

Failure of defense attorneys to present evidence favorable to defendant. Where defendant failed to receive a fair trial because of the failure of his trial attorneys to present any of the evidence favorable to the defendant which was clearly available and discoverable by even rudimentary investigation, and, as a result, the damaging prosecution's version of the incident was allowed to remain uncontradicted and unimpeached, even though there was evidence to challenge it, the defendant was denied his constitutional right to a fair trial which requires that the defendant's conviction be vacated and that he be afforded a new trial. People v. Moya, 180 Colo. 228, 504 P.2d 352 (1972).

Counsel sufficiently prosecuted appeal. In considering the questions of when the public defender is required to prosecute an appeal and the duties which he has on appeal, the Colorado supreme court held that since the public defender had prepared a brief presenting each of the points that the defendant urged as a basis for appeal, he had carried out the highest standards of the advocate in presenting his client's case. McClendon v. People, 174 Colo. 7, 481 P.2d 715 (1971).

Effective assistance of counsel is not denied when a trial court refuses to grant a short continuance after a mistrial. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

A criminal defendant does not have a constitutional right to counsel to pursue applications for review in the U.S. supreme court. Thus, a defendant cannot be deprived of the effective assistance of counsel by counsel's failure to timely file an application. People v. Dunlap, 1 2 4 P.3d 780 (Colo. App. 2 004); People v. Ray, 2015 COA 92, 378 P.3d 772.

Where following the refusal of the trial court to allow counsel to withdraw, counsel presented himself at the time scheduled for trial and ably and competently conducted the defense, and where the attorney appointed for the defendant had some 17 years experience, there is no evidence that defendant was denied a fair trial or that counsel failed in any way to adequately represent the defendant during the course and conduct of the trial. Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971).

Effective assistance of counsel was not denied defendant where there is no evidence to support the assertion that counsel did not keep defendant informed or that anything but full consideration was given to his case. People v. Crater, 182 Colo. 248, 512 P.2d 623 (1973).

When a different member of the public defender's staff assumes responsibility for a trial a few days prior to its commencement, and he has access to all of the records and investigatory materials which have been compiled after counsel has been appointed for defendant, the defendant is adequately represented even though the defendant contends that his new counsel failed to make proper investigation prior to trial and was unprepared to defend him. Maynes v. People, 178 Colo. 88, 495 P.2d 551 (1972).

When a trial court considers a defendant's contention that he has been denied effective assistance of counsel before denying a motion for new trial, and new counsel is appointed to assist the defendant on appeal, defendant has not been denied effective assistance of counsel on the theory that the trial court failed to provide him with separate counsel at a new trial hearing to present his claim as to the denial of effective assistance of counsel at trial. Maynes v. People, 178 Colo. 88, 495 P.2d 551 (1972).

Where jailer accidentally and not by planned eavesdropping or monitoring overhears defendant's admission of guilt to an attorney, defendant's constitutional right to effective representation of counsel is not denied. People v. Gallegos, 179 Colo. 211, 499 P.2d 315 (1972).

Where record discloses that one day before trial defendant's counsel informed the court that she was prepared for trial, where the tactical decision not to call an expert witness was within the discretion of trial counsel, and where defendant voluntarily testified after advisement. People v. Bradley, 25 P.3d 1271 (Colo. App. 2001).

Where evidence of defendant's guilt was overwhelming, counsel was not ineffective for waiving a preliminary hearing. People v. Phipps, 2 016 COA 190M, 411 P.3d 1157.

Sections 16-8-103.6 , 16-8-106 , and 16-8-107 do not violate a defendant's fundamental right to present a defense or the right to effective assistance of counsel. A defendant can present a defense if he or she complies with the statutes. People v. Bondurant, 2 01 2 COA 50, 296 P.3d 200.

In general, a defendant who knowingly and voluntarily waives his right to counsel and chooses to proceed pro se cannot later claim ineffective assistance of counsel. However, defendant may assert an ineffective assistance of counsel claim if advisory counsel exceeds his role as advisory counsel and exercises a degree of control appropriate for legal representation. Limits imposed upon advisory counsel's unsolicited participation: (1) A pro se defendant must be allowed to control the organization and content of his own defense; and (2) advisory counsel may not, through unrequested participation, destroy the jury's perception that the defendant represents himself. Downey v. People, 25 P.3d 1200 (Colo. 2001).

When appointment of successive attorneys amounts to denial of effective counsel. Before the appointment of the successive attorneys may amount to a denial of the right to effective counsel, it must be shown that the ultimate trial counsel has been deprived of his opportunity to protect adequately the defendant's constitutional rights or prepare for trial. The burden of making such a showing, under Colorado law, rests on the defendant. People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

Sufficient time to prepare for trial. The "effective assistance of counsel" encompasses a guarantee that defense counsel shall have sufficient time to prepare adequately for trial. People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

Defendant who neglects to prepare for trial at appointed time, where sufficient time has been provided therefor, cannot complain if trial is had at time appointed. Altobella v. Priest, 153 Colo. 309, 385 P.2d 585 (1963).

Postconviction testimony of attorney, contacted but not retained on behalf of defendant, as to statements made by defendant, but not in a process of interrogation that lends itself to eliciting incriminating statements, disclosed no violation of defendant's constitutional right to counsel. LaBlanc v. People, 177 Colo. 250, 493 P.2d 1089 (1972).

And right to effective assistance of counsel extends to appellate process. People v. Stroup, 624 P.2d 913 (Colo. App. 1980), rev'd in application of principle, 656 P.2d 680 (Colo. 1982).

Right to counsel not violated where attorney unlicensed for failure to take oath. A criminal defendant's right to counsel is not violated where the accused unwittingly retains a representative for trial who is in all respects qualified to practice law in Colorado, yet remains unlicensed due to his failure to take the mandatory oath for admission. Wilson v. People, 652 P.2d 595 (Colo.), cert. denied, 459 U.S. 1218, 103 S. Ct. 1221, 75 L. Ed. 2d 457 (1983).

Right to reasonably effective assistance of counsel. A defendant is not constitutionally entitled to errorless counsel but rather to reasonably effective assistance of counsel. People v. Velasquez, 641 P.2d 943 (Colo.), appeal dismissed, 459 U.S. 809, 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); People v. Norman, 703 P.2d 1261 (Colo. 1985).

Failure of counsel to interview witnesses, do legal research, and otherwise prepare for trial violated right to effective assistance of counsel. People v. Cole, 775 P.2d 551 (Colo. 1989).

Mere strategic or judgmental errors do not constitute incompetent representation. People v. Wimer, 681 P.2d 967 (Colo. App. 1983).

Admission of testimony of defense-retained handwriting expert called by prosecution constitutes denial of effective assistance of counsel. Perez v. People, 745 P.2d 650 (Colo. 1987).

Judicial scrutiny of counsel's performance must be highly deferential and, where trial court concluded that the outcome of the trial would not have been different had the attorney done everything that the defendant's experts now say he should have done, the claim of ineffectiveness can and should be disposed of on the basis of lack of sufficient prejudice. People v. Fulton, 754 P.2d 398 (Colo. App. 1987); People v. Rivas, 77 P.3d 882 (Colo. App. 2003).

Right to reasonably effective assistance of counsel violated. Prosecution's use in its case-in-chief of defense-retained handwriting expert, absent compelling justification or waiver, violates defendant's right to effective assistance of counsel where prejudice to defendant is found. Hutchinson v. People, 742 P.2d 875 (Colo. 1987); Perez v. People, 745 P.2d 650 (Colo. 1987).

Defense-retained expert able to testify favorably for prosecution not a compelling reason to allow exception to rule against use of defense-retained expert and use in trial violated defendant's right to effective assistance of counsel. Perez v. People, 745 P.2d 650 (Colo. 1987).

Calling expert to testify at a Crim. P. 32(d) hearing to set aside plea does not constitute waiver of defendant's right to object to prosecutor's use of same expert at trial. Perez v. People, 745 P.2d 650 (Colo. 1987).

Defendant's statement to psychiatrist that was provided to the prosecution under Crim. P. 16 loses its confidential nature and cross-examination of the defendant concerning such statements as prior inconsistent statements is proper impeachment, even if the psychiatrist did not testify at the defendant's trial. Use of such statements do not violate the attorney-client privilege or the right to effective assistance of counsel. People v. Lanari, 811 P.2d 399 (Colo. App. 1989), aff'd, 827 P.2d 495 (Colo. 1992).

In addition, it does not violate the attorney-client privilege or the right to effective assistance of counsel when a defendant places his or her mental condition at issue and the prosecution is allowed to use the testimony of a physician or psychologist retained by the defense but whom the defense does not intend to use as a witness at trial. In fact, the prosecution may use pre-offense or post-offense information concerning the defendant's mental condition. Gray v. District Ct., 884 P.2d 286 (Colo. 1994).

The authoritative standard for evaluating an ineffective-assistance claim was formulated by the U.S. supreme court in Strickland v. Washington. This standard consists of two components: whether defense counsel's performance was constitutionally deficient and whether the deficient performance prejudiced the defense. People v. Naranjo, 840 P.2d 319 (Colo. 1992); People v. Sparks, 914 P.2d 544 (Colo. App. 1996); People v. Russell, 36 P.3d 92 (Colo. App. 2001); People v. Rivas, 77 P.3d 882 (Colo. App. 2003); People v. Quintero-Amador, 2015 CO 59, 357 P.3d 844.

A defendant's assertion that had he known that plea counsel had not thoroughly reviewed the evidence and interviewed witnesses he would not have pleaded guilty is entirely speculative and insufficient to meet the burden of alleging facts that would allow the postconviction court to find he was prejudiced by counsel's alleged failure to investigate. People v. Stovall, 2 01 2 COA 7M, 284 P.3d 151.

Representation must be within range of competence. In order to meet the constitutional requirement of effective assistance of counsel, the level of representation furnished to a defendant must be within the range of competence demanded of attorneys in criminal cases. People v. Stroup, 624 P.2d 913 (Colo. App. 1980), rev'd in application of principle, 656 P.2d 913 (Colo. App. 1980); People v. Dillard, 680 P.2d 243 (Colo. App. 1984); People v. Loggins, 709 P.2d 25 (Colo. App. 1985); People v. Rivers, 727 P.2d 394 (Colo. App. 1986).

Defendant was deprived of effective assistance of counsel where: (1) The only significant evidence against him came from codefendants in the case, who had made various inconsistent statements, but no adequate attempt was made to impeach the witnesses; (2) several witnesses who were in possession of relevant facts were not interviewed; and (3) during closing argument defense counsel abandoned theory of defense on which case had been tried and essentially admitted conduct on part of defendant constituting first-degree felony murder. People v. Dillon, 739 P.2d 919 (Colo. App. 1987).

Record conclusive as justification for denial of defendant's motion for a new trial based on ineffective assistance of counsel. People v. Loggins, 709 P.2d 25 (Colo. App. 1985).

Benchmark for judging claim of ineffective assistance of counsel is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. People v. Davis, 849 P.2d 857 (Colo. App. 1992), aff'd, 871 P.2d 769 (Colo. 1994).

And an error by counsel which does not undermine the functioning of the trial such that it cannot be relied upon as having produced a just result does not violate the defendant's right to effective assistance of counsel. Banks v. People, 696 P.2d 293 (Colo. 1985).

And determination of whether defendant has received his constitutional entitlement must be based on a review of all circumstances surrounding the proceedings. People v. Wimer, 681 P.2d 967 (Colo. App. 1983).

Evidentiary hearing is necessary to resolve the defendant's claim of ineffective assistance of counsel where defendant asserted that attorney's failure to pursue collateral attack on prior felony conviction prevented him from testifying on his own behalf and where defendant did not testify at trial and did not make an offer of proof as to what his testimony would have been. Cummings v. People, 785 P.2d 920 (Colo. 1990).

Defendant entitled to a hearing on his claim that counsel was ineffective by erroneously advising him about his eligibility for parole; at the hearing, defendant will have the burden of proving that counsel gave inaccurate advice and that there is a reasonably probability that but for the counsel's error, the defendant would not have entered in his guilty pleas and would have insisted on going to trial on all the original charges. People v. Sudduth, 991 P.2d 315 (Colo. 1999).

Defendant could not be deprived of opportunity to prove counsel's choices lacked sound strategic motive unless the existing record clearly established otherwise or those choices could not have been prejudicial in any event. Ardolino v. People, 69 P.3d 73 (Colo. App. 2003).

Defendant entitled to evidentiary hearing as long as the allegations of his motion, in light of the existing record, were not clearly insufficient to undermine confidence in the outcome of the trial by demonstrating a reasonable probability that but for counsel's challenged conduct, the defendant would not have been convicted. Ardolino v. People, 69 P.3d 73 (Colo. App. 2003).

Trial court proper in dismissing ineffective assistance of counsel claims without hearing since defendant failed to allege that potential appellate issues that were not raised were stronger or had a better chance of prevailing than issues raised by appellate counsel in direct appeal. People v. Trujillo, 169 P.3d 235 (Colo. App. 2007).

Failure to hold hearing on motion, if error, was harmless where defendant's sole contention on appeal was that a hearing was required, but defendant did not contend that representation was ineffective or that he was denied fundamental fairness. People v. Bolton, 859 P.2d 303 (Colo. App. 1993); People v. Bolton, 859 P.2d 311 (Colo. App. 1993).

Strickland ineffective assistance standard requires that the court evaluate the evidence from the perspective of defense counsel as of the time of the representation in question and to indulge a strong presumption that defense counsel's efforts constituted effective assistance. People v. Naranjo, 840 P.2d 319 (Colo. 1992).

Defendant's disagreement with counsel about strategy decisions not sufficient to prove ineffective assistance of counsel. People v. Swainson, 674 P.2d 984 (Colo. App. 1983); People v. Bossert, 722 P.2d 998 (Colo. 1986); People v. Rivers, 727 P.2d 394 (Colo. App. 1986); People v. Bowman, 738 P.2d 387 (Colo. App. 1987); People v. Tackett, 742 P.2d 957 (Colo. App. 1987); People v. Davis, 849 P.2d 857 (Colo. App. 1992), aff'd, 871 P.2d 769 (Colo. 1994).

While defendant is entitled to pretrial investigation sufficient to reveal potential defenses and the facts relevant to guilt or penalty, mere disagreement as to trial strategy will not support a claim of ineffectiveness of counsel. People v. Apodaca, 998 P.2d 25 (Colo. App. 1999).

And while counsel may not prevent a defendant from presenting an alibi during his own testimony without a voluntary, knowing, and intentional waiver of his right to testify, where defendant's alibi is to be established by testimony of witnesses other than defendant, the decision whether to present such defense is a strategic and tactical decision is within the exclusive province of defense counsel. People v. Tackett, 742 P.2d 957 (Colo. App. 1987).

"Decisions of trial strategy" available to defense attorney are limited by fundamental, constitutional choices by defendant, the requirement of honesty and integrity imposed upon court officers, and standards of professional reasonableness. People v. Bergerud, 223 P.3d 686 (Colo. 2010).

Where a defendant and his attorney disagree about whether a lesser nonincluded offense instruction should be submitted to the jury, and both the defendant and his attorney make their respective positions clear to the court, and the prosecution is not entitled to such an instruction or, if entitled to it, did not request it, the court should accede to the defendant's request. The decision whether to request a lesser nonincluded offense instruction implicates a defendant's fundamental rights, and, therefore, belongs to the defendant. People v. Arko, 159 P.3d 713 (Colo. App. 2006).

The decision whether to request a lesser offense instruction is a matter to be decided by counsel after consultation with the defendant. Arko v. People, 183 P.3d 555 (Colo. 2008).

Failure to present mitigating evidence at a capital sentencing hearing is not always defective performance of counsel. People v. Davis, 849 P.2d 857 (Colo. App. 1992), aff'd, 871 P.2d 769 (Colo. 1994).

For pre-Curtis cases, the right to effective assistance of counsel provides the appropriate legal norm for resolving defendant's claim that he was not adequately advised by counsel of his right to testify. People v. Naranjo, 840 P.2d 319 (Colo. 1992).

Inquiry into question of effectiveness of counsel. Where guilty plea subjected defendant to deportation proceedings, inquiry must begin with initial determination that defense counsel in criminal case was aware that his client was an alien, and therefore was reasonably required to research relevant immigration law. People v. Pozo, 746 P.2d 523 (Colo. 1987).

But representation is not inadequate where defendant, though not informed of mandatory deportation, was nevertheless warned of possible deportation before entering guilty plea. People v. Paul, 759 P.2d 740 (Colo. App. 1988).

Proper standard for determining if counsel's performance prejudiced the defense is whether there is reasonable probability that, but for the counsel's errors, the defendant would not have pleaded guilty but would have insisted on going to trial. People v. Garcia, 815 P.2d 937 (Colo. 1991), cert. denied, 502 U.S. 1121, 112 S. Ct. 1242, 117 L. Ed. 2d 475 (1992).

Requiring a defendant to proceed pro se after he or she has alleged that current counsel is ineffective, without further inquiry by the court, violates the defendant's right to counsel and necessitates a new trial. People v. Campbell, 58 P.3d 1148 (Colo. App. 2002).

Burden on defendant to show inadequate representation. A conviction will not be set aside unless the defendant can show there was a denial of fundamental fairness. People v. Dillard, 680 P.2d 243 (Colo. App. 1984); People v. Benney, 757 P.2d 1078 (Colo. App. 1987).

And defendant must overcome presumption that alleged errors can be considered part of trial strategy. People v. Oliner, 745 P.2d 222 (Colo. 1987).

Substandard performance and actual prejudice to defendant must be demonstrated to prove ineffective assistance of counsel. Defendant failed to establish substandard performance and actual prejudice due to state limits on fees payable to appointed counsel. People v. District Court, 761 P.2d 206 (Colo. 1988).

Prejudice must be established to prove ineffective assistance of counsel. People v. Drake, 785 P.2d 1257 (Colo. 1990).

To demonstrate that counsel's assistance was so defective as to require reversal of a conviction, a defendant must show: (1) That his attorney's performance fell below an objective standard of reasonableness, and (2) that the deficient performance resulted in prejudice to the defendant. Reasonableness of the attorney's performance must be judged on the facts of the particular case viewed as of the time of the attorney's conduct. People v. Ball, 813 P.2d 759 (Colo. App. 1990).

Representation by attorney adequate. Although advice defendant received concerning parole was no longer correct, it did reflect the actual practice of the parole board at the time it was given and did not fall beneath the standards prevailing in the community. Eligibility for parole is a collateral consequence of defendant's pleas and there is no requirement that defendant be advised on this subject. People v. Moore, 844 P.2d 1261 (Colo. App. 1992).

Defendant was not deprived of effective assistance of counsel when less experienced public defender was required to go forward with trial while more experienced public defender was unavailable, because defendant failed to show any particular acts or omissions of counsel that fell outside the range of reasonably competent representation, and failed to show that, but for trial counsel's performance, the result of his trial would have been different. People v. Ball, 813 P.2d 759 (Colo. App. 1990).

Application of the Strickland v. Washington two-part test in resolving an ineffective assistance claim obviates any need to engage in harmless error analysis. People v. Naranjo, 840 P.2d 319 (Colo. 1992).

Claim of ineffective assistance of counsel by court-appointed attorney is premature before representation has occurred and, therefore, attorney was not entitled to withdraw from case. Stern v. County Court, 773 P.2d 1074 (Colo. 1989).

Facts sufficient to show ineffective assistance of counsel. People v. Danley, 758 P.2d 686 (Colo. App. 1988).

Court order requiring defendant's counsel to turn over her entire file to counsel for defendant in another case did not deny defendant effective assistance of counsel even though prosecutors were the same in both cases where the trial court issued order designed to remedy the alleged error and render it harmless. Had the prosecution taken steps to separate the two prosecutorial functions there could have been no claim made by defendant that the turnover order resulted in prejudice. Furthermore, even in an instance of deliberate governmental interference with the attorney-client relationship, dismissal of the charge is not mandated absent demonstrable prejudice. People v. Reali, 895 P.2d 161 (Colo. App. 1994).

To prevail on an ineffective assistance of counsel claim predicated on trial counsel's alleged conflict of interest arising from concurrent or successive representation of trial witnesses against a defendant, the defendant must show by a preponderance of the evidence both a conflict of interest and an adverse effect resulting from that conflict. West v. People, 2 015 C O 5, 341 P.3d 5 2 0 (overruling People v. C astro, 657 P.2d 932 (Colo. 1983)); People v. Villanueva, 2016 COA 70, 374 P.3d 535.

To show an adverse effect, a defendant must (1) identify a plausible alternative defense strategy or tactic that trial counsel could have pursued, ( 2 ) show that the alternative strategy or tactic was objectively reasonable under the facts known to counsel at the time of the strategic decision, and (3) establish that the counsel's failure to pursue the strategy or tactic was linked to the actual conflict. The defendant may prove the link to the actual conflict by showing that the alternative strategy or tactic was not undertaken because of those other loyalties or interests. West v. People, 2 015 C O 5, 341 P.3d 520 (overruling People v. C astro, 657 P.2d 932 (Colo. 1983)); People v. Villanueva, 2016 COA 70, 374 P.3d 535.

Effective assistance of counsel may be violated by conflict of interest. The right to effective assistance of counsel may be violated by representation that is intrinsically improper due to a conflict of interest. People v. Castro, 657 P.2d 932 (Colo. 1983), overruled in West v. People, 2015 CO 5, 341 P.3d 520.

Defendant's right to conflict-free counsel violated when defendant's trial attorneys undermined the attorney-client relationship by disclosing privileged communications and concealing the disclosure from defendant. People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009).

Actual conflict of interest existed at trial when defense counsel represented two defendants and could not properly refer to the disparate charges of criminal conduct or comment about this state of evidence to the jury. Armstrong v. People, 701 P.2d 17 (Colo. 1985).

Actual conflict of interest that adversely affected attorney's performance existed where attorney represented two defendants accused of sexually assaulting the same victim. People v. Miera, 183 P.3d 672 (Colo. App. 2008).

Strickland test applies to ineffective assistance of counsel claims involving a conflict of interest between an attorney's duty to a client and the attorney's own self-interest. The test in Cuyler v. Sullivan, 446 U.S. 335 (1980), applies where an attorney's alleged conflict of interest arises from multiple concurrent representation. The Sullivan test cannot be read to encompass conflicts involving an attorney's personal interests. Doing so would undermine the uniformity and simplicity of Strickland. People v. Huggins, 2 019 COA 116, 463 P.3d 2 94.

Combining the roles of advocate and witness can create a conflict of interest between the attorney and the client, because a lawyer cannot act as an advocate on behalf of his client and yet give testimony adverse to the interests of that client in the same proceeding. People v. Finley, 141 P.3d 911 (Colo. App. 2006).

When defendant alleges denial of his or her right to conflict-free counsel, establishes an actual conflict of interest, and establishes that the conflict adversely affected counsel's performance, defendant need not show actual prejudice. People v. Curren, 228 P.3d 253 (Colo. App. 2009).

An actual conflict of interest arises when it places counsel in the position of having to simultaneously defend his or her client and himself or herself, particularly in those instances in which counsel faces potential professional and criminal sanctions. People v. Curren, 228 P.3d 253 (Colo. App. 2009).

Attorney representing both husband and wife not ineffective even where attorney moved for an acquittal for wife and not for husband. People v. Drake, 785 P.2d 1257 (Colo. 1990).

And showing of actual prejudice not required for relief. If an accused demonstrates that his lawyer labored under an actual conflict of interest during the trial, a showing of actual prejudice is not a condition for relief. People v. Castro, 657 P.2d 932 (Colo. 1983), overruled in West v. People, 2015 CO 5, 341 P.3d 520; People v. Miera, 183 P.3d 672 (Colo. App. 2008).

The defense attorney's representation of the district attorney in separate litigation, while simultaneously representing the defendant, creates a conflict of interest which denies him effective assistance of counsel. People v. Castro, 657 P.2d 932 (Colo. 1983), overruled in West v. People, 2015 CO 5, 341 P.3d 520.

Viewing all of the following actions in combination, defense counsel had an actual conflict of interest: The swearing-in of defense counsel to testify about communications he had with defendant pertaining to ongoing representation; the possibility that the prosecution could have obtained material from defense counsel to impeach defendant during the questioning; defense counsel's disclosure of attorney-client privileged information and defense strategy during the questioning; and the specter of an ineffective assistance of counsel claim. People v. Delgadillo, 2 01 2 COA 33, 275 P.3d 772.

Defense counsel's conflict of interest adversely affected the adequacy of defendant's representation, and thus the only remedy is a new trial. Defense counsel and the court failed to disclose the conflict to the defendant, and defense counsel disclosed privileged communications and defense strategies during the in camera proceedings. The in camera proceeding gave the impression that defense counsel lost sight of his responsibilities to defendant and thus his conduct adversely affected the quality of representation. Further, defendant was without the assistance of counsel during the in camera proceedings, which was a critical stage of the proceedings. People v. Delgadillo, 2 01 2 COA 33, 275 P.3d 772.

But potential conflict of interest insufficient. A mere potential conflict of interest, however, is not the equivalent of ineffective assistance of counsel. People v. Castro, 657 P.2d 932 (Colo. 1983), overruled in West v. People, 2015 CO 5, 341 P.3d 520.

No actual conflict of interest was found to exist when defendant's attorney was charged with the traffic offense of failure to obey a traffic signal and failure to produce proof of insurance. People v. Mata, 56 P.3d 1169 (Colo. App. 2002).

Animosity between attorney and client does not constitute an actual conflict of interest, it is a potential conflict. Defendant did not allege anything other than a theoretical conflict and a court cannot presume that the attorney-client relationship deteriorated such that the potential conflict of interest became an actual conflict of interest. People v. Deutsch, 2 0 2 0 COA 114, 471 P.3d 1266.

Defendant may waive right to conflict-free representation. If the court, upon inquiry of the defendant, is satisfied that he voluntarily, knowingly, and intelligently waives all conflicts that are reasonably foreseeable, it may accept the waiver, even though it views the defendant's decision as an improvident one. Rodriguez v. District Court, 719 P.2d 699 (Colo. 1986); People v. Czemerynski, 786 P.2d 1100 (1990).

Defendant who is properly counseled and advised understandingly waived his right to conflict-free representation where second chair defense counsel formerly represented prosecution witness concerning a separate legal matter. Such a waiver is not prohibited by any public policy. People v. Czemerynski, 786 P.2d 1100 (Colo. 1990).

Given that the potential conflict in this case is waivable, an informed and knowing waiver must be recognized. However, if right to conflict-free counsel is not waived, the court may then properly order disqualification. People v. Harlan, 54 P.3d 871 (Colo. 2002).

Balancing test to determine whether defendant may waive conflict-free representation. The trial court must examine: (1) The defendant's preference for particular counsel; (2) the public's interest in maintaining the integrity of the judicial process; and (3) the nature of the particular conflict. People v. Nozolino, 2013 CO 19, 298 P.3d 915.

Defendant voluntarily, knowingly, and intelligently waived his right to conflict-free representation where the court, the attorneys, and the defendant all considered the implications of defendant's attorney's conflicts of interest; during the course of multiple discussions among the court, the prosecution, defense counsel, special counsel, and defendants, the conflicts were fully explained to the defendant; the discussions were particularized, specific, and detailed; each of three conflicts was addressed and the court questioned defendant regarding whether he waived the conflicts; at the last conference, defendant indicated that he understood all of the ramifications of the conflicts and all of his questions regarding the conflicts had been answered; and, based on his central concern of establishing his innocence as quickly as possible, defendant waived the conflicts in order to expedite the trial. People v. Martinez, 869 P.2d 519 (Colo. 1994).

District court's order directing retained attorney representing both husband and wife to represent neither deprived them of the right to counsel of their choice where there was full disclosure by the court and husband and wife signed waivers and affidavits indicating the court's advisement of a potential conflict of interest and evincing their intent to have their retained attorney represent both their interest. Tyson v. District Ct. for the Fourth Jud. Dist., 891 P.2d 984 (Colo. 1995).

By waiving their right to conflict-free representation, defendants waived their right to later assert a claim for effective assistance of counsel as caused by the conflict of interest. Tyson v. District Ct. for the Fourth Jud. Dist., 891 P.2d 984 (Colo. 1995).

Although defendant privately expressed desire to have attorney who was subject to an actual conflict of interest continue to represent him after the conflict was disclosed, a waiver was not made on the record, and there was no proper advisement by the court. The trial court was precluded from finding that defendant made a knowing, free, and voluntary relinquishment of the right to conflict-free counsel. People v. Miera, 183 P.3d 672 (Colo. App. 2008).

Even though defendant failed to object to attorneys' representation in the context of a Curtis advisement, defendant could not have knowingly or intelligently waived the right to conflict-free representation because attorneys concealed from defendant their disclosure of privileged communications to the court and the nature of the representation they provided defendant. People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009).

A defense attorney's erroneous assessment of a probable sentence does not constitute ineffective assistance of counsel. Absent a showing of a deliberate misrepresentation that induced a defendant's guilty plea, counsel's erroneous assessment concerning sentencing does not constitute ineffective assistance of counsel. People v. Zuniga, 80 P.3d 965 (Colo. App. 2003).

Requirement for postconviction claim of conflict of interest. When no objection has been raised during trial concerning the alleged conflict, a constitutional predicate for a postconviction claim of ineffective assistance of counsel requires a showing that the attorney's representation of the defendant conflicted with some other interest that the attorney also had professionally undertaken to serve. People v. Castro, 657 P.2d 932 (Colo. 1983), overruled in West v. People, 2015 CO 5, 341 P.3d 520.

Justifiable excuse or excusable neglect would be established if the public defender's failure to file a motion for post-conviction relief on behalf of defendant was the result of ineffective counsel. People v. Chang, 179 P.3d 240 (Colo. App. 2007).

Effective assistance of counsel right extends to appeal. The constitutional right to reasonably competent assistance of counsel extends to counsel's assistance and advice with regard to the pursuit of appeal rights made available by state procedure. Stroup v. People, 656 P.2d 680 (Colo. 1982); People v. Long, 126 P.3d 284 (Colo. App. 2005).

The Strickland two-part test applies to claims of ineffective assistance of appellate counsel. People v. Long, 126 P.3d 284 (Colo. App. 2005).

Under this test, a defendant must show (1) that counsel's representation fell below an objective standard of reasonableness and (2) that counsel's deficient performance prejudiced the defendant. People v. Long, 126 P.3d 284 (Colo. App. 2005).

The test will vary in its application, however, depending on the type of claim presented. People v. Long, 126 P.3d 284 (Colo. App. 2005).

One type of claim is based on counsel's representation during the course of a perfected appeal that resulted in a judgment on the merits. A typical example would involve allegations that counsel overlooked a meritorious argument. To demonstrate error in this context, the defendant must show that counsel failed to present the case effectively. To demonstrate prejudice, the defendant must show a reasonable probability that, but for counsel's errors, he or she would have prevailed on the appeal. People v. Long, 126 P.3d 284 (Colo. App. 2005).

A different type of claim is based on counsel's failure to perfect an appeal. A lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable. The prejudice resulting from the failure to file a notice of appeal is not in the outcome of the proceeding but in the forfeiture of the proceeding itself. Accordingly, the defendant need not show a likelihood of success on appeal. Thus, for example, a defendant who shows that counsel disregarded specific instructions to appeal will have established both prongs of the Strickland test. People v. Long, 1 2 6 P.3d 2 84 (Colo. App. 2005); People v. Lancaster, 2018 COA 168, 446 P.3d 912.

The sole remedy for a defendant deprived of the right to appeal caused by ineffective assistance of counsel is reinstatement of this right. People v. Long, 126 P.3d 284 (Colo. App. 2005).

Counsel's failure to either file a notice of appeal on defendant's behalf or withdraw pursuant to Crim. P. 44(d) and secure the appointment of a public defender to represent defendant on direct appeal constitutes ineffective assistance of trial counsel under Strickland v. Washington, 466 U.S. 668 (1984). People v. Lancaster, 2 018 COA 168, 446 P.3d 91 2 .

What constitutes effective assistance on appeal. To render reasonably effective assistance, an attorney must at a minimum advise the defendant of possible grounds for appeal that counsel deems meritorious without interjecting extraneous considerations. Stroup v. People, 656 P.2d 680 (Colo. 1982).

There is not a constitutionally mandated standard that appellate counsel must advise the defendant regarding opportunities for statutory postconviction relief or federal habeas corpus, especially absent evidence that counsel had reason to believe such relief would succeed or that defendant indicated an interest in such efforts. People v. Alexander, 129 P.3d 1051 (Colo. App. 2005).

Joint representation does not result in a per se violation of the right to effective counsel. Since neither defendant testified, defense counsel was not faced with the possibility of commenting on the credibility of one to the detriment of the other. People v. Tafoya, 833 P.2d 841 (Colo. App. 1992).

Conviction against unrepresented defendant not usable to establish habitual traffic offender status. Absent a valid waiver of the right to counsel, a conviction obtained against a defendant who is not represented by counsel may not be used to establish habitual traffic offender status for the purpose of imposing punishment for driving after judgment prohibited. People v. Roybal, 618 P.2d 1121 (Colo. 1980); People v. Hampton, 619 P.2d 48 (Colo. 1980).

But prohibition on use of uncounseled convictions not absolute. The United States Constitution does not always prohibit collateral use of uncounseled convictions to increase the penalty for subsequent criminal misconduct, but should be interpreted so that only in the clearest of cases will a statute be construed to permit such use. People v. Roybal, 618 P.2d 1121 (Colo. 1980).

III. RIGHT TO DEMAND NATURE AND CAUSE OF ACCUSATION.

This section is substantially redeclaration and affirmation of ancient rule of common law that no one shall be held to answer to an indictment or information unless the crime with which it is intended to charge him is set forth with precision and fullness, to the end that he may have opportunity to make his defense and avail himself of his conviction or acquittal in a subsequent prosecution for the same cause. Fehringer v. People, 59 Colo. 3, 147 P. 361 (1915).

The right to demand the nature and cause of the accusation is interwoven into the fundamental principles of the common law, embodied in Magna Charta, and guaranteed in both the state and federal constitutions. Fehringer v. People, 59 Colo. 3, 147 P. 361 (1915).

Notice of charges foundation of due process. The right of an accused to notice of the charges which have been made against him constitutes a fundamental constitutional guarantee and lies at the foundation of due process of law. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974).

Purpose of sufficient notice. The notice given must be sufficient to advise the accused of the charges, to give him a fair and adequate opportunity to prepare his defense, and to ensure that he is not taken by surprise because of evidence offered at the time of trial. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974).

Defendant is only required to meet specific accusation made against him. A defendant on trial for a specific offense is not expected or required to meet anything other than the specific accusation made against him, for an accused has the right to know precisely what he has to defend against. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971).

Denial of defendant's motion for a bill of particulars was proper where defendant was on notice from the charging document, the probable cause affidavit, and the preliminary hearing. People v. Quintano, 81 P.3d 1093 (Colo. App. 2003), aff'd, 105 P.3d 585 (Colo. 2005).

Where accused knows general nature of the crime involved, he can make an effective waiver of his constitutional rights. People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972).

Defendant must be made aware of elements of crime with which he is charged before guilty plea may be accepted. People v. Musser, 187 Colo. 198, 529 P.2d 626 (1974).

Evidence held sufficient to show advisement of charge before waiver of rights. An information charging possession of narcotics with intent to sell was sufficient to advise the defendant that he must be prepared to controvert evidence of possession and to defend on that charge. Because possession is an essential element of possession with intent to sell, the defendant can scarcely claim surprise by the introduction of evidence establishing possession. McClain v. People, 178 Colo. 103, 495 P.2d 542 (1972); People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974).

Power to prescribe sufficiency of indictment subject to this section. Without questioning the power of the general assembly, within certain limits, to prescribe the technical sufficiency of an indictment or information, its power in that regard cannot deprive a defendant of his right to demand and have furnished the nature and cause of the accusation against him. Fehringer v. People, 59 Colo. 3, 147 P. 361 (1915).

Thus, provisions as to form of indictment apply except where they fail to give nature and cause of action. Statutory provisions dealing with the sufficiency of allegations in indictments were intended to apply to all informations except where in so doing they fail to give the defendant the nature and cause of the accusation as required by this section of the constitution. Highley v. People, 65 Colo. 497, 177 P. 975 (1918).

Pleading charging offense must set forth sufficient facts to adequately identify transaction and to enable the court to determine whether the facts alleged are sufficient in law to constitute the acts inhibited by the statute. This has not been done when the indictment or information fails to set forth any of the particulars essential to constitute the crime. Fehringer v. People, 59 Colo. 3, 147 P. 361 (1915).

Essential elements of crime must be included in information. An information is sufficient to apprise a defendant of the charge he faces if it sets forth the essential elements to be included in an information charging the crime. Howe v. People, 178 Colo. 248, 496 P.2d 1040 (1972).

There is no requirement, either constitutional or statutory, that every element of theft be alleged in information. People v. Ingersoll, 181 Colo. 1, 506 P.2d 364 (1973).

Complaint must be filed when violation of ordinance may include imprisonment. Where a judgment against a defendant under an ordinance may include imprisonment in the first instance, the failure to file a complaint giving adequate notice of the charge is inexcusable, especially where violations of city ordinances are held to be in the nature of civil cases although of a quasi-criminal or penal nature where imprisonment may be inflicted. City of Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958).

Indefinite legislation denies right. Indefiniteness which leaves to officer, court, or jury the determination of standards in a case-by-case process invalidates legislation as being violative of due process, as contravening the mandate that an accused be advised of the nature and cause of the accusation, and as constituting an unlawful delegation of legislative power to courts or enforcement agencies. Dominguez v. City & County of Denver, 147 Colo. 233, 363 P.2d 661 (1961).

Effect of material variance between allegations and proof. The allegations and the proof must correspond, and if in some matter essential to the charge there is a discrepancy between the averments and the proof, there is a variance. If the variance is material, as where it misleads accused in making his defense or exposes him to the danger of being again put in jeopardy for the same offense, the variance is fatal to a conviction. Skidmore v. People, 154 Colo. 363, 390 P.2d 944 (1964).

Information held sufficient to inform defendant of nature and cause of accusation. An information which charged that defendant aided a prisoner to escape, though no attempt to escape was actually made, by conveying or causing to be delivered to the prisoner instruments to facilitate his escape, held to sufficiently inform defendant of the nature and cause of the accusation. Compton v. People, 84 Colo. 106, 268 P. 577 (1928).

The contention of counsel for the optometrist that the terms, "immoral", "unprofessional", and "dishonorable" are so vague and indefinite as to unconstitutionally deprive the holder of a license of his right to be fully apprised of charges against him, is without merit. Cardamon v. State Bd. of Optometric Exam'rs, 165 Colo. 520, 441 P.2d 25 (1968).

Information held insufficient. The property answering the description contained in the information, a dwelling, was never burned, and yet the defendant stands convicted of burning it. Such conviction cannot stand. The defendant was never notified or informed of the fact that he was accused of burning a building other than the dwelling named in the information, and therefore the "nature" of the offense with which he was never charged was never disclosed to him. Skidmore v. People, 154 Colo. 363, 390 P.2d 944 (1964).

Indictment held insufficient. Where an indictment for second-degree official misconduct set forth the failure to perform a duty, but failed to specify the source of the legal duty alleged to have been breached, the defendant was not given effective notice of the crime charged and therefore was not afforded adequate opportunity to prepare a defense. People v. Beruman, 638 P.2d 789 (Colo. 1982).

Lesser included offense instruction may be given. Where the lesser included offense upon which the prosecution requested an instruction is (1) easily ascertainable from the charging instrument, and (2) not so remote in degree from the offense charged that the prosecution's request appears to be an attempt to salvage a conviction from a case which has proven to be weak, the prosecution may obtain a lesser included offense instruction over the defendant's objection. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974).

Lesser included offense doctrine places some burden upon the defendant to determine specific charges. People v. Cooke, 186 Colo. 44, 525 P.2d 426 (1974).

Where investigating officer was not aware of possible forgery charge against defendant, he cannot be expected to have anticipated the charge, and defendant's rights were not violated by the fact that he was not apprised of the charge before making a statement. Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972).

Accessory to crime may be charged as principal. All participants in a crime, whether accessory or principal, are made alike guilty of the crime and therefore when properly charged with the crime, they are sufficiently advised of the accusation against them, within the requirement of this constitutional provision. Mulligan v. People, 68 Colo. 17, 189 P. 5 (1920).

Defendant held informed of reason for arrest. The advice given the defendant at the outset--that he was held in connection with a shooting that occurred that evening--was adequate information as to the reason for his arrest under Miranda. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

Where court allowed prosecution to amend information one week before trial and then denied defendants' motions for continuance, the defendants were not thereby denied a fair trial where their counsel knew of the amendment two weeks before trial, where the trial was reset so as to grant a week's continuance, where the amendment added nothing substantial to the original charge, and where there was no showing in the record that defendants were prejudiced by the denial. People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972).

Applied in Bizup v. Tinsley, 211 F. Supp. 545 (D. Colo. 1962); Mun. Court v. Brown, 175 Colo. 433, 488 P.2d 61 (1971).

IV. RIGHT OF CONFRONTATION; RIGHT TO COMPEL ATTENDANCE OF WITNESSES.

Law reviews. For article, " C riminal Procedure", which discusses a Tenth C ircuit decision dealing with co-conspirators and voir dire, see 61 Den. L.J. 310 (1984). For article, "Confrontation and Co-conspirators in Colorado", see 14 Colo. Law. 385 (1985). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with confrontation and co-conspirators, 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 confrontation of witnesses, see 15 Colo. Law. 1587 (1986). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with the prosecutor's duty to disclose favorable evidence to defendant, see 65 Den. U. L. Rev. 557 (1988). For article, "The Right to Confront Witnesses After Crawford v. Washington", see 33 Colo. Law. 83 (Sept. 2004). For comment, "Crawford v. Washington: Child Victims of Sex Crimes in Colorado and the United States Supreme Court's Revised Approach to the Confrontation Clause", see 82 Den. U.L. Rev. 427 (2004). For article, "Confronting Nontestimonial Hearsay: Colorado's Split from Sixth Amendment Precedent and What It Means in Practice", see 45 Colo. Law. 21 (May 2016).

A. Right to Confrontation and Cross-Examination.

Right to confront witnesses is a fundamental right. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972).

The right of cross-examination is a valuable constitutional right guaranteed to all defendants. Simms v. People, 174 Colo. 85, 482 P.2d 974 (1971); People v. Fresquez, 186 Colo. 146, 526 P.2d 146 (1974).

Cross-examination is a fundamental right, and not a mere privilege. Puncec v. City & County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970).

The right of confrontation does not apply to a restitution hearing because restitution is part of the sentencing proceeding, not part of the trial. People v. Vasseur, 2 016 COA 107, 409 P.3d 516.

Statutory child hearsay exception created in § 13-25-129 for statements by sexual assault victims violates the confrontation clause of the sixth amendment of the U.S. Constitution where the statements admitted are testimonial in nature and where defendant has not been afforded the opportunity to cross-examine the witness. People v. Moreno, 160 P.3d 242 (Colo. 2007).

Where a child's hearsay statement offered under § 2 5s13- 2 5-129" target="_blank">13-25-129 is nontestimonial, the federal confrontational clause is not implicated. People v. Phillips, 2012 COA 176, 315 P.3d 136.

Even if the statement is testimonial, where the defendant is afforded an opportunity to cross-examine the child at trial, the federal confrontation clause also is not implicated. People v. Phillips, 2 01 2 COA 176, 315 P.3d 136.

To use the forfeiture doctrine to deprive a defendant of the protection of the confrontation clause, the prosecution must show that defendant's wrongful conduct was designed, at least in part, to subvert the criminal justice system by depriving that system of the evidence upon which it depends. The people must prove that the defendant intended to prevent or dissuade the child from testifying against him or her. People v. Moreno, 162 P.3d 242 (Colo. 2007).

Testimonial hearsay statements are admissible only if: (1) The declarant is unavailable to testify and (2) the defendant had a previous opportunity to cross-examine the declarant. The juvenile victim's statement to an investigating officer in a question and answer format is a testimonial statement. Since the defendant did not have an opportunity to cross-examine the juvenile victim, the statement is inadmissible. People ex rel. R.A.S., 111 P.3d 487 (Colo. App. 2004).

A nontestifying witness's out-of-court testimonial statement, regardless of its reliability, may be admitted against an accused only if the witness is unavailable and the accused had an opportunity to cross-examine the witness when the statement was made. People v. Couillard, 131 P.3d 1146 (Colo. App. 2005).

Testimonial hearsay statements of confidential informant are admissible at a pretrial suppression hearing without demonstrating declarant unavailability and prior opportunity to cross-examine declarant. The protections afforded by the confrontation clause apply at a criminal trial but not at the pretrial stage. People v. Felder, 129 P.3d 1072 (Colo. App. 2005).

A criminal defendant does not have a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness. Unlike the decision whether to go to trial, the decision whether to move to suppress evidence is a strategic one for counsel to make in the exercise of professional discretion. Additionally, the reasons for allowing a defendant to decide whether he will testify at trial do not apply in the suppression hearing context. People v. Krueger, 2 01 2 COA 80, 296 P.3d 294.

Out-of-court statement offered against an accused is constitutionally admissible only if the prosecution demonstrates that the declarant is unavailable and that the statement either falls within a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness. People v. Stephenson, 56 P.3d 1112 (Colo. App. 2001).

And wife's statement against penal interest made to police did not fall within a firmly rooted exception to the hearsay rule. People v. Stephenson, 56 P.3d 1112 (Colo. App. 2001).

And wife's statement against penal interest did not bear particularized guarantees of trustworthiness because it was presumptively unreliable as a statement by an accomplice that implicated another accused. People v. Stephenson, 56 P.3d 1112 (Colo. App. 2001).

And improper admission of wife's statement against penal interest was not harmless error as there was a reasonable probability that the defendant was prejudiced by the error. People v. Stephenson, 56 P.3d 1112 (Colo. App. 2001).

The juvenile victim's statement to his father and father's friend made immediately after incident were an excited utterance. The statements were made while the child was upset, did not have any formal character, and were made to persons unassociated with the government. People v. Vigil, 104 P.3d 258 (Colo. App. 2004).

Although unsuccessful, the prosecution made all reasonable efforts to secure the witness for trial, so the witness was unavailable for confrontation clause purposes. People v. Banks, 2 01 2 COA 157, 412 P.3d 417, aff'd in part and rev'd in part on other grounds sub nom. People v. Tate, 2015 CO 42, 352 P.3d 959.

The defendant's confrontation rights were not violated since officer's testimony regarding the unavailable informant was not hearsay. Informant's statements regarding drug deal's arrangements, the suppliers and their street names, and identifying them when they arrived at the scene were introduced to show why the officers went to that particular location to arrest defendant, not for the truthfulness of those statements. People v. Robinson, 226 P.3d 1145 (Colo. App. 2009).

The defendant's confrontation rights were not implicated by the admission of defendant's recorded phone conversation from prison because the statements from the person who received the call were nonhearsay and were not being offered for their truth, but to give context to defendant's statements. People v. Smalley, 2 015 COA 140, 369 P.3d 737.

Two-part test to determine whether questioning by someone other than a law enforcement officer constitutes the functional equivalent of police interrogation. The test directs courts to examine (1) whether and to what extent government officials were involved in producing the statements; and then (2) whether their purpose was to develop testimony for trial. People v. Vigil, 127 P.3d 916 (Colo. 2006); People v. Sharp, 155 P.3d 577 (Colo. App. 2006).

This determination is fact specific and must be made on a case-by-case basis. People v. Vigil, 127 P.3d 916 (Colo. 2006); People v. Sharp, 155 P.3d 577 (Colo. App. 2006).

Statements made during the functional equivalent of police interrogation are testimonial. People v. Sharp, 155 P.3d 577 (Colo. App. 2006).

In order to determine if a doctor's questions, as part of a sexual assault examination, constitute the functional equivalent of police interrogation, a court must consider to what extent government officials were involved in producing the statement and whether the purpose was to develop testimony for trial. In this case, the doctor's questions were intended to help the doctor's diagnosis and treat the patient and were not directed by a government official, and a government official was not present during the questioning. Therefore, the questioning did not constitute the equivalent of a police interrogation. People v. Vigil, 127 P.3d 916 (Colo. 2006).

The test in determining whether a child's out-of-court statement is testimonial depends on whether an objective person in the child's position would believe his or her statements would lead to punishment of the defendant. People v. Sharp, 143 P.3d 1047 (Colo. App. 2005).

Factors to be considered in determining whether a child declarant would reasonably believe his or her statements could be used by the prosecution at trial include: (1) The declarant's age; (2) the declarant's awareness of government involvement; and (3) the declarant's awareness that the defendant faces the possibility of criminal punishment. People v. Sharp, 143 P.3d 1047 (Colo. App. 2005).

Applying the "objective witness" test, the child victim's statements to the doctor were not testimonial. The objective witness test asks whether a reasonable person making the statements would believe their statements would be used at trial. In this case, a reasonable child victim would expect that his or her statements would be used to provide a diagnosis for the child and to make the child feel better, not for prosecution at a trial. People v. Vigil, 127 P.3d 916 (Colo. 2006).

Applying the "objective witness" test, the child victim's statements to his father and father's friend were not testimonial. The statements were not made under circumstances that a reasonable seven-year-old boy would believe his statements would be used at trial. People v. Vigil, 127 P.3d 916 (Colo. 2006).

The functional equivalent of police interrogation test is separate and in addition to the objective witness test. If a child victim makes a statement to a government agent as part of a police interrogation, his or her statement is testimonial irrespective of the child's expectations regarding whether the statement will be available for use at a later trial. People v. Sharp, 155 P.3d 577 (Colo. App. 2006).

Child victim's videotaped statements to private forensic interviewer were the functional equivalent of police interrogation and were testimonial. The police detective arranged and, to a certain extent, directed the interview even though the detective was not physically present in the room. Moreover, the purpose of the interview was to elicit statements that would be used at a later criminal trial to convict the perpetrator. People v. Sharp, 155 P.3d 577 (Colo. App. 2006).

Defendant's constitutional rights were violated by the introduction of child victim's videotaped statements at trial. The prosecutor admitted child victim's videotaped statements in lieu of her testimony because the child was unavailable. Defendant did not have an opportunity, however, to cross-examine the child either during the videotaped interview or during trial. People v. Sharp, 155 P.3d 577 (Colo. App. 2006).

Plea allocutions are testimonial and, thus, inadmissible unless the defendant has had an opportunity to cross-examine the declarant. People v. Couillard, 131 P.3d 1146 (Colo. App. 2005).

For out-of-court statements that are not testimonial, the prosecution must make a two-part showing to demonstrate compliance with the state constitution. First, the prosecution must either produce the declarant or show that he or she is unavailable for trial. Second, if the declarant is unavailable, the government may use the out-of-court statements only if they bear sufficient indicia of reliability. People v. Couillard, 131 P.3d 1146 (Colo. App. 2005).

Criminal laboratory reports are testimonial statements subject to the U.S. supreme court's decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007).

An autopsy report prepared by a doctor who was not present at trial should be considered testimonial under Crawford. Because it was reasonable for the doctor to assume the statements in the autopsy report would be used in a criminal prosecution, the statements were testimonial under Crawford. People v. Merritt, 2 014 COA 1 2 4, 411 P.3d 102.

The laboratory report was introduced at trial to establish the elements of the offense with which defendant was charged, and, under such circumstances, the report is testimonial in nature. Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007).

Testimony of the laboratory supervisor rather than the specific individual who performed a forensic test does not violate a defendant's right to confrontation where supervisor's review of the test was necessary for the results to be finalized. Once lab report certified by supervisor was introduced through supervisor's testimony, she became a witness that defendant had the right to confront. Because defendant cross-examined supervisor at trial, defendant's confrontation rights were satisfied. People v. Medrano-Bustamante, 2 013 COA 139, 41 2 P.3d 581, aff'd in part and rev'd in part on other grounds sub nom. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.

Booking reports and mittimus not "testimonial" and thus did not trigger defendant's confrontation rights. Trial court did not err in admitting them as public records. People v. Warrick, 284 P.3d 139 (Colo. App. 2011).

Essence of right to confront one's accusers is to meet adverse witnesses face-to-face and to have opportunity to cross-examine them. People v. Bastardo, 191 Colo. 521, 554 P.2d 297 (1976).

The right to confront witnesses under this section translates into the right of cross-examination. D.W. v. District Court, 193 Colo. 194, 564 P.2d 949 (1976); People v. Thurman, 787 P.2d 646 (Colo. 1990).

The admission of hearsay evidence does not violate the sixth amendment when the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. Generally, hearsay meets the requirements of the confrontation clause only when the statement bears either adequate indicia of reliability or has particularized guarantees of trustworthiness. People v. Gilmore, 97 P.3d 1 2 3 (Colo. App. 2 003); People v. Ortega, 2016 COA 148, 405 P.3d 346.

Where cross-examining the custodian of phone records or the declarant for sentencing and prison records would be of limited utility, a showing of unavailability was not required to admit the records into evidence in the absence of the declarant. People v. Ortega, 2 016 COA 148, 405 P.3d 346.

Purpose of right of confrontation and cross-examination is to prevent conviction by ex parte affidavits, to sift the conscience of the witness, and to test his recollection to see if his story is worthy of belief. People v. Scheidt, 182 Colo. 374, 513 P.2d 446 (1973); People v. Bastardo, 191 Colo. 521, 554 P.2d 297 (1976).

And waiver of such right is not to be lightly found. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972).

This decision is properly responsibility of defense counsel, and therefore, the decision of defense counsel to allow the prosecution to use depositions of witnesses in court is an effective waiver. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972).

Waiver not required prior to guilty plea. The language of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), does not expressly require that the right against compulsory self-incrimination and the right to confront one's accusers at trial must be specifically waived by a defendant before a trial court may accept his guilty plea. People v. Marsh, 183 Colo. 258, 516 P.2d 431 (1973).

Right to confront witnesses is inapplicable in administrative hearing to determine whether a driver's license should be revoked for accumulated traffic violations. Campbell v. State, 176 Colo. 202, 491 P.2d 1385 (1971).

Dying declarations are not subject to the confrontation clause, and, therefore, not subject to Crawford v. Washington. It is generally accepted that the confrontation clause should be read to include only those exceptions that existed at the time of its adoption. The most notable exception at that time was the admissibility of dying declarations. A dying declaration, defined in § 2 5s13- 2 5-119" target="_blank">13-25-119, is admissible as an exception to the hearsay rule because it poses a guarantee of trustworthiness based on the assumption that the belief of impending death excludes the possibility of fabrication by the declarant. Also, precluding the admission of dying declarations would, in many cases, result in a manifest failure of justice. People v. Cockrell, 2017 COA 125, __ P.3d __.

Pretrial confrontation prior to appointment of defense counsel is unconstitutional. A pretrial confrontation of defendant by a witness to the crime, prior to appointment of defense counsel, is unconstitutional. Gallegos v. People, 176 Colo. 191, 489 P.2d 1301 (1971).

Confrontation clause violations are trial errors, and trial errors are reviewed under the plain error doctrine if the defendant does not raise the confrontation clause objection at trial. Since the jury had ample evidence to find the defendant guilty, the admission of the videotaped police interview did not constitute plain error. People v. Vigil, 127 P.3d 916 (Colo. 2006).

Even where there has been illegal confrontation, witness may make in-court identification if there is an independent source upon which to base such an identification apart from the illegal confrontation. Glass v. People, 177 Colo. 267, 493 P.2d 1347 (1972).

The defendant's confrontation right is not violated when the court admits out-of-court statements of declarants who testify at trial and are available for cross-examination about the out-of-court statements. People v. Rincon, 140 P.3d 976 (Colo. App. 2005).

A defendant's right to confrontation is satisfied when the hearsay declarant is produced for cross-examination. People v. Oliver, 745 P.2d 222 (Colo. 1987); People v. Dunlap, 124 P.3d 780 (Colo. App. 2004).

Cross-examination provides meaningful confrontation. Knowledge of techniques of scientific and technologic analyses is sufficiently available and the variables in techniques few enough that the accused has the opportunity for a meaningful confrontation of the government's case at trial through the ordinary process of cross-examination of the government's expert witnesses and the presentation of the evidence of his own experts. Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970).

Cross-examination should not be unduly restricted, but, rather, should be liberally extended to permit thorough inquiry into the motives of a witness testifying for the prosecution. People v. Key, 185 Colo. 72, 522 P.2d 719 (1974).

Trial judge may determine scope and limits of cross-examination. Puncec v. City & County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970); Simms v. People, 174 Colo. 85, 482 P.2d 974 (1971); People v. Fresquez, 186 Colo. 146, 526 P.2d 146 (1974).

And except for abuse of discretion, his rulings will not be disturbed on review. Simms v. People, 174 Colo. 85, 482 P.2d 974 (1971); People v. Fresquez, 186 Colo. 146, 526 P.2d 146 (1974); People v. Knight, 167 P.3d 147 (Colo. App. 2006).

Right by cross-examination to require witness to give his residence address is in aid of a defendant's right of confrontation, but this right, however, is not without exceptions. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972).

Defendant's constitutional right to confront an adverse witness violated when court ruled defendant could not cross-examine witness regarding a pending misdemeanor case that might have influenced witness's testimony. Kinney v. People, 187 P.3d 548 (Colo. 2008).

Defendant need only show that the witness's testimony might be influenced by a promise for, or hope or expectation of, immunity or leniency with respect to the pending charges against the witness in exchange for favorable testimony. Kinney v. People, 187 P.3d 548 (Colo. 2008).

There is a duty to protect witness from questions which go beyond bounds of proper cross-examination merely to harass, annoy or humiliate him. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972).

Witness's loss of memory. Where a witness takes the stand and is available for cross-examination, the witness's actual or feigned memory loss, even if memory loss is total regarding prior inconsistent statements, does not violate a defendant's confrontation right. People v. Pepper, 193 Colo. 505, 568 P.2d 446 (1977).

The fact that at the time of trial witness no longer recalled the statements or events does not alter the conclusion that there was no violation of defendant's confrontation rights. Defense counsel had the opportunity to cross-examine the witness about her statements and the witness was available for further testimony. People v. Candelaria, 107 P.3d 1080 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 148 P.3d 178 (Colo. 2006).

District attorney is not obliged to call all witnesses endorsed upon information. Harris v. People, 174 Colo. 483, 484 P.2d 1223 (1971).

Application of § 16-10-201 in allowing prosecution to impeach its own witness with prior inconsistent statements was not a violation of right to confront accuser, to assistance of counsel, to appear when depositions against one were taken, or to due process of law. People v. Bastardo, 191 Colo. 521, 554 P.2d 297 (1976).

Failure to call complaining witness at trial did not prevent confrontation. Where the defendant argued that he was not given an opportunity to confront the complaining witness who by her complaint initiated one count of assault with a deadly weapon, it was held that the defendant had failed to distinguish the difference between the charge of the offense and the proof of the offense. The information, which was based to a large extent upon what the officers had learned from the woman, was the vehicle by which the people advised the defendant of the crime he was alleged to have committed. It was not used, and necessarily could not be used, as evidence to prove the charge. Proof of the elements of the offense charged may be established not only by the testimony of the victim, but also they may be proved by any other competent evidence. The defendant could not complain, since he was afforded an opportunity to cross-examine every witness used to prove the several elements of the offense with which he was charged. Harris v. People, 174 Colo. 483, 484 P.2d 1223 (1971).

Failure to advise pro se claimant of right of cross-examination was improper. Where the referee of the industrial commission used hospital records in rendering a decision against a claimant, his failure to advise claimant, who was appearing pro se, of her right of cross-examination was improper, as was his failure to offer her an opportunity to inspect the records before using them against her. Puncec v. City & County of Denver, 28 Colo. App. 542, 475 P.2d 359 (1970).

In joint prosecution of two roommates for possession of hashish, the attorney for the first defendant, who did not testify, should have been allowed to cross-examine a witness who was called by the second defendant and who testified that the second defendant had seldom been at the apartment for two weeks before the search but that the two defendants shared the closet where the hashish was discovered. Eder v. People, 179 Colo. 122, 498 P.2d 945 (1972).

There was no deprivation of constitutional rights in allowing witnesses to be impeached by their previous statements where neither witness invoked the fifth amendment and there was opportunity to cross-examine them as to both their previous and present statements. Gaitan v. People, 167 Colo. 395, 447 P.2d 1001 (1968).

Right of confrontation denied. This section precludes the admission of the transcript of a preliminary hearing at a subsequent trial when the witness whose testimony is sought has become unavailable. People v. Smith, 198 Colo. 120, 597 P.2d 204 (1979); People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980); People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff'd on other grounds, 92 P.3d 970 (Colo. 2004).

Right to confront witness was denied when witness was allowed to testify over the phone and the unavailability of said witness had not been established. Gonsoir v. People, 793 P.2d 1165 (Colo. 1990).

Defendant's right to confront witness was denied by allowing physician who had treated victim to testify by telephone since physician was actually available to testify, although to do so would have been extremely inconvenient. Topping v. People, 793 P.2d 1168 (Colo. 1990).

Denial by the trial court for defense counsel to cross-examine prosecution witnesses with respect to use immunity granted to the witnesses violated confrontation clause of the United States Constitution, and was not harmless error. Merritt v. People, 842 P.2d 162 (Colo. 1992).

If victim's statements are deemed testimonial and the defendant did not have an opportunity to cross-examine the victim, the admission of the statements is a violation of defendant's confrontation rights under Crawford v. Washington. People v. Couillard, 131 P.3d 1146 (Colo. App. 2005).

Factors to be considered in determining whether a confrontation violation constitutes harmless error include: (1) The importance of the evidence to the prosecution's case; (2) whether the evidence was cumulative; (3) the presence or absence of corroborating or contradicting testimony on the material points of the improperly admitted evidence; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution's case. People v. Harris, 43 P.3d 221 (Colo. 2002); People v. Fry, 92 P.3d 970 (Colo. 2004); People v. Couillard, 131 P.3d 1146 (Colo. App. 2005).

Although a defendant must have been provided with a prior adequate opportunity to cross-examine an unavailable witness before the state can admit that witness's previous testimony into evidence, the preliminary hearing does not provide an adequate opportunity to cross-examine sufficient to satisfy the confrontation clause requirements. People v. Fry, 92 P.3d 970 (Colo. 2004).

Test for a hearsay statement that would not deprive a defendant of his constitutional right to be confronted with the witnesses against him is whether the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility. To meet that high burden of truthfulness, the statement must either fall within a firmly rooted hearsay exception or bear particularized guarantees of trustworthiness. People v. Farrell, 34 P.3d 401 (Colo. 2001).

Statement against interest by a co-defendant made during custodial interrogation does not fall within a firmly rooted hearsay exception, but statement made by co-defendant in case at hand, after examining totality of circumstances, was genuinely self-inculpatory, not induced by threats, coercion, or promises, and not intended to shift blame to defendant; thus, admission of statement bore particularized guarantees of trustworthiness and did not deprive defendant of his constitutional right to be confronted with the witness against him. People v. Farrell, 34 P.3d 401 (Colo. 2001).

Right of confrontation not denied. Where prosecution used depositions of two witnesses at trial and where defendant was present with counsel and was granted full rights of cross-examination at the time of the taking of the depositions before a judge, he was not deprived of his right to confront witnesses at trial where the depositions were used without a finding of unavailability of the deponents, where it was a matter of his counsel's trial strategy. Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972).

Where defendant was prohibited from revealing to jury through cross-examination that a witness was in custody in another state on unrelated charges where such testimony would have been cumulative and of little or no probative value and where defendant was otherwise provided with ample opportunity to impeach the witness's credibility by showing ulterior motive. People v. Griffin, 867 P.2d 27 (Colo. App. 1993).

Where the declarant was unavailable as a witness due to her age, the requirement of spontaneity underlying the res gestae exception provided an adequate proxy for the truth-exacting sanction of an oath, and the admission of the hearsay assertion of the declarant under the res gestae exception did not violate the confrontation rights of the defendant. Lancaster v. People, 200 Colo. 448, 615 P.2d 720 (1980).

Where the witness testified under oath and was thoroughly cross-examined by defendant's attorney, the jury had the opportunity to observe the witness's demeanor, and the written hearsay statement did not contain any information which was not the subject of his examination and cross-examination. People v. Sharrock, 709 P.2d 973 (Colo. App. 1985).

Court properly denied defendant's request to cross-examine witness concerning illicit use of drugs five months prior the offense on grounds it was too remote to be probative of witness's credibility. People v. Fultz, 761 P.2d 242 (Colo. App. 1988).

The right to confront witness was not denied when the physician who treated victim testified over the telephone but was fully cross-examined by the defense in jury's presence. The inherent reliability of physician's testimony arising from lack of personal interest in outcome of case and uncontested nature of testimony compensated for any minor reduction in defendant's ability to confront witness face to face. People v. Topping, 764 P.2d 369 (Colo. App. 1988).

The right of confrontation does not come into play when a potential witness neither testifies nor provides evidence at trial. A defendant has no absolute right to confront the victim when the victim does not appear as a witness and no evidence supplied by the victim is presented at trial. People v. Walters, 821 P.2d 887 (Colo. App. 1991).

Where defendant's counsel made a deliberate, tactical choice to introduce bystander's hearsay statement into case, defendant invited any error that may have resulted from its introduction. Therefore, hearsay admission did not violate defendant's right to confront the witnesses against him. People v. Gibson, 203 P.3d 571 (Colo. App. 2008).

An excited utterance made to a police officer was nontestimonial, thus Crawford v. Washington does not apply, there is no violation of the sixth amendment, and the defendant has no constitutional right to confront. If a victim makes an excited utterance to a police officer, in a noncustodial setting and without indicia of formality, the statement is a nontestimonial interrogation under Crawford. People v. King, 121 P.3d 234 (Colo. App. 2005).

Prosecutor as witness for defense. Every prosecutor may potentially be a witness for the defense insofar as he has interviewed other witnesses and investigated the facts of the case. This alone cannot be a sufficient basis to prevent the execution of his office as prosecutor because it would allow prosecution only by unprepared counsel. On the other hand, the defendant has a right to call witnesses on his own behalf and to prevent the prosecutor from adding to the weight or credibility of the evidence by acting as both witness and officer of the court. People v. District Court, 192 Colo. 480, 560 P.2d 463 (1977).

Where, in the course of investigations into activities of defendant, the grand jury prosecutor asked certain questions of defendant, the responses to these questions formed the basis for a subsequent indictment of defendant for perjury, and the grand jury prosecutor continued his role as prosecutor for the case at trial, granting defendant's motion to dismiss the prosecutor on the grounds that the defendant intended to call the prosecutor as a witness to the alleged crime was error since the testimony of the prosecutor did not play a significant role in the posture of the case and was not of sufficient consequence to prevent a fair trial. People v. District Court, 192 Colo. 480, 560 P.2d 463 (1977).

When defense witness has not been subpoenaed by defendant and due to witness's absence, a motion for continuance is made but denied, there is no violation of this provision. Edwards v. People, 176 Colo. 478, 491 P.2d 566 (1971).

Expenses of obtaining testimony of witnesses for indigent defendant must be paid by state. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).

Advancement of costs by state. Since the state will ultimately pay the costs of securing out-of-state witnesses for the defendant, there is no legal justification for holding that it is not liable for advancement of such costs as mileage and witness fees. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).

The United States and Colorado Constitutions guarantee an accused the right to be confronted with the witnesses against him. This right is a fundamental element in the panoply of constitutional protections afforded a person accused of crime. People v. Thurman, 787 P.2d 646 (Colo. 1990).

The permissible purposes of the right of cross-examination include, among others, that the witness may be sought and offered of his reputation for veracity in his own neighborhood; that the jury may interpret his testimony in the light reflected upon it by knowledge of his environment; and that facts may be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased. People v. Thurman, 787 P.2d 646 (Colo. 1990); Luu v. People, 841 P.2d 271 (Colo. 1992).

Right of confrontation not absolute and withholding of victim's address not material enough to prejudice defendant's defense. Court did not err in extending personal safety exception to the victim and applying it to the defendant's right of cross-examination since victim did not give her present address because of concerns for her safety arising out of an unrelated, pending homicide case in which she was a witness and which was then in another courtroom. People v. Joyce, 878 P.2d 48 (Colo. App. 1994).

Nondisclosure of witnesses' addresses proper in postconviction proceeding for defendant convicted of murdering witness. Significant threat to witness safety was not overcome by evidence of any materiality of witnesses' addresses to postconviction proceedings. People v. Ray, 252 P.3d 1042 (Colo. 2011).

Constitutional right to confrontation is not absolute. Topping v. People, 793 P.2d 1168 (Colo. 1990).

An accused's right to confront and to cross-examine witnesses is not absolute and may be limited by the court to accommodate other legitimate interests in the criminal trial process after carefully scrutinizing such competing interests. People v. Cole, 654 P.2d 830 (Colo. 1982); People v. Benney, 757 P.2d 1078 (Colo. App. 1987); People v. Thurman, 787 P.2d 646 (Colo. 1990); People v. Ray, 109 P.3d 996 (Colo. App. 2004).

The court may limit an attack on the credibility of a witness to avoid wasting time and to protect the witness from harassment or undue embarrassment without violating the confrontation clause. The line of questioning defendant wanted to pursue would have injected collateral issues into the case and unduly prolonged the proceedings, so it was proper for the court to disallow the questioning. People v. Rincon, 140 P.3d 976 (Colo. App. 2005).

Defendant's misconduct resulting in wrongful prevention of future testimony from a witness or potential witness may result in a forfeiture of constitutional right of confrontation. A defendant is not to benefit from his or her wrongful prevention of future testimony. In the present case, defendant sought to overrule the allowance of victim's testimony under the excited utterance exception to the hearsay rule based on a violation of the defendant's right of confrontation. However, since victim was unavailable to testify because her death was the result of defendant's actions, defendant thus forfeited his right to claim a confrontation violation in connection with the admission of victim's statements into evidence. People v. Moore, 117 P.3d 1 (Colo. App. 2004).

Defendant forfeits right to confront witness in all proceedings in which witness's statements are otherwise admissible if (1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to deprive the criminal justice system of evidence. Vasquez v. People, 173 P.3d 1099 (Colo. 2007); Pena v. People, 173 P.3d 1107 (Colo. 2007).

In order to establish forfeiture, these elements must be proved by a preponderance of the evidence in an evidentiary hearing outside the presence of the jury. Vasquez v. People, 173 P.3d 1099 (Colo. 2007); Pena v. People, 173 P.3d 1107 (Colo. 2007).

Because defense opened the door during cross examination to any confrontation clause violation, it waived any potential error. People v. Merritt, 2 014 COA 1 2 4, 411 P.3d 102.

Once the court determines that forfeiture by wrongdoing has been established, the court must examine the admissibility of victim's hearsay statements according to rules of evidence. Vasquez v. People, 173 P.3d 1099 (Colo. 2007); Pena v. People, 173 P.3d 1107 (Colo. 2007).

Section 16-3-309 (5) is constitutional on its face. Section 16-3-309 (5), which requires a defendant to affirmatively request a laboratory technician's presence at trial, is an acceptable precondition to a defendant's exercise of his right to confrontation and is therefore not unconstitutional. A defendant's right to confrontation is not denied as he can preserve that right, pursuant to § 16-3-309, with minimal effort. People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003).

Admission of a lab report through a lab supervisor did not violate the confrontation clause or § 16-3-309 (5). The appearance of a lab supervisor who supervised, reviewed, and certified test results completed by another technician was sufficient to satisfy the confrontation clause of the U.S. constitution and § 16-3-309 (5). Marshall v. People, 2013 CO 51, 309 P.3d 943, cert. denied, 572 U.S. 1136, 134 S. Ct. 2661, 189 L. Ed. 2d 212 (2014).

Defendant's attorney's failure to comply with § 16-3-309 (5) waived defendant's right to confront technician who prepared forensic report that was introduced without technician's testimony. Defendant's attorney's ignorance of the statute's requirements does not affect the waiver of the right to confrontation. Defendant received sufficient notice of the existence of the report and its possible introduction at trial. Cropper v. People, 251 P.3d 434 (Colo. 2011).

The right of confrontation includes the right to elicit a witness's address by cross-examination. People v. Thurman, 787 P.2d 646 (Colo. 1990).

The address, however, may be kept confidential if prosecution shows that witness legitimately fears reprisal from defendant or defendant's associates. People v. Victorian, 165 P.3d 890 (Colo. App. 2007).

Right to cross-examine witness tempered by trial court's authority. The constitutional right to confront and cross-examine witnesses is tempered by the trial court's authority to prohibit cross-examination on matters wholly irrelevant and immaterial to issues at trial. People v. Loscutoff, 661 P.2d 274 (Colo. 1983); People v. Rubanowitz, 688 P.2d 231 (Colo. 1984); People v. Collins, 730 P.2d 293 (Colo. 1986); People v. Bell, 809 P.2d 1026 (Colo. App. 1990); People v. Kerber, 64 P.3d 930 (Colo. App. 2002).

The trial court has the ability to limit recross-examination when no new matters have been raised on redirect or additional testimony would be only marginally relevant. People v. Kerber, 64 P.3d 930 (Colo. App. 2002); People v. Baker, 178 P.3d 1225 (Colo. App. 2007).

Court's denial of defendant's recross-examination did violate the confrontation clause and was not plain error. But the error was not so prejudicial as to cast doubt on the reliability of the conviction. During cross-examination the defendant covered similar areas that the recross would have covered. People v. Ewing, 2 017 COA 10, 413 P.3d 188.

Right to cross-examine drug enforcement agency agents concerning incentive programs for obtaining drug convictions in order to establish bias improperly denied by the trial court. The testimony would have revealed agents' strong interest in the outcome of the case and motive for giving testimony favorable to the prosecution. However, error was harmless because the facts in question were fully established by other evidence. Vega v. People, 893 P.2d 107 (Colo. 1995).

Right to confront adverse witnesses does not supersede a victim's statutory psychologist-patient privilege under § 13-90-107. Once the psychologist-patient privilege attaches, the only basis for authorizing a disclosure of the confidential information is an express or an implied waiver. People v. District Court, 719 P.2d 722 (Colo. 1986).

The victim advocate privilege in § 13-90-107 (1)(k)(I) extends to records of service or assistance provided by the victim's advocate, and the withholding of such records does not violate the rights to confrontation and compulsory process. People v. Turner, 109 P.3d 639 (Colo. 2005).

A court must allow broad cross-examination of a prosecution witness as to bias, prejudice, and motivation for testifying. People v. Bowman, 669 P.2d 1369 (Colo. 1983); People v. Schwartz, 678 P.2d 1000 (Colo. 1984); People v. Benney, 757 P.2d 1078 (Colo. App. 1987).

However, a trial court must disallow cross-examination upon matters wholly irrelevant and immaterial to the issues at trial, and the court has broad discretion to preclude repetitive and harassing interrogation. People v. Bowman, 669 P.2d 1369 (Colo. 1983); People v. Schwartz, 678 P.2d 1000 (Colo. 1984).

The ability to cross-examine a prosecution witness about use immunity allows a defendant to elicit testimony that would show bias, and results in the elimination of reasonable but false inferences raised by the testimony of a witness granted immunity. Denial by the trial court for defense counsel to cross-examine prosecution witnesses with respect to use immunity granted to the witnesses violated confrontation clause of the United States Constitution, and was not harmless error. Merritt v. People, 842 P.2d 162 (Colo. 1992).

While a trial court does have discretion to limit cross-examination, it is constitutional error to limit excessively a defendant's cross-examination of a witness regarding the credibility of the witness especially cross-examination concerning the witness bias, prejudice, or motive for testifying. Merritt v. People, 842 P.2d 162 (Colo. 1992); People v. Russom, 107 P.3d 986 (Colo. App. 2004).

Trial court did not excessively limit cross-examination of prosecution witnesses regarding their gang affiliation, and thus, there was no constitutional error. Contrary to defendant's assertions, the trial court admitted substantial testimony regarding the prosecution witnesses' gang affiliations. To the extent that the court limited defendant's ability to inquire into other topics noted in his various offers of proof, defendant's proffers as to those subjects were speculative and conclusory at best, and the court did not abuse its discretion in precluding such inquiries. People v. Gonzales-Quevedo, 203 P.3d 609 (Colo. App. 2008).

The court may constitutionally prohibit cross-examination of a witness concerning the underlying facts of pending cases against that witness because factual details of a witness's pending cases are not relevant to the witness's biases, prejudices, or motives for testifying against defendant. People v. Russom, 107 P.3d 986 (Colo. App. 2004).

In determining whether a defendant's right to confrontation is violated, a reviewing court shall determine whether the trial court limited excessively the defendant's cross examination of a witness with respect to the witness's bias, prejudice, or motive for testifying. Merritt v. People, 842 P.2d 162 (Colo. 1992).

On review of conviction where a defendant asserts that the violation of the defendant's constitutional right to confrontation did not result in harmless error, the prosecution has the burden of showing that the trial court's limit on cross examination did not contribute to the defendant's conviction. Merritt v. People, 842 P.2d 162 (Colo. 1992).

A defendant is presumptively entitled to cross-examine a prosecution witness as to the witness's address and place of employment. Absent sufficient justification for withholding this information, a defendant's right to it is unqualified, and the defendant is under no obligation to provide reasons for seeking it. The prosecution's showing must consist of more than the mere expression of apprehension by a witness who is reluctant to divulge her identity, address or place of employment. At a minimum, the danger claimed by the witness must in some way relate to the particular defendant. There must be a nexus such that the witness legitimately fears reprisal from the defendant or his associates. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972); People v. Thurman, 787 P.2d 646 (Colo. 1990).

Statements acknowledging the existence of a committed romantic relationship are not evidence of sexual conduct or sexual orientation for purposes of the rape shield statute. As such, if evidence of such a committed romantic relationship is otherwise relevant to the case, it is admissible and not barred by the rape shield statute. People v. Golden, 140 P.3d 1 (Colo. App. 2005).

Trial court erred in concluding that initial questions as to whether victim was in a committed relationship at the time of the alleged sexual assault inquired into sexual conduct and in foreclosing cross-examination through use of prior inconsistent statements in that regard. People v. Golden, 140 P.3d 1 (Colo. App. 2005).

Court properly excluded cross-examination of victim by precluding questioning on victim's reasons for seeking postpartum depression treatment since the issue was irrelevant and tangential to the victim's credibility. People v. Brown, 218 P.3d 733 (Colo. App. 2009), aff'd, 239 P.3d 764 (Colo. 2010).

Trial court erred in precluding defendant from inquiring into, and if necessary, presenting evidence of, a romantic relationship between alleged victim and a friend. Evidence of alleged victim's romantic and sexual relationship with friend was relevant to a material issue in the case, namely, victim's motive to lie. Trial court's exclusion of the motive evidence infringed upon defendant's constitutional right to confront witnesses. People v. Owens, 183 P.3d 568 (Colo. App. 2007).

Right of confrontation requires defendant to have opportunity to conduct an effective cross-examination of adversary witnesses but this opportunity does not mean unlimited cross-examination. People v. Griffin, 867 P.2d 27 (Colo. App. 1993).

The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court, which is under a duty to protect a witness from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. People v. Thurman, 787 P.2d 646 (Colo. 1990).

Where the right to confrontation is limited by a self-imposed tactical constraint, and not by any trial court ruling limiting cross-examination, there is no constitutional violation. A criminal defendant has the right to conduct liberal cross-examination of prosecution witnesses in order to establish possible bias or prejudice; however, the right to confrontation is not denied simply because the prosecution is permitted to examine a witness whom the defense declines for tactical reasons to cross-examine. People v. District Court of El Paso County, 869 P.2d 1281 (Colo. 1994).

Right to cross-examination not denied when court properly prohibited witness for the prosecution from answering question regarding potential penalties if the witness had not entered a plea bargain, where the jury was fully informed that the witness had been allowed to plead guilty to a lesser charge and had received two years' probation and deferred sentence. People v. Collins, 730 P.2d 293 (Colo. 1986).

Trial court carefully balanced defendant's need for cross-examination against the need to preserve the attorney-client privilege and struck a balance accommodating both interests which did not violate the defendant's constitutional rights. People v. Benney, 757 P.2d 1078 (Colo. App. 1987).

But defendant's confrontation clause rights were violated when the court precluded defendant from cross-examining a witness regarding the details of her plea agreement. The record overwhelmingly supported the prosecution's case, so the error was harmless. People v. Houser, 2 013 COA 11, 337 P.3d 1 2 38.

A witness's probationary status is always relevant when the witness is on probation with the state. Trial court erred in prohibiting the defendant from impeaching the witness based on probationary status, but the error was constitutional harmless error in this case. Margerum v. People, 2019 CO 100, 454 P.3d 236.

Right to confrontation under the sixth amendment to the U.S. Constitution not denied by limiting defendant's cross-examination of victim where trial court restricted some inquiries but generously afforded defendant ample opportunity to explore issues material to his defense. Matthews v. Price, 83 F.3d 328 (10th Cir. 1996).

Admitting the video of a victim's deposition did not violate defendant's confrontation rights because (1) the video conference procedure was necessary to protect the health of the victim and ( 2 ) the procedure ensured the reliability of the victim's testimony. People v. Hebert, 2 016 COA 126, 411 P.3d 201.

Deposition of at-risk adult victim via video conference did not violate defendant's sixth amendment right to confront the victim when victim's health was failing and doctor wrote that deposing the victim with defendant present could be fatal. People v. Hebert, 2 016 COA 1 2 6, 411 P.3d 201.

A defendant's right to confrontation is not violated when the court excludes evidence regarding the difference between potential penalties for the original crime charged and those for the charge the witness pleaded guilty to, if the jury receives adequate facts to draw inferences about the witness's bias and motive. Witness's testimony that she expected to receive probation and pleaded guilty to "stay out of jail" was sufficient for the jury to determine bias. People v. McKinney, 80 P.3d 823 (Colo. App. 2003), rev'd on other grounds, 99 P.3d 1038 (Colo. 2004).

Right to compel witness to testify not denied. Where there is no suggestion that a subpoenaed witness's unavailability was due to any action or omission by the prosecution or court, defendant's rights to compulsory process were not denied. People v. Chastain, 733 P.2d 1206 (Colo. 1987).

Requirements for use of witness's former testimony. To satisfy the requirements of constitutional confrontation, a party offering a witness's former testimony must establish the present unavailability of the witness. Also, there must have been a sufficient opportunity for the accused to cross-examine the witness at the former hearing so as to afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement. People v. Madonna, 651 P.2d 378 (Colo. 1982).

Removal of defendant from court during trial did not abridge defendant's constitutional rights. Where defendant had been warned numerous times about his courtroom behavior including getting up from his seat and moving towards judge on one occasion and physically attacking a witness on the witness stand on another so that court would either have to shackle, bind, and gag defendant in court or remove him to another room where he could watch the trial via closed-circuit television and freely talk to his attorney by telephone, trial court used constitutionally permissible method to deal with disruptive defendant. People v. Davis, 851 P.2d 239 (Colo. App. 1993).

A balancing approach may be used to measure the state's interest in enforcing discovery rules against the defendant's right to call witnesses in his favor. The factors considered in such approach include: (1) The reason for and the degree of culpability associated with the failure to timely respond to the prosecution's specification of time and place; (2) whether and to what extent the nondisclosure prejudiced the prosecution's opportunity to effectively prepare for trial; (3) whether events occurring subsequent to the defendant's noncompliance mitigate the prejudice to the prosecution; (4) whether there is a reasonable and less drastic alternative to the preclusion of alibi (or other defense) evidence; (5) and any other relevant factors arising out of the circumstances of the case. People v. Hampton, 696 P.2d 765 (Colo. 1985); People v. Pronovost, 773 P.2d 555 (Colo. 1989).

This case implicates the fundamental right of criminal defendants to call witnesses on their own behalf, and accordingly, raises concerns not present where the exclusion is of a prosecution witness in a criminal case. People v. Melendez, 80 P.3d 883 (Colo. App. 2003), aff'd, 102 P.3d 315 (Colo. 2004).

While abuse of discretion in exclusion of a witness called by the accused in a criminal case remains the standard for appellate review, the constitutional implications of the sanction necessary affect the determination of whether abuse of discretion has been shown. People v. Melendez, 80 P.3d 883 (Colo. App. 2003), aff'd on other grounds, 102 P.3d 315 (Colo. 2004).

Right of confrontation paramount to immunity of juvenile proceedings. Where two juveniles admittedly participated in the crimes which were charged against the defendant, both juveniles were seeking leniency, both had already obtained the dismissal of serious felony counts which would have mandated imprisonment, their dispositional hearings were purposely set for a time subsequent to the defendant's trial, and no testimony tied the defendant to the crime other than that of the juvenile witnesses, the defendant's constitutional right to confrontation and cross-examination was paramount to the interests afforded the juveniles under § 19-1-109 (2), which relates to the inadmissibility of evidence from a juvenile proceeding in a criminal action. People v. Pate, 625 P.2d 369 (Colo. 1981).

Restrictions imposed on the cross-examination of juvenile prosecution witness, stepson of the defendant, held to violate the defendant's right of confrontation under the federal and state constitutions. People v. Bowman, 669 P.2d 1369 (Colo. 1983).

Applied in People v. Flores, 39 Colo. App. 556, 575 P. 2 d 11 (1977); People v. Marin, 686 P. 2 d 1351 (Colo. App. 1983); People v. Greenwell, 830 P.2d 1116 (Colo. App. 1992); People v. Johnson, 2019 COA 159, __ P.3d __.

B. Disclosure of Informant's Identity; Personal Safety Exception.

In order for witness to avoid answering question because of personal safety consideration, there must be a nexus such that the witness legitimately fears reprisal from the defendant or his associates. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972); People v. Thurman, 787 P.2d 646 (Colo. 1990); People v. Turley, 870 P.2d 498 (Colo. App. 1993).

If inquiry which tends to endanger personal safety of witness is one that is normally permissible, the state or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question, and the trial judge can then ascertain the interest of the defendant in the answer and exercise an informed discretion in making his ruling. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972).

Trial court was in error in ordering witness to answer without some showing by the defendant that the disclosure was so material as to outweigh the matter of the safety of the witness. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972).

When conclusion that question is not patently material is justified. Where a question on its face has no bearing on the witness's credibility and where no explanation of the materiality of the witness's address is made, the trial court is, under the circumstances, justified in concluding that the question is not inevitably and patently material. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972).

Defendant bears the initial burden of showing that a confidential informant is a likely source of helpful evidence to the accused. If defendant meets this initial burden, the court must balance the interest in protecting flow of information to law enforcement officers with the defendant's need to obtain evidence. People v. Walters, 768 P.2d 1230 (Colo. 1989); People v. Anderson, 837 P.2d 293 (Colo. App. 1992).

Burden is on the defendant requesting disclosure of informant's identity to make an initial showing that the informant will provide information essential to the merits of his suppression ruling. To do this the defendant must establish a reasonable basis in fact to believe one of two things: Either that the informant does not exist or that the informant did not give police the information on which they purportedly relied. People v. Bueno, 646 P.2d 931 (Colo. 1982); People v. Garcia, 752 P.2d 570 (Colo. 1988).

The government's refusal to reveal the identity of a police informant who is not a witness against the defendant has been clearly distinguished from its refusal to do so where the informant is also a witness. The former does not deny the accused's right of confrontation; in the latter situation, the witness's identity generally must be revealed. People v. Thurman, 787 P.2d 646 (Colo. 1990).

Decision as to whether identity of confidential informant should be disclosed to defense is within the discretion of the trial court, and such decision requires a balancing of the public interest in protecting the flow of information regarding violations of the law against the individual's right to prepare his defense. People v. Roy, 723 P.2d 1345 (Colo. 1986); People v. Garcia, 752 P.2d 570 (Colo. 1988).

Identity of confidential informants should not have been disclosed since the informants were not eyewitnesses or earwitnesses to the crime, were unavailable as witnesses, and were not deeply involved in the criminal transaction. People v. Villanueva, 767 P.2d 1219 (Colo. 1989).

In determining whether the identity of a confidential informant should be revealed to a defendant, the court must determine whether the informant is a likely source of relevant evidence. In this case, the informant was not an earwitness or eyewitness to the crime, he was not available since the prosecution did not know his identity, other witnesses were available to testify, and the informant had no involvement in the criminal transaction. As a result, the court found that the trial court abused its discretion when it ruled that the charges against the defendant would be dismissed if the prosecution did not reveal the identity of the informant. People v. District Court, 767 P.2d 1208 (Colo. 1989).

And balancing test must consider at least these five factors: Whether the informant was an eyewitness or earwitness; whether the informant is available or could be made available by the exercise of reasonable diligence; whether other witness can testify to the likelihood that the informant's testimony will vary significantly from other witnesses' testimony; whether the defendant knew or could without undue effort discover the informant's identity; and whether the informant was peripherally or deeply involved in the criminal transaction. People v. Marquez, 546 P.2d 482 (Colo. 1976); People v. Garcia, 752 P.2d 570 (Colo. 1988); People v. Martinez, 51 P.3d 1029 (Colo. App. 2001), aff'd in part and rev'd in part on other grounds, 69 P.3d 1029 (Colo. 2003).

Balancing test is applied in People v. Anderson, 837 P.2d 293 (Colo. App. 1992); People v. Martinez, 51 P.3d 1029 (Colo. App. 2001), aff'd in part and rev'd in part on other grounds, 69 P.3d 1029 (Colo. 2003).

Disclosure of confidential informant's identity is justified if the accused can show that the informant either witnessed or participated in the crime. People v. Bueno, 646 P.2d 931 (Colo. 1982); People v. Garcia, 752 P.2d 570 (Colo. 1988).

Colorado has recognized a "personal safety exception". A witness's assertion of concern for personal safety does not have a talismanic quality automatically giving the witness the right to withhold information about identity, address and place of employment. Rather, the proper resolution of such issues requires careful attention to the facts of each case and application of the law concerning the right of an accused to confront adverse witnesses. People v. Thurman, 787 P.2d 646 (Colo. 1990).

In order to withhold the address of a witness under the exception there must be a nexus showing that the witness legitimately fears reprisal from the defendant or the defendant's associates. People v. Turley, 870 P.2d 498 (Colo. App. 1993).

After the witness has made a showing that his safety would be endangered if he answered, the defendant has the duty to show that the information sought has some materiality. People ex rel. Dunbar v. District Court, 177 Colo. 429, 494 P.2d 841 (1972); People v. Thurman, 787 P.2d 646 (Colo. 1990); People v. Turley, 870 P.2d 498 (Colo. App. 1993).

The rule that an adequate showing by the prosecution that the witness legitimately fears for his safety requires some showing in turn by the defendant that the disclosure is so material as to outweigh the matter of the safety of the witness, followed by a balancing of interests by the trial court, should not be interpreted as requiring a threshold demonstration by the defendant that the information to be developed from learning the witness's identity, address and place of employment would prove highly material. The defendant's burden extends only to showing that the confidential informant is a material witness on the issue of guilt and that nondisclosure would deprive the defendant of a fair opportunity to test the witness's credibility. People v. Thurman, 787 P.2d 646 (Colo. 1990).

The trial court, in exercising its sound discretion, is in the best position to assess the basis for and seriousness of the witness's apprehension. When such apprehension is expressed, the key consideration for a trial court in assessing a defendant's constitutional claim to a witness's identity, address or place of employment is whether in absence of that information the defendant will have sufficient opportunity to place the witness in his proper setting. People v. Thurman, 787 P.2d 646 (Colo. 1990).

C. Admissibility of Evidence.

Hearsay evidence violates right to meet witnesses face to face. In a criminal action for first degree murder where one of two psychiatrists who were called and examined as witnesses testified to the fact of agreement between themselves and two other psychiatrists, who were not called as witnesses, concerning the sanity of defendant, such testimony was clearly hearsay testimony and should have been excluded, and its admission violated the constitutional rights of the defendant, and particularly this section which provides among other things that the accused shall have the right "to meet the witnesses against him face to face". Carter v. People, 119 Colo. 342, 204 P.2d 147 (1949).

But admission of counsel's statement of proof does not. When a statement by the prisoner's counsel, of what a witness would swear to (it being favorable to the prisoner), is admitted in evidence, the admission of such statement cannot be construed as being in conflict with the provision of this section. Wilson v. People, 3 Colo. 325 (1877).

No violation of confrontation rights where a taped statement of the ALJ during the parole hearing was admitted at trial. Taped statement was not hearsay since it was merely offered to prove defendant was on notice that he was not to escape the confines of his intensive supervision parole. People v. Taylor, 74 P.3d 396 (Colo. App. 2002).

No violation of confrontation rights where detective's limited testimony regarding statements made by coconspirator was admitted at trial. Detective's limited testimony regarding statements made by coconspirator that led to the inclusion of defendant in a photo lineup did not include hearsay. Trial court did not abuse its discretion in admitting the testimony. People v. Martinez, 224 P.3d 1026 (Colo. App. 2009), aff'd on other grounds, 244 P.3d 135 (Colo. 2010).

Evidence showing motive and interest of paid informant witness should be admitted. Where evidence is offered to show the motive of a paid informant witness and his interest in the outcome of the case by reason of pending criminal charges against him, the prosecution of which may or may not be pursued by reason of the testimony he has given on behalf of the people, such evidence is competent and to deny its admissibility would erode defendant's right of confrontation. People v. King, 179 Colo. 94, 498 P.2d 1142 (1972).

Where the defendant contends that the witness's probationary status was motivation for providing statements to the police, but there is no evidence to suggest the witness believed probationary status was in jeopardy, such evidence is irrelevant and properly excluded. People v. Jones, 971 P.2d 243 (Colo. App. 1998).

Prosecutor's warnings to a defense witness regarding potential perjury and false reporting charges did not deprive defendant of fair trial. To determine whether substantial governmental interference occurred, look to the totality of the circumstances, including factors such as the manner in which the prosecutor raises the issue, the warning's effect on the witness's willingness to testify, and whether the prosecutor capitalized on the witness's absence by directing the jury's attention to it during closing arguments. People v. Blackwell, 251 P.3d 468 (Colo. App. 2010).

Admission of hearsay evidence challenged as violation of constitutional right of confrontation. Two-part test is applied when the admission of hearsay evidence is challenged on constitutional grounds. First, the hearsay declarant must be unavailable. Second, the hearsay evidence must bear sufficient indicia of reliability to ensure accuracy in the fact finding process. People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Moore, 693 P.2d 388 (Colo. App. 1984); People v. Hise, 738 P.2d 13 (Colo. App. 1986); People v. Mitchell, 829 P.2d 409 (Colo. App. 1991); People v. Green, 884 P.2d 339 (Colo. App. 1994); Blecha v. People, 962 P.2d 931 (Colo. 1998).

The burden on the prosecution to produce a declarant for trial or to prove his or her unavailability applies only in the usual case and is subject to an exception when the utility of trial confrontation is very remote. People v. Dement, 661 P. 2 d 675 ( C olo. 1983); People v. Ortega, 2 016 C OA 148, 405 P.3d 346.

In applying second part of two-part test, reliability of hearsay evidence may be inferred if such evidence falls within firmly rooted hearsay exception. People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Moore, 693 P.2d 388 (Colo. App. 1984); People v. Green, 884 P.2d 339 (Colo. App. 1994); Blecha v. People, 962 P.2d 931 (Colo. 1998).

But the reliability of a declaration against penal interest should not be inferred. People v. Fincham, 799 P.2d 419 (Colo. App. 1990).

Two-part test is not applicable as testimony given by witness over telephone does not constitute hearsay evidence. Topping v. People, 793 P.2d 1168 (Colo. 1990); People v. Mitchell, 829 P.2d 409 (Colo. App. 1991).

Excited utterance, admissible under C.R.E. 803(2), is inherently trustworthy and trial court is not required to make findings concerning reliability under second part of Dement two-part test. People v. Mitchell, 829 P.2d 409 (Colo. App. 1991); People v. Green, 884 P.2d 339 (Colo. App. 1994).

Admission of excited utterance into evidence despite prosecution's failure to demonstrate declarant's unavailability, although a violation of this section, was harmless and did not require reversal. People v. Martinez, 83 P.3d 1174 (Colo. App. 2003).

The state of mind exception is firmly rooted, and, therefore, statements admitted pursuant to the exception implicitly bear sufficient indicia of reliability to satisfy second part of the Dement two-part test. Accordingly, trial court's failure to make a reliability determination regarding statements by an unavailable witness did not constitute plain error. People v. Gash, 165 P.3d 779 (Colo. App. 2006).

Nontestimonial statements do not implicate a defendant's state constitutional right to confrontation. In light of the U.S. supreme court's holding in Davis v. Washington, 547 U.S. 813 (2006), Colorado's confrontation clause applies only to testimonial statements. Nicholls v. People, 2017 CO 71, 396 P.3d 675.

Admission of out-of-court unsworn statements of two co-defendants, neither of whom was on trial with a third defendant, violated the confrontation clause of this section. Admission of the statements at the third defendant's trial lacked sufficient reliability to overcome a presumption of unreliability in that such defendants were tried separately from the third defendant, the third defendant made no statement that interlocked with the co-defendants' statements, and there were discrepancies between such co-defendants' statements. Editing of said discrepancies by the court could not improve the reliability of such statements. People v. Smith, 790 P.2d 862 (Colo. App. 1989).

Admission of hearsay statements made by unavailable witness through police officer's testimony to prove the truth of the matter asserted violated defendant's confrontation rights and constituted constitutional error. People v. Harris, 43 P.3d 221 (Colo. 2002).

Court erred in prohibiting defendant, on hearsay grounds, from eliciting evidence of what he and an alleged coconspirator said to one another. Nonhearsay verbal act evidence is admissible on the issue of whether a conspiratorial agreement existed because the statement is admitted merely to show that it was actually made, not to prove the truth of what was asserted in it. People v. Scearce, 87 P.3d 228 (Colo. App. 2003).

Trial court erred in prohibiting defendant, on hearsay grounds, from eliciting evidence of what he and his alleged coconspirator said to one another about the subject of the alleged conspiracy. Defendant argued, to no avail, that he was entitled to present evidence of whether there was any type or even suggestion of agreement between himself and the woman to use force, threats, or intimidation against the victim. People v. Scearce, 87 P.3d 228 (Colo. App. 2003).

Defendant was prohibited from eliciting testimony about statements he and his alleged coconspirator made, not for the truth of the matters contained in the statements, but for the very fact that they were made, to dispute the prosecution's claim that there was an agreement to use force, threats, or intimidation with a deadly weapon against the victim. As such, the evidence was admissible, and the trial court erred in excluding it. People v. Scearce, 87 P.3d 228 (Colo. App. 2003).

Testimonial hearsay must be excluded when declarant is unavailable and there has been no prior opportunity for cross-examination by defendant. Raile v. People, 148 P.3d 126 (Colo. 2006).

Note written by the victim, the features of which demonstrate that the primary purpose in writing it was to create an out-of-court substitute for trial testimony and to aid in the investigation and prosecution of the defendant in the event of her murder, was testimonial and its admission violated defendant's confrontation rights. People v. McFee, 2 016 COA 97, 41 2 P.3d 848.

Admission of witnesses' out-of-court statements does not violate confrontation clause where witnesses remember some events of the night in question and defendant was able to cross-examine them. Witnesses were not considered unavailable because they suffered partial memory loss. People v. Leverton, 2 017 COA 34, 405 P.3d 40 2 .

When the primary purpose of an interrogation is either to elicit statements that establish or prove past events or to elicit statements that are potentially relevant to a later criminal prosecution, the statements elicited are testimonial. On the other hand, nontestimonial statements are statements made during an on-going emergency to assist the police in their efforts to assess the current situation. Raile v. People, 148 P.3d 126 (Colo. 2006).

Statements in response to a police interrogation the primary purpose of which was to investigate possible crimes already committed were testimonial and should not have been admitted. Any emergency situation that may have occurred had passed by the time the interrogation began. The admission, however, was harmless error. Raile v. People, 148 P.3d 126 (Colo. 2006).

The court did not violate defendant's confrontation rights when it admitted nontestimonial statements made to medical personnel. The victim's statement to the triage nurse that she had been raped and her statement to the emergency room doctor that her assailant held her mouth closed during the assault would not be reasonably considered testimonial; each statement was given in order for the victim to receive medical care. People v. Jones, 313 P.3d 626 (Colo. App. 2011), rev'd on other grounds, 2013 CO 59, 311 P.3d 274.

The admission of documentary evidence to show a previous conviction for habitual count purposes are business records and, therefore, not "testimonial statements" subject to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). People v. Shreck, 107 P.3d 1048 (Colo. App. 2004).

Admission of proofs of service attached to defendant's driving record were not testimonial for purposes of Crawford because the proofs reflected the administrative status of defendant's driving privilege, and their primary functions were to notify defendant that he was not permitted to drive a motor vehicle in Colorado and to record that such notice was given. People v. Espinoza, 195 P.3d 1122 (Colo. App. 2008).

Although an objective person who prepared such a proof of service might reasonably believe it would be available in the event of a later traffic violation, this possibility does not make the document testimonial where the document served a routine administrative function and was created before the charged crime occurred. People v. Espinoza, 195 P.3d 1122 (Colo. App. 2008).

Booking reports and mittimus not "testimonial" and thus did not trigger defendant's confrontation rights. Trial court did not err in admitting them as public records. People v. Warrick, 284 P.3d 139 (Colo. App. 2011).

For analysis to be followed in challenges to hearsay evidence on constitutional grounds, see People v. Dement, 661 P.2d 675 (Colo. 1983); People v. Nunez, 698 P.2d 1376 (Colo. App. 1984), aff'd, 737 P.2d 422 (Colo. 1987); People v. Mathes, 703 P.2d 608 (Colo. App. 1985); People v. Welsh, 58 P.3d 1065 (Colo. App. 2002), aff'd on other grounds, 80 P.3d 296 (Colo. 2003).

D. Right to Compel Attendance.

The provision giving accused right to have process to compel attendance of witnesses in his behalf is mandatory. Osborn v. People, 83 Colo. 4, 262 P. 892 (1927).

It refers only to witnesses residing within state. Baker v. People, 72 Colo. 68, 209 P. 791 (1922).

Rationale for compelling attendance of only resident witnesses. Although the right to compel the attendance of a witness has been held to extend only to witnesses residing within the state, the rationale supporting that limitation on the duty of the court has been the absence of any means by which the state could compel the presence of out-of-state witnesses. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).

Method for compelling attendance of out-of-state witnesses. Section 16-9-201 et seq. provides a method whereby, among states that have adopted the act, a court of one state may certify the need for the appearance and testimony of a material witness residing in another state and thereby invoke the authority of the court in the resident state to compel the witness's attendance in the certifying court. Hence, at least under the circumstances specified in the statute, a Colorado court may now compel the attendance of out-of-state witnesses. People v. McCabe, 37 Colo. App. 181, 546 P.2d 1289 (1975).

Defendant may obtain presence of any or all witnesses endorsed on information. Where a defendant wishes to obtain the presence of any or all of the witnesses endorsed on the information, he is free to do so, since the court's process and subpoena power is available to him. Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971).

Trial court did not err in granting witness's motion to quash subpoena when witness claimed he would invoke his fifth amendment right and not answer any questions posed to him. A defendant has no right to have the jury see a witness refusing to answer questions. Defendant did not request an in camera hearing on the motion to quash and did not question the witness's intent to invoke his fifth amendment right. People v. Clark, 2 015 COA 44, 370 P.3d 197.

V. RIGHT TO SPEEDY PUBLIC TRIAL.

Law reviews. For comment on Hicks v. People appearing below, see 34 Rocky Mt. L. Rev. 397 (1962). For comment on Thompson v. People appearing below, see 42 Den. L. J. 54 (1965) and 37 U. C olo. L. Rev. 511 (1965). For article, "Pronouncements of the U.S. Supreme C ourt Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to speedy trials, see 15 Colo. Law. 1595 and 1617 (1986). For article, "The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado--Part I", see 31 Colo. Law. 115 (July 2002). For article, "The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado--Part II", see 31 Colo. Law. 59 (Aug. 2002).

A. Right to Speedy Trial.

The right to a speedy trial is a basic constitutional right, guaranteed by both the Colorado and United States Constitutions in essentially the same language. Valdez v. People, 174 Colo. 268, 483 P.2d 1333 (1971); Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971); People v. Small, 177 Colo. 118, 493 P.2d 15 (1972).

The right to a speedy trial is guaranteed by this section, and this constitutional protection is independent of any right established by statute or rule. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

An accused person's right to a speedy trial is ultimately grounded on the federal and state constitutions, and statutes relating to speedy trial are intended to render these constitutional guarantees more effective. Simakis v. District Court, 194 Colo. 436, 577 P.2d 3 (1978).

Primary objective of right to speedy trial. A speedy public trial involves a trial, a judicial examination of issues present in a criminal case in order to arrive at a just result. Justice to both the accused and the public is the primary objective. Speed is important insofar as it aids in the achievement of such justice. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964).

The right to a speedy trial is not only for the benefit of the accused, but also for the protection of the public. It is essential that an early determination of guilt be made, so that the innocent may be exonerated and the guilty punished. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971).

The right to a speedy trial has been formulated to force the prosecution to try a defendant promptly in compliance with the statutes, rules, and constitutional requirements of each case. People ex rel. Coca v. District Court, 187 Colo. 280, 530 P.2d 958 (1975).

A criminal case must be promptly tried, not only to limit the possibility that delay will impair the ability of an accused to defend himself, but also to protect the public in insuring prompt disposition of criminal cases for delay inflicts injury because evidence and witnesses disappear, memories fade, and events lose their perspective. Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971).

The essential ingredient of the constitutional requirement of a speedy trial is that the defendant and society have a mutual right to expect the orderly expedition of criminal charges, not mere speed. People v. Small, 631 P.2d 148 (Colo.), cert. denied, 454 U.S. 1101, 102 S. Ct. 678, 70 L. Ed. 2d 644 (1981).

Right of accused to speedy trial is an important civil right, and when the constitutional mandate is invoked, the matter should receive careful consideration by the courts. Ex parte Russo, 104 Colo. 91, 88 P.2d 953 (1939).

This section is mandatory. Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961).

Sixth amendment guarantee to speedy trial has been extended to protect defendants in state criminal actions. The safeguard in the federal constitutional guarantee of a speedy trial is no more restrictive than that found in the state constitution. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

State provision is congruent to federal. Colorado constitutional provision guaranteeing a speedy, public trial is congruent to the United States constitutional provision entitling a defendant in a criminal case to a speedy trial. Lucero v. People, 173 Colo. 94, 476 P.2d 257 (1970).

Finding under state provision requires finding under federal. A conclusion of the supreme court that defendant has not been denied a speedy trial under the Colorado Constitution requires the concomitant finding that the requirements of the United States Constitution have also been met. Lucero v. People, 173 Colo. 94, 476 P.2d 257 (1970).

The constitutional right to a speedy trial derived from the federal and Colorado constitutions, is distinct from the statutory speedy trial right and the determination as to one does not necessarily dispose of the other. People v. Harris, 914 P.2d 425 (Colo. App. 1995).

Constitutional and statutory right distinguished. The constitutional right to a speedy trial, as distinguished from the statutory right to a speedy trial, does not require that a defendant be tried within a specified period of time. People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

Provisions of Crim. P. 48 and constitutional issue as to denial of speedy trial are mutually exclusive, and the resolution of one does not necessarily determine the resolution of the other. Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974).

Right to speedy trial in juvenile proceedings. Trial courts are bound by the statutory and constitutional speedy trial requirements in juvenile as well as adult proceedings; fundamental fairness requires no less. P.V. v. District Court, 199 Colo. 357, 609 P.2d 110 (1980).

Right to speedy trial on de novo appeal. An accused on appeal to the county court from conviction of an offense, is entitled to a speedy trial de novo in such court, notwithstanding a speedy first trial before a justice of the peace. Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961).

The invocation of the speedy-trial provision need not await indictment, information or other formal charge. Dodge v. People, 178 Colo. 71, 495 P.2d 213 (1972); People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Defendant's being at large under bond manifestly does not divest him of right to speedy trial which is guaranteed by the constitution. Ex parte Miller, 66 Colo. 261, 180 P. 749 (1919); Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961).

The right to a speedy trial is not dissipated by the fact that the defendant is granted bail. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971).

Incarceration under prior conviction does not dissipate right to speedy trial. A sovereign may not deny an accused person a speedy trial by reason of the circumstance that he is incarcerated in a penal institution of that sovereign under a prior conviction and sentence in a court also of that sovereign. Rader v. People, 138 Colo. 397, 334 P.2d 437 (1959).

Nor does imprisonment in foreign jurisdiction. The fact that an accused was imprisoned by a foreign jurisdiction does not ipso facto deprive him of his rights to a speedy trial in another jurisdiction. There devolves upon the prosecuting attorney in the accusing state the duty to exercise good faith in an attempt to extradite the accused from a foreign jurisdiction so that he might be given a speedy trial. If the district attorney is able to secure the accused's presence in Colorado for trial, petitioner may at the trial raise and have determined the question as to whether he has been prejudiced by the state's delay to such an extent as to violate his constitutional right to a speedy trial. If the district attorney is unable to secure his presence for trial on the date set, then, the district court must continue the trial date until such time as his presence at trial can be secured. Rudisill v. District Court, 169 Colo. 66, 453 P.2d 598, cert. denied, 395 U.S. 925, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969); Egbert v. People, 169 Colo. 169, 454 P.2d 811 (1969).

District attorney's failure to initiate timely extradition proceedings denied petitioner his constitutional right to a speedy trial. Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974).

Ad hoc balancing test is to be used to determine whether right to speedy trial has been denied. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); People v. Buggs, 186 Colo. 13, 525 P.2d 421 (1974); People v. Haines, 37 Colo. App. 302, 549 P.2d 786 (1976).

The determination of whether defendant's constitutional rights to a speedy trial have been violated requires a balancing of the conduct of the people and of the defendant, which compels an ad hoc approach to cases where the right is asserted. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975); People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979).

Four factors relate to the constitutional concept of a speedy trial: (1) The length of the delay, (2) the reason for the delay, (3) the prejudice to the defendant, and (4) waiver by the defendant. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973); People v. Buggs, 186 Colo. 13, 525 P.2d 421 (1974).

In determining whether right to a speedy trial has been denied, four factors to be weighed in the balance are the length of the delay, the reason for the delay, the defendant's assertion or demand for a speedy trial, and the prejudice to the defendant. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975); People v. Haines, 37 Colo. App. 302, 549 P.2d 786 (1976); People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979); People v. Small, 631 P.2d 148 (Colo.), cert. denied, 454 U.S. 1101, 102 S. Ct. 678, 70 L. Ed. 2d 644 (1981); 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); Franklin v. People, 734 P.2d 133 (Colo. App. 1986); People v. Bost, 770, P.2d 1209 (Colo. 1989); Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993); People v. Harris, 914 P.2d 425 (Colo. App. 1995); People v. Fears, 962 P.2d 272 (Colo. App. 1997).

Factors in determining whether speedy trial afforded. The circumstances of each case must be examined to determine whether a speedy trial has been afforded, and, in making this determination, the court must consider the length of the pretrial delay, the reasons for the delay, whether the defendant has demanded a speedy trial, and whether any prejudice actually resulted to the defendant. Gelfand v. People, 196 Colo. 487, 586 P.2d 1331 (1978).

But, prior to application of four factors, court must determine that the length of delay is at least presumptively prejudicial to the defendant before further inquiry is warranted. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993); People v. Harris, 914 P.2d 425 (Colo. App. 1995).

Court found eight years was sufficient delay to warrant consideration of other three factors. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993).

No one factor determinative. Regarding the factors to be considered in determining whether defendant's right to a speedy trial has been violated, no one of these factors alone is determinative. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Such as prejudice. Whether or not defendant can show prejudice from delay to bring him to trial is simply a factor to be considered and is not decisive of whether defendant's constitutional rights have been violated. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Where there has been no finding that the people were in some way to blame for unnecessary delay in bringing defendant to trial, then the absence of a finding of prejudice to the defendant must be heavily weighed in the balancing process for determining whether defendant was denied a speedy trial. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Or where there is supportive evidence of defendant's desire for speedy trial, that fact alone is not determinative of whether defendant was denied such right. That factor, though in the defendant's favor, is to be weighed along with the other elements which must be given consideration in the balancing of the rights of the defendant and the people. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Prejudice cannot be presumed where delay has not been shown to be arbitrary or oppressive. Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971).

Prejudice to the defendant cannot be presumed solely from the length of delay, nor from unsupported allegations of such prejudice. People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979).

Allegations of anxiety, disappearance of witnesses, and financial strain must be documented to support a claim of denial of one's right to a speedy trial. People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979).

Weight given to defendant's delay in determining denial. The defendants' delay in asserting their right to a speedy trial is entitled to strong evidentiary weight in determining whether the defendants were denied their constitutional right to a speedy trial. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

This section is a guarantee only against arbitrary and oppressive delays. Jordan v. People, 155 Colo. 224, 393 P.2d 745 (1964); Valdez v. People, 174 Colo. 268, 483 P.2d 1333 (1971).

A speedy public trial is a relative concept. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

The right to a speedy trial is necessarily relative. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965); Arthur v. People, 165 Colo. 63, 437 P.2d 41 (1968); Valdez v. People, 174 Colo. 268, 483 P.2d 1333 (1971).

Depending upon the circumstances of each case. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964); Casias v. People, 160 Colo. 152, 415 P.2d 344, cert. denied, 385 U.S. 979, 87 S. Ct. 523, 17 L. Ed. 2d 441 (1966); Ferguson v. People, 160 Colo. 389, 417 P.2d 768 (1966); Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); People v. Small, 177 Colo. 118, 493 P.2d 15 (1972).

The right of a speedy trial is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964); Arthur v. People, 165 Colo. 63, 437 P.2d 41 (1968).

And consistent with court's business. The constitutional guarantee of a speedy trial has been held to be a trial consistent with the court's business. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965); Adargo v. People, 159 Colo. 321, 411 P.2d 245 (1966); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970); Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971); People v. Small, 177 Colo. 118, 493 P.2d 15 (1972); People v. Mayes, 178 Colo. 429, 498 P.2d 1123 (1972); Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972); People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

A speedy public trial does not mean trial immediately after accused is apprehended and indicted, but public trial consistent with the court's business. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964); Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969).

The constitutional right to a speedy trial requires only that a trial be held within a time period consistent with the court's case load. People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

An accused is not under a duty to demand trial within any specific time before he can claim the protection of this mandatory section affording him the right to a speedy public trial. Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961).

But objection to delay at trial is prerequisite to discharge. The objection that the defendant has not had a speedy trial must be speedily raised when the case is moved for trial. Such an objection is a prerequisite to his claim for discharge under § 18-1-405 and under this section. Keller v. People, 153 Colo. 590, 387 P.2d 421 (1963).

Defendant can waive his constitutional and statutory right to a speedy trial by his failure to make a timely objection. People v. O'Donnell, 184 Colo. 104, 518 P.2d 945 (1974).

To properly raise question, accused may apply for discharge or dismissal for lack of a speedy trial. Jordan v. People, 155 Colo. 224, 393 P.2d 745 (1964); Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971).

Or petition for habeas corpus. The question of whether a speedy public trial by an impartial jury in a criminal case as provided in this section has been denied, is properly raised by a petition for a writ of habeas corpus. Rader v. People, 138 Colo. 397, 334 P.2d 437 (1959).

Petition for habeas corpus treated as motion under Crim. P. 35(b). When the issues before a trial court in a habeas corpus proceeding raise substantive constitutional questions concerning the right to a speedy trial, the issues are within the purview of postconviction remedy, and a petition for habeas corpus would be treated as a motion under Crim. P. 35(b). Dodge v. People, 178 Colo. 71, 495 P.2d 213 (1972).

Judicial question. Whether an accused has been denied a speedy public trial within the constitution is a judicial question. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964); Casias v. People, 160 Colo. 152, 415 P.2d 344, cert. denied, 385 U.S. 979, 87 S. Ct. 523, 17 L. Ed. 2d 441 (1966); Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971).

The burden is upon defendant to prove that an expeditious trial was denied him. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969); Ziatz v. People, 171 Colo. 58, 465 P.2d 406 (1970).

A motion for discharge or for dismissal for want of due prosecution of a charge of crime must be sustained by the accused; he has the burden of showing that he was not afforded a speedy trial. Jordan v. People, 155 Colo. 224, 393 P.2d 745 (1964); Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971).

The burden is upon the defendant to prove that he has been denied an expeditious trial to his prejudice. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971); People v. Small, 177 Colo. 118, 493 P.2d 15 (1972).

Burden is upon defendant who asserts denial of speedy trial to show facts establishing that, consistent with court's trial docket conditions, he could have been afforded trial. Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972); People v. O'Neill, 185 Colo. 202, 523 P.2d 123 (1974).

The defendant has the burden of proving that his constitutional speedy trial right has been denied. People v. Small, 631 P.2d 148 (Colo.), cert. denied, 454 U.S. 1101, 102 S. Ct. 678, 70 L. Ed. 2d 644 (1981); 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).

Right to speedy trial may be waived. Keller v. People, 153 Colo. 590, 387 P.2d 421 (1963); Chambers v. District Court, 180 Colo. 241, 504 P.2d 340 (1972).

Affirmative action is necessary for waiver. The constitutional right of an accused to a speedy public trial is not waived by inaction on the part of the accused. Affirmative action on the part of the accused, such as an express consent to delay or request therefor, is necessary to constitute such waiver. Hicks v. People, 148 Colo. 26, 364 P.2d 877 (1961); Chambers v. District Court, 180 Colo. 241, 504 P.2d 340 (1972).

Failure to request a speedy trial is one factor to be considered in determining if defendant waived his constitutional right, nevertheless, a defendant does not have the responsibility of bringing himself to trial. Action on the defendant's part, such as consent to delay or request therefor, is necessary to constitute such waiver. Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974).

Failure to object to delay can waive right. The constitutional guarantee of a speedy trial can be waived by failure to make objection to the delay at the time of trial. Keller v. People, 153 Colo. 590, 387 P.2d 421 (1963); Keller v. Tinsley, 335 F.2d 144 (10th Cir.), cert. denied, 379 U.S. 938, 85 S. Ct. 342, 13 L. Ed. 2d 348 (1964); Valdez v. People, 174 Colo. 268, 483 P.2d 1333 (1971).

Failure to object is a factor which may be considered in determining whether a waiver of the right to a speedy trial took place. Chambers v. District Court, 180 Colo. 241, 504 P.2d 340 (1972).

Failure to assert right makes it difficult to prove denial. Failure to assert the right to a speedy trial will make it difficult for a defendant to prove that he was denied a speedy trial. People v. Buggs, 186 Colo. 13, 525 P.2d 421 (1974).

A plea of guilty to a charge acts as a waiver to any argument a defendant may have had concerning the denial of a speedy trial. Wixson v. People, 175 Colo. 348, 487 P.2d 809 (1971).

Where defendant had already pleaded guilty and had been sentenced when his motion to dismiss for denial of speedy trial was filed, he waived any argument he may have had concerning a denial of a speedy trial. Wixson v. People, 175 Colo. 348, 487 P.2d 809 (1971).

The erroneous denial of a motion to dismiss for violation of statutory speedy trial right does not divest the court of subject matter jurisdiction to accept a guilty plea. People v. McMurtry, 122 P.3d 237 (Colo. 2005).

A guilty plea waives a defendant's right to claim the improper denial of his or her statutory right to a speedy trial. People v. McMurtry, 122 P.3d 237 (Colo. 2005).

Delay attributable to the defense does not deny speedy trial. Where delays in a case being set for trial occur and are not solely attributable to the prosecution but must be recognized to be in part a product of the defense, a speedy public trial has not been denied. People v. Small, 177 Colo. 118, 493 P.2d 15 (1972).

Where the record shows the withdrawal of counsel, the appointment of new counsel, and a continuance by agreement, it cannot be said that defendant was denied a speedy public trial. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964).

The record did not disclose that defendant was denied the "speedy" public trial guaranteed him by the constitution where at least certain of the delays in getting to trial were of his own making. Lucero v. People, 161 Colo. 568, 423 P.2d 577 (1967); People v. Bost, 770 P.2d 1209 (Colo. 1989).

Where the record disclosed four continuances at the request, or with the consent of defendant, the appointment, withdrawal, and reappointment of counsel, and the entry and withdrawal of a plea of not guilty by reason of insanity, the defendant was not denied a speedy trial. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed. 2d 709 (1965).

Where, following a continuance that is not attributable to the defendant, the court sets a trial date within the speedy trial period but defense counsel objects to that date because of his or her own scheduling conflict, the latter delay is attributable to the defendant. Hills v. Westminster Mun. Court, 215 P.3d 1221 (Colo. App. 2009).

Where part of the delay in trial was due to the trial court's protection of the accused by finding that his counsel had not had sufficient time to confer with him to make proper preparations for trial, it cannot be said that the trial was unreasonably delayed in contravention of this section. Rhodus v. People, 160 Colo. 407, 418 P.2d 42 (1966).

A defendant is not denied a speedy trial, when trial is held more than 14 months after he is charged when the delay which preceded trial was occasioned, to a large extent, by the defendant who requested and obtained numerous continuances in an attempt to effectuate a plea bargain. Maynes v. People, 178 Colo. 88, 495 P.2d 551 (1972).

Where the delay at the time defendant filed his motion to dismiss was less than one year from the date of indictment, he had been out on bond for most of that time, his motion for continuances caused at least nine weeks of delay, he was represented by counsel at all relevant times, and he appeared before the court several times, and yet he did not request an early trial date, considering all these factors, the defendant was not denied his constitutional right to a speedy trial. People v. Reliford, 186 Colo. 6, 525 P.2d 467 (1974).

Where the record reflects that the defendants made no demand for a speedy trial until 14 months expired and showed no prejudice as a result of the delay, reflects that the delay occurred to permit the defendants to obtain expert testimony and prepare for trial, and moreover, the defendants were free on bond at all times prior to trial, taking all of the factors into account, the defendants were not denied their constitutional right to a speedy trial. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

Right to speedy trial not denied where delay was only three and one-half months; the reasons for delay were reasonable and legitimate under the circumstances; defendant had not asserted his right was violated when the court reset the case for trial; nor did defendant suffer prejudice based on additional expense and anxiety since during the delay defendant was on bond. People v. Wolfe, 9 P.3d 1137 (Colo. App. 1999).

Delay consistent with court's business was not prejudicial. Where the docket of the trial court was extremely congested, a delay of eight months before trial was consistent with the orderly business of the court, and where the defendant failed to show that the delay was purposeful or oppressive, or that it resulted in prejudice, the defendant was accorded a fair trial in accordance with his constitutional rights. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

The record is devoid of any showing that the trial was not held as soon as consistent with the court's business or that defendant suffered any prejudice by reason of the short delay when between the date of charge and of trial, defendant, with his counsel, made seven appearances in court to dispose of various pretrial matters. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969).

Defendant did not sustain the burden of showing that a continuance of over three months was not consistent with the court's business in that defendant was prejudiced by the continuance. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

Docket congestion factor in reasonableness of delay in retrial. Although it is clear that docket congestion would not warrant a retrial later than the three-month maximum period for delay caused by a mistrial, it is a factor in determining the reasonableness of the delay within the statutory and procedural time periods of § 18-1-405 (6)(e) and Crim. P. 48 (b)(6)(V). Pinelli v. District Court, 197 Colo. 555, 595 P.2d 225 (1979).

When a trial court continues a case due to docket congestion, but makes a reasonable effort to reschedule within the speedy trial period, and defense counsel's scheduling conflict does not permit a new date within the speedy trial deadline, the resulting delay is attributable to defendant. The period of delay is excludable from time calculations for purposes of the applicable speedy trial provision. Hills v. Westminster Mun. Court, 245 P.3d 947 (Colo. 2011).

Prosecution allowed reasonable time to prepare for trial. Under this section an accused person is entitled to a trial, as soon as, regard being had to the terms of the court, reasonable opportunity is afforded to the prosecution, by fair and honest exercise of reasonable diligence, to prepare for trial. Ex parte Miller, 66 Colo. 261, 180 P. 749 (1919).

A speedy public trial envisions a reasonable opportunity for the prosecution, by a fair and honest exercise of diligence, to prepare for trial, after which, if there is a term of court at which the trial might be had, the prosecution may try the case. Medina v. People, 154 Colo. 4, 387 P.2d 733 (1963), cert. denied, 379 U.S. 848, 85 S. Ct. 88, 13 L. Ed. 2d 52 (1964).

Where delay is the product of a valid investigative or prosecutorial purpose, it is not chargeable against the government. People v. Small, 631 P.2d 148 (Colo.), cert. denied, 454 U.S. 1101, 102 S. Ct. 678, 70 L. Ed. 2d 644 (1981).

It is responsibility of district attorney and trial court to assiduously avoid any occasion for useless and unnecessary delay in the trial of a criminal case. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Defendant's right to speedy trial held denied. Day v. People, 152 Colo. 152, 381 P.2d 10, cert. denied, 375 U.S. 864, 84 S. Ct. 134, 11 L. Ed. 2d 90 (1963).

Thirteen-month delay held denial of right of speedy trial. Where defendant was charged with unlawful sale of narcotics in one indictment and was subjected to jurisdiction of court for 13 months, a subsequent indictment charging defendant with same offense must be dismissed for lack of speedy trial. Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972).

As was delay of two and one-half years. A delay of two and one-half years from the time of arrest and restraint until the time of trial was a denial of defendant's constitutional right to a speedy trial even if defendant was in the state prison part of the time for another crime. Dodge v. People, 178 Colo. 71, 495 P.2d 213 (1972).

And deliberate postponement by district attorney. Where the facts clearly establish that the petitioner was denied a speedy trial through no fault of his own and as a result of the deliberate election of the district attorney to postpone the trial so that efforts could be made to obtain the petitioner's testimony in companion and related cases, the petitioner has been denied a speedy trial under the provisions of Crim. P. 48(b). Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219 (1971).

And neglect or laches of prosecution in preparing for trial. If the trial is delayed or postponed beyond such period necessary to provide a reasonable opportunity for a diligent prosecutor to prepare for trial, when there is a term of court at which the trial might be had, by reason of the neglect or laches of the prosecution in preparing for trial, such delay is a denial to the defendant of his rights to a speedy trial and in such case a party confined, upon application by habeas corpus, is entitled to discharge from custody. Ex parte Miller, 66 Colo. 261, 180 P. 749 (1919).

But delay before second trial not prejudicial. The defendant was tried with reasonable promptness following the mandate of the United States supreme court that his guilty plea be set aside, although eight and one-half years had passed since the date of the crime, the record discloses that defendant was not deprived of any defense, or that any witness was unavailable because of the delay, and the defendant was in no manner prejudiced by delay. Arthur v. People, 165 Colo. 63, 437 P.2d 41 (1968).

Delay caused by mistrial not counted between arraignment and trial. Pinelli v. District Court, 197 Colo. 555, 595 P.2d 225 (1979).

Time involved in people's petition for writ of prohibition is not to be included in calculating the period of delay to determine if there was a denial of the right to a speedy trial. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Delay in ruling on motion for new trial did not violate defendant's right to a speedy trial guaranteed by both this section and the federal constitution. Vaughn v. Trujillo, 171 Colo. 24, 464 P.2d 292 (1970).

Defendant's right to speedy trial held not denied. Ferguson v. People, 160 Colo. 389, 417 P.2d 768 (1966); Rowse v. District Court, 180 Colo. 44, 502 P.2d 422 (1972).

Delay of nine to 10 months not violative. Where delay has occurred, but defendant has not made a showing of prejudice, nor can any significant part of the delay be said to have been unnecessarily caused by the people, the fact of delay of from nine to 10 months in bringing defendant to trial is insufficient alone to amount to a violation of defendant's right to a speedy trial. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Delay of over three years, occasioned by two original proceedings in the Colorado supreme court in which the prosecution made a legitimate effort to clarify the constitutional status of the death penalty statute and which did not materially prejudice the defendant, did not constitute a denial of the defendant's right to a speedy trial. People v. Fears, 962 P.2d 272 (Colo. App. 1997).

A six-month delay between the defendant's conviction and sentencing is not presumptively prejudicial; therefore, there is no constitutional speedy trial violation in relation to the sentencing. People v. Green, 2 01 2 COA 68M, 296 P.3d 260.

Delay of resentencing for 29 months not violative. Although there was no apparent reason for the lengthy delay, particularly in light of the numerous requests defendant made for court action, the absence of any showing that the delay was intentionally caused by the prosecution or that defendant was prejudiced thereby leads to the conclusion that there was no violation of defendant's speedy trial right. People v. Luu, 983 P.2d 15 (Colo. App. 1998).

Reason for delay was attributable to defendant's concerns about his representation by the public defender, and the court's subsequent accommodations of such concern was made, in part, to protect defendant's right to adequate representation. Therefore, any prejudice defendant suffered by the 46-day extension was outweighed by the trial court's concerns for adequate representation. People v. Brewster, 240 P.3d 291 (Colo. App. 2009).

A denial of credit for time spent in the county jail pending appeal is not a violation of defendant's rights to a speedy trial, to due process of law or to be free from double jeopardy. People v. Falgout, 176 Colo. 94, 489 P.2d 195 (1971).

Where defendant's complex criminal behavior causes him to be in the penitentiary when his case is set for trial, the delay that occurs cannot be interpreted to be a violation of his constitutional rights. Scott v. People, 176 Colo. 289, 490 P.2d 1295 (1971).

Where defendants escaped from jail shortly prior to the date of their trial, and delay of trial was caused exclusively by such escape and the interval during which they remained at large, a claim that defendants were denied a speedy trial is without merit. Kostal v. People, 144 Colo. 505, 357 P.2d 70 (1960), cert. denied, 365 U.S. 804, 81 S. Ct. 471, 5 L. Ed. 2d 462 (1961).

No violation even though defendant did not contribute to delay. A period of undesirable delay which falls short of violating statutory and procedural rule protection is not a denial of defendant's right to a speedy trial merely because defendant did not cause the delay. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Calculation of delay for corporate defendant. Where defendant is a corporation, and hence not subject to incarceration, the period of delay relevant to the assertion of defendant's right to a speedy trial began on the date when probable cause was determined and the defendant was bound over to the district court at the preliminary hearing in county court because it was on this date that the defendant was placed in the same relative position, as far as its status as an "accused" is concerned, as if there had been an indictment or information filed in the district court. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).

Forfeiture action under Colorado public nuisance statute is civil in nature and therefore is not subject to constitutional or statutory speedy trial provisions applicable to criminal prosecutions. People v. Milton, 732 P.2d 1199 (Colo. 1987).

When right to speedy trial attaches. The constitutional right to a speedy trial attaches when a defendant is formally accused by a charging document, such as a criminal complaint, information, or indictment. 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).

Defendant must assert right. A criminal defendant has no duty to bring himself to trial; but he does have a responsibility to assert his right to a speedy trial. People v. Small, 631 P.2d 148 (Colo.), cert. denied, 454 U.S. 1101, 102 S. Ct. 678, 70 L. Ed. 2d 644 (1981).

But defendant is precluded from raising the issue for the first time on appeal. People v. Scialabba, 55 P.3d 207 (Colo. App. 2002).

Even if defendant's statement regarding a dismissal can be construed as request for motion to dismiss on speedy trial grounds, it was nonetheless without merit since it was made before the speedy trial time ended and defendant was still represented by counsel. People v. Abdu, 215 P.3d 1265 (Colo. App. 2009).

Computation of length of delay is not subject to specific limitations or exclusions, such as the fixed time periods established by statute or rule. People v. Small, 631 P.2d 148 (Colo.), cert. denied, 454 U.S. 1101, 102 S. Ct. 678, 70 L. Ed. 2d 644 (1981).

Reinstitution of identical criminal charges held not to violate speedy trial principles. People v. Small, 631 P.2d 148 (Colo. 1981).

Defendant's actions held to delay proceedings. The defendant may not whipsaw the court between its obligation to protect his right of confrontation and his right to a speedy trial. When, as a result of defendant's actions, the court cannot determine whether he has waived his right to be present at trial, it is clear that defendant has delayed proceedings within the meaning of C.M.C.R. 248, a speedy trial provision. Crandall v. Municipal Court ex rel. City of Sterling, 650 P.2d 1324 (Colo. App. 1982).

Dismissal of detainer. In determining whether to dismiss charges for lack of prompt notification, a court must consider more than the general factors underlying the constitutional right to a speedy trial because the Uniform Mandatory Disposition of Detainers Act effectuates other policies besides the speedy trial right. People v. Higinbotham, 712 P.2d 993 (1986).

Twenty-nine-month delay between arrest in Arizona on Colorado offense and filing of detainer not violative of speedy trial rights where delay was not an attempt to hamper defense. People v. Bost, 770 P.2d 1209 (Colo. 1989).

Court found defendant's constitutional right to a speedy trial was not violated, even though sentencing was delayed for eight years, where defendant's actions caused most of the delay, there was no evidence that prosecution intentionally caused delay to prejudice defendant's case, the record showed only limited efforts by defendant to seek speedy sentencing, and defendant was unable to show prejudice resulting from sentencing delay. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993).

Court uses four-factor test to evaluate speedy appeal claim. The four factors are: (1) Length of delay; (2) the reason for delay; (3) defendant's assertion of the right; and (4) any prejudice to defendant resulting from delay. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

Prejudice in appellate delay case is essential element, and review depends on procedural context of defendant's claim. If the claim is presented to gain temporary release pending appeal, several factors are considered, but, if the inquiry is on direct appeal, the only consideration is whether the delay has impaired defendant's ability to prosecute the appeal. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

Applying four-part test, defendant's right to speedy appeal has been prejudiced. First, five-year delay clearly excessive and inordinate. Second, reason for delay in this case must be attributed to the government since the delay is the result of court reporter's illness and inability to contract with other court reporters experienced in transcribing notes. Third, defendant has asserted his right since he timely filed his appeal and has actively sought relief. The first three factors all weigh in favor of defendant, so court must consider critical fourth element, prejudice. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

In order for defendant to show prejudice, he must show the delay has impaired his ability to present his arguments on appeal. Defendant claims trial court committed constitutional error by failing to consult with defense before answering question from jury. Review of claim is impossible, transcript of what happened is unavailable, and appellate court's instructions to reconstruct the record on remand failed to produce enough information to review the claim. Thus, passage of time has put the necessary information to evaluate the claim out of reach. Since appellate court is unable to evaluate defendant's substantive claim, he has been prejudiced by the appellate delay, so defendant is entitled to a new trial. People v. McGlotten, 166 P.3d 182 (Colo. App. 2007).

When conducting speedy trial analysis, delay caused by appointed counsel is attributable to defendant, not the state. Considering the totality of the circumstances, defendant did not carry burden of proving a constitutional violation. People v. Glaser, 250 P.3d 632 (Colo. App. 2010).

A six-month and seven-day sentencing delay is not presumptively prejudicial since it is substantially less than a year. The delay was not "unreasonable" under Crim. P. 32(b) because the trial court imposed the delay for a legally justifiable reason, namely, to further the general assembly's intent to require trial courts to sentence recidivist offenders within an aggravated range. Trial court's sentencing delay did not violate defendant's claimed constitutional right to speedy sentencing because defendant failed to demonstrate presumptive prejudice. People v. Sandoval-Candelaria, 2014 CO 21, 321 P.3d 487.

B. Right to Public Trial.

Accused in criminal case has right to public trial. Anderson v. People, 176 Colo. 224, 490 P.2d 47 (1971), cert. denied, 405 U.S. 1042, 92 S. Ct. 1376, 31 L. Ed. 2d 583 (1972).

The term "public trial" contemplated by the constitution is a trial which is not secret, one that the public is free to attend. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970).

It is a relative term and its meaning depends largely on the circumstances of each particular case. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970).

When reasonable portion of public is suffered to attend, without partiality or favoritism, the requirement of a public trial is fairly observed. Hampton v. People, 171 Colo. 153, 465 P.2d 394 (1970).

Right to public trial is not absolute, for in some instances, the right to a public trial may be subordinated to the higher right and duty of the court to insure that the defendant receives a fair trial. Anderson v. People, 176 Colo. 224, 490 P.2d 47 (1971), cert. denied, 405 U.S. 1042, 42 S. Ct. 1376, 31 L. Ed. 2d 583 (1972).

Public right to be informed is superior to defendant's right to privacy. The initial determination that there exists probable cause to believe the named defendant has committed a crime charged creates in the public a right superior to that of the individual and by which the privilege or right of privacy is destroyed. At that point in time the public has a right to know and the press to disclose such facts relative to the pending criminal case as may reasonably be expected to be relevant and material thereto. Lincoln v. Denver Post, 31 Colo. App. 283, 501 P.2d 152 (1972).

Trial court did not plainly err by granting prosecution's request for a continuance. Although a delay of over a year while defendant was incarcerated did prejudice the defendant, other factors weighed in granting the continuance favored the prosecution, so defendant's constitutional speedy trial right was not violated. People v. Jompp, 2 018 COA 1 2 8, 440 P.3d 1166.

But this does not absolve press of responsibility to report fairly and accurately and to avoid prejudicing the defendant's right to a fair trial. Lincoln v. Denver Post, 31 Colo. App. 283, 501 P.2d 152 (1972).

The right of privacy, if any, conferred upon plaintiff by statute dealing with use and preservation of child welfare records ceased to exist when she became criminal defendant charged with a crime directly connected with that statute and this right of privacy was lost without regard to the outcome of the charges. Lincoln v. Denver Post, 31 Colo. App. 283, 501 P.2d 152 (1972).

Right to public trial includes that stage of proceedings which is devoted to selection of jury. Anderson v. People, 176 Colo. 224, 490 P.2d 47 (1971), cert. denied, 405 U.S. 1042, 92 S. Ct. 1376, 31 L. Ed. 2d 583 (1972).

Court's procedure of calling prospective jurors by their juror number or seat number did not violate defendant's right to presumption of innocence or right to a public trial. Since court indicated to the jury that the procedure was "his policy" to respect the jurors' privacy, the question of defendant's guilt or innocence was not undermined. Additionally, because court's procedure allowed defendant access to the jurors' names and other information, the process was not an "anonymous jury" requiring the court to demonstrate good cause. Perez v. People, 2013 CO 22, 302 P.3d 222; Rizo v. People, 2013 CO 23, 302 P.3d 232; Robles v. People, 2013 CO 24, 302 P.3d 229.

Defendant waived his right to a public trial by failing to object in trial court to known closure of the courtroom during jury selection. People v. Stackhouse, 2 01 2 COA 202, 411 P.3d 708, aff'd, 2015 CO 48, 386 P.3d 440.

Limited exclusion of public during time jury was chosen held not reversible error. Where the defendant is not the victim of any unjust prosecution, the limited exclusion of the general public at his trial during the time that a jury is chosen cannot be elevated to the constitutional plateau of reversible error to escape the jury's verdict. Anderson v. People, 176 Colo. 224, 490 P.2d 47 (1971), cert. denied, 405 U.S. 1042, 92 S. Ct. 1376, 31 L. Ed. 2d 583 (1972).

Exclusion must be limited to particularly justified class. The constitution precludes the general indiscriminate exclusion of the public from the trial of a criminal case over the objection of the defendant and limits the trial judge to the exclusion of those persons or classes of persons only whose particular exclusion is justified by lack of space or for reasons particularly applicable to them. Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965).

Court may not exclude general public from trial of sexual offense. Whatever may have been the view in more formally modest age, attitude of the present day toward matters of sex precludes a determination that all members of the public, the mature as well as the immature and impressionable may reasonably be excluded from the trial of a sexual offense upon ground of public morals. Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965).

But exclusion during testimony of prosecuting witness is permissible. In a case, such as a prosecution for statutory rape, in which the prosecuting witness is of such tender years as to be seriously embarrassed in giving her testimony by the presence of spectators not concerned with the trial, the trial judge may during that witness's testimony exclude all members of the public not directly concerned with the trial. Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965).

Trial court did not violate defendant's right to a public trial by allowing only witnesses and the jury and not members of the gallery to see video recordings and still images. The public trial right is concerned with the public's presence during or access to the trial. It does not extend to the presentation of evidence. People v. Robles-Sierra, 2 018 COA 2 8, __ P.3d __.

Defendant need not show specific prejudice by denial of public trial. It is not necessary for the defendant to show that he was in fact prejudiced by the action of the trial judge in denying a public trial. If that action violated a constitutional right, such violation necessarily implies prejudice, and more than that need not appear. It would be difficult for a defendant to point to any definite, personal injury. To require him to do so would impair or destroy the safeguard. Thompson v. People, 156 Colo. 416, 399 P.2d 776 (1965).

The right to a public trial, guaranteed by both the federal and state constitutions, is one that is so fundamental to a fair hearing that, if the right is violated, a defendant is entitled to appropriate relief, even if no prejudice can be shown to have resulted from such violation; however, a court may, under justifiable circumstances, bar spectators during a portion of the trial, and such action will not amount to a denial of the right. People v. Thomas, 832 P.2d 990 (Colo. App. 1991).

Defendant's right to a public trial violated by complete closure of courtroom during testimony of two undercover officers. People v. Hassen, 2015 CO 49, 351 P.3d 423.

By closing courtroom to all spectators under 18 years of age for a significant portion of the trial, the court committed structural error. People in Interest of G.B., 2 018 COA 77, 433 P.3d 138.

Defendant's right to a public trial violated by partial closure of courtroom, which excluded defendant's family member during girlfriend's testimony, when court did not make any findings to justify the closure. People v. Irving, 2 019 COA 1, 469 P.3d 486.

A defendant's right to a public trial is not violated when closure of the courtroom at issue is trivial. Under the triviality standard, the court must look to the closure at issue and consider whether it implicated the protections and values of the public trial right. The court must look to the totality of the circumstances surrounding the closure. Factors to be considered include the duration of the closure; the substance of the proceedings that occurred during the closure; whether the proceedings were later memorialized in open court or placed on the record; whether the closure was intentional; and whether the closure was total or partial. But no one factor is determinative and other considerations may be relevant in determining whether a courtroom closure is trivial. People v. Lujan, 2020 CO 26, 461 P.3d 494.

Courtroom closure was trivial and did not undermine the values advanced by defendant's right to a public trial because the closure was brief in duration; involved the trial court rereading a limiting instruction that it had previously read twice in open court; the exchange between the court and the jury during the closure was transcribed by the court reporter; and the closure occurred after the court gave the parties an opportunity to discuss the instruction and lodge objections to it in open court. People v. Lujan, 2020 CO 26, 461 P.3d 494.

Defendant's right to a public trial was violated by partial closure of the courtroom through exclusion of defendant's parents during the defendant's children's testimony. Before granting a request for partial closure, court must consider factors in Waller v. Georgia, 467 U.S. 39 (1984): (1) The party seeking to close the proceeding must advance an overriding interest that is likely to be prejudiced; (2) the closure must be no broader than necessary to protect that interest; (3) the trial court must consider reasonable alternatives to closing the proceeding; and (4) the trail court must make findings adequate to support the closure. With respect to the third factor, trial courts are obligated to take every reasonable measure to accommodate public attendance. Court declines to consider whether the test for partial closure in (1) should be "overriding interest" or "substantial reason" in this context. People v. Jones, 2020 CO 45, 464 P.3d 735.

A defendant's right to a public trial was not violated where the trial court temporarily excluded certain members of the public from the trial proceedings. The court's interest in protecting witnesses from intimidation and in maintaining orderliness and fairness of proceedings outweighed the defendant's interest in a public trial. People v. Angel, 790 P.2d 844 (Colo. App. 1989).

Defendant's right to public trial not violated where courtroom was only partially closed to the public; the court merely limited the flow of traffic in and out of the courtroom; no member of the public was excluded as long as he or she was seated before testimony began; an officer announced the court's decision to all those outside the courtroom, providing ample opportunity for spectators to make arrangements to attend; and the restriction was only in place for a short part of defendant's trial. People v. Whitman, 205 P.3d 371 (Colo. App. 2007).

Upon remand to determine whether locking courtroom was a denial of a public trial, court's findings should determine the length of the time that the doors to the courtroom were locked and the nature of the proceedings that took place during that time; how many, if any, members of the public were excluded from viewing the trial; the nature of any orders given by the court respecting the locking of the door and whether any such orders were disobeyed; whether any members of the public were admitted by the guards while the doors were locked and, if so, what criteria were used in admitting certain members of the public and excluding others; and any other fact the court considers to be germane to establishing the nature of the actions taken by the guards with reference to admitting persons to the courtroom during defendant's trial. People v. Thomas, 832 P.2d 990 (Colo. App. 1991).

C. Right to Speedy Appeal.

There is no constitutional right to a speedy appeal, but rather a due process fairness right on appeal. Hoang v. People, 2014 CO 27, 323 P.3d 780, cert. denied, 574 U.S. 894, 135 S. Ct. 233, 190 L. Ed. 2d 175 (2014).

A court must consider the following four factors in determining whether defendant's right to speedy appeal was violated. First, the length of the delay, second, the reason for the delay, third, the defendant's assertion of the right, and, finally, any prejudice to defendant. The first three factors in this case benefit the defendant, but, since there is no showing of prejudice, there is no violation of defendant's right to speedy appeal. People v. Whittiker, 181 P.3d 264 (Colo. App. 2006).

The delay, in this case, has not impaired the defendant's ability to present his appeal. People v. Whittiker, 181 P.3d 264 (Colo. App. 2006).

There was no violation of the right to a meaningful appeal. The transcripts were sufficiently complete and reliable to enable an intelligent review of defendant's substantive rights. People v. Whittiker, 181 P.3d 264 (Colo. App. 2006); People v. Carmichael, 179 P.3d 47 (Colo. App. 2007), rev'd on other grounds, 206 P.3d 800 (Colo. 2009).

Although the first three factors all weighed in the defendant's favor, defendant did not demonstrate any prejudice in the delayed appeal, so there was no violation. Hoang v. People, 2014 CO 27, 323 P.3d 780, cert. denied, 574 U.S. 894, 135 S. Ct. 233, 190 L. Ed. 2d 175 (2014).

Defendant's claim that the delay in his appeal caused him physical and mental harm while incarcerated did not constitute prejudice when the appellate court determined defendant had been properly incarcerated. People v. Foster, 2 013 COA 85, 364 P.3d 1149.

A defendant's criminal appeal can proceed after the defendant is found legally incompetent after the notice of appeal is filed as long as the defendant is permitted to raise in a postconviction motion any matter not raised in the direct appeal due to the defendant's incompetence. People v. Liggett, 2 018 COA 94M, __ P.3d __.

VI. RIGHT TO IMPARTIAL JURY; VENUE.

Law reviews. For note, "Waiver of Jury Trial in Felony C ases-- C olorado Law", see 23 Rocky Mt. L. Rev. 334 (1 9 51). For note, "The Right in Colorado of One Accused of a Felony to Waive Jury Without the Consent of the State", see 24 Rocky Mt. L. Rev. 9 8 (1951). For note, "The Criminal Jury and Misconduct in Colorado", see 36 U. Colo. L. Rev. 245 (1964). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to fair trials and impartial juries, see 15 Colo. Law. 1592 and 1593 (1986). For article, "Criminal Jury Selection After People v. Novotny", see 44 Colo. Law. 41 (Feb. 2015). For article, "Uncovering Juror Racial Bias", see 96 Denv. L. Rev. 309 (2019).

A. Right to Impartial Jury.

This section guarantees right to trial by impartial jury to the accused in all criminal prosecutions. Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962).

Where a jury trial is granted, the right to a fair and impartial jury is a constitutional right which can never be abrogated. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971).

It is fundamental that a defendant is entitled to a fair trial by an impartial jury. Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972).

Numerous formal irregularities, each of which in itself might be deemed harmless, may in the aggregate show the absence of a fair trial. Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962); Howard-Walker v. People, 2019 CO 69, 443 P.3d 1007.

Right to fair and impartial jury is all-inclusive; it embraces every class and type of person. Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962).

Right to fair trial may require limitations on exercise of other constitutional rights. The interest of an accused, whose life and liberty are in jeopardy, to a fair trial by impartial jury is paramount and may require, depending on circumstances of case, limitations upon exercise of right of free speech and of press. Stapleton v. District Court, 179 Colo. 187, 499 P.2d 310 (1972).

Constitutional guarantees are not always absolute and full exercise thereof is not always possible. Stapleton v. District Court, 179 Colo. 187, 499 P.2d 310 (1972).

The constitutional guarantee of a trial by a panel of impartial jurors must be considered in light of the concomitant right of the public and press to the full protections of the first amendment. People v. Botham, 629 P.2d 589 (Colo. 1981).

Petty offense may be constitutionally tried to court without jury. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1703, 26 L. Ed. 2d 69 (1970).

Although the proceeding against petitioner is criminal in nature by reason of the imposition of penal sanctions, the offense charged, the unlawful use of a traffic lane by a motor vehicle, is a petty offense and not a criminal offense which would entitle petitioner to a jury trial as comprehended by the constitution of Colorado. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1703, 26 L. Ed. 2d 69 (1970).

There is no federal or state constitutional right to a jury trial in cases involving petty offenses. Hardamon v. Municipal Court, 178 Colo. 271, 497 P.2d 1000 (1972).

But such right could be granted by general assembly. Either the general assembly, on a statewide basis, or the legislative body of a home rule city, within its territorial limits, could grant a jury trial in petty offense cases. Hardamon v. Municipal Court, 178 Colo. 271, 497 P.2d 1000 (1972).

"Petty offense" defined. In the interests of the orderly administration of justice and in the absence of legislative mandate by statute or charter to the contrary, petty offenses under the constitution, general laws, charters and ordinances, are those crimes or offenses the punishment for which do not exceed in extent imprisonment for more than six months or a fine of more than $500, or a combination of imprisonment and fine within such limits. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1703, 26 L. Ed. 2d 69 (1970).

Contempt has not been classified as either a "petty" or "serious" offense, so the determinant of whether a particular contempt charge is sufficiently serious to require a jury trial is the severity of the fine actually imposed upon the contemnor. People v. Shell, 148 P.3d 162 (Colo. 2006).

Right to jury trial is inapplicable in administrative hearing to determine whether a driver's license should be revoked for accumulated traffic violations. Campbell v. State, 176 Colo. 202, 491 P.2d 1385 (1971).

Defendant may waive his right to trial by jury, and on a plea of not guilty be tried by the court, and, if found guilty, a valid sentence may be pronounced thereon. Munsell v. People, 122 Colo. 420, 222 P.2d 615 (1950).

Guilty plea operates as waiver of a defendant's constitutional right to a jury trial, but coercion deprives it of its effect as a waiver. Von Pickrell v. People, 163 Colo. 591, 431 P.2d 1003 (1967).

The right to trial by jury comprehends a fair verdict, free from the influence or poison of evidence which should never have been admitted, and the admission of which arouses passions and prejudices which tend to destroy the fairness and impartiality of the jury. Oaks v. People, 150 Colo. 64, 371 P.2d 443 (1962).

The juror's oath prescribes his duty. By the obligation thus imposed, he is to well and truly try the issues joined and a true verdict render according to the law and the evidence. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

It is sufficient if the juror can lay aside his opinion or extrajudicial information received through pretrial publicity so that he can render a verdict based on the evidence presented in court. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

Trial court to determine competence of juror. A juror's assurances that he is equal to the task cannot be dispositive, and it is the duty of the trial court to determine the competence and credibility of the juror. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

The fact that jurors have read newspaper articles relating to a case does not disqualify them as jurors. This is true even though a juror may have had a preconceived notion as to the guilt or innocence of the accused. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

Test as to juror's impartiality after pretrial publicity. The test is whether the nature and strength of the opinion formed or of the information learned from pretrial publicity are such as necessarily raise the presumption of partiality or of the inability of the potential juror to block out the information from his consideration. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

Factors to be considered. A juror's exposure to highly inflammatory information that is inadmissible at trial can, in some cases, be sufficient to disbelieve a juror's assurances that he can lay it aside. However, normally other factors must also be considered such as the detail of the information, the strength of the juror's recollection, the length of time since his exposure to the information, the juror's willingness to exclude the evidence from his consideration, the juror's opinion as to its relevance, the confidence the juror expresses in the news source, and, finally, the atmosphere that will pervade the trial. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

It is counsel's duty to make diligent inquiry into the existence of potential prejudice that might exist in the jurors' minds by reason of defendant's racial heritage. Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972); People v. Baker, 924 P.2d 1186 (Colo. App. 1996).

Thus, voir dire inquiry is permissible into matters of racial prejudice in the interest of obtaining a fair and impartial jury. Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972).

Defendant who failed to exhaust his or her peremptory challenges has no claim that his or her substantial right to the use of peremptory challenges was violated. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Disqualification of a juror for inability to join in a verdict imposing the death penalty in a proper case is not error where the jury has the duty to determine the defendant's guilt or innocence and his punishment if he is found guilty. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

A constitutional right to a trial by a jury of his peers is not denied a defendant because twenty-nine and three-tenths percent of the jury panel were excluded on challenge for cause because of their unwillingness to consider under any circumstances the imposition of the death penalty. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

But exclusion for opposition to capital punishment vitiates death penalty. A death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. This decision does not govern where the jury recommended a sentence of life imprisonment. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

And denies representative jury and equal protection. Belief against capital punishment on the part of jurors who are vested with a dichotomy of functions, the determination of the issue of guilt, and the degree of punishment, cannot be allowed to disqualify a substantial part of the venire when it is not established that the views of the persons so disqualified will preclude them from making a fair determination on the issue of guilt, aside from the issue of punishment. Such disqualification prevents the jury in its function of determining the issue of guilt from being fairly representative of the community, and thus violates equal protection of the laws. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970).

Death qualified jury not denial of impartial jury. Death qualified juries are not more prone to convict than to acquit, and do not deny a defendant his right to an impartial jury. People v. Manier, 184 Colo. 44, 518 P.2d 811 (1974); People v. Mackey, 185 Colo. 24, 521 P.2d 910 (1974); People v. Casey, 185 Colo. 58, 521 P.2d 1250 (1974); People v. Rodriguez, 786 P.2d 472 (Colo. App. 1989).

Peremptory challenge after juror accepted. A trial court has the right, upon the showing of good cause, to authorize a defendant to peremptorily challenge a juror even after he has been accepted. Simms v. People, 174 Colo. 85, 482 P.2d 974 (1971).

Trial court may conduct challenges for cause in open court. While the better practice is to hear challenges for cause outside the prospective jurors' presence as espoused by the American bar association, a trial court retains discretion to conduct challenges in open court. However, the court may abuse its discretion depending upon the reason for the challenge, the overall tenor or contentiousness of the voir dire examination, and any other circumstances pertinent to the issue. People v. Flockhart, 2013 CO 42, 304 P.3d 227.

Recess did not prejudice jury. Where defense counsel became ill during the course of the trial resulting in a recess of over a week, a situation was not created where the jury was prejudiced by the recess. Valdez v. District Court, 171 Colo. 436, 467 P.2d 825 (1970).

Court did not err by allowing jury to deliberate past midnight because a juror had travel plans for the next day. People v. Baird, 66 P.3d 183 (Colo. App. 2002).

Instructing jury that it may discuss case prior to close of evidence constitutes non-constitutional trial error to be reviewed under the harmless error standard. Under harmless error standard, reversal is required only if error substantially influenced the verdict or affected the fairness of the trial proceedings. People v. Flockhart, 2013 CO 42, 304 P.3d 227.

Denial of trial by impartial jury not established. Where the record in a first-degree murder case contained only excerpts from the voir dire examination, referring solely to those jurors excused for cause, who stated in effect that under no circumstances would they impose a death sentence, and nothing was brought before the supreme court to support a claim that the jury was not impartial, the defendant did not establish a violation of his rights under this section. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

Coercion of juror violated section. The provision of this section as to a trial by an impartial jury was violated where 11 jurors, instead of 12, fixed the death penalty upon defendant, the twelfth juror having been coerced to agree. Such juror's sworn statement can be admitted to show procurement of his assent by threats. Wharton v. People, 104 Colo. 260, 90 P.2d 615 (1939).

Court may not act in a manner that could coerce a verdict by causing juror to surrender honest convictions as to the weight and effect of the evidence for the mere purpose of returning a verdict. Denial of mistrial was improper because court created unacceptably high risk of coerced verdict by threatening previously absent juror with contempt sanctions and admonishing the juror on several occasions before deliberations. People v. Dahl, 160 P.3d 301 (Colo. App. 2007).

Separate hearings of the issues raised by pleas of insanity and not guilty, in a criminal case, do not violate the constitutional right to a speedy public trial by an impartial jury, or of due process of law. Leick v. People, 136 Colo. 535, 322 P.2d 674, cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 366 (1958).

A bifurcated trial on the guilt issue and the punishment issue in a first-degree murder case is neither statutorily permitted nor constitutionally required. Jorgensen v. People, 178 Colo. 8, 495 P.2d 1130 (1972).

Where questions by district attorney convince jury that defendant has been involved in other criminal offenses besides the one for which he is being tried, defendant's right to a fair trial is vitiated in a substantive manner. Edmisten v. People, 176 Colo. 262, 490 P.2d 58 (1971).

Mentioning a codefendant's guilty plea in the court's instruction when codefendant refused to testify is error subject to constitutional error challenge. The court's failure to give a limiting instruction and giving improper emphasis to the codefendant's guilty plea makes it a reasonable possibility that the court's error might have contributed to the conviction especially considering the jury's question during deliberations regarding whether it could consider codefendant's refusal to testify. People v. Rios, 2 014 COA 90, 338 P.3d 495.

The right to an impartial jury includes the right to a jury drawn from a representative or fair cross-section of the community. Fields v. People, 732 P.2d 1145 (Colo. 1987).

The right to an impartial jury does not require counsel be granted unlimited voir dire examination. People v. O'Neill, 803 P.2d 164 (Colo. 1990).

The right to a jury comprising a fair cross-section of the community does not require that each petit jury mirror the demographic composition of the community or that any particular jury actually contain members of the defendant's own group. Fields v. People, 732 P.2d 1145 (Colo. 1987).

Defense counsel's alleged failure to investigate a fair cross-section claim or equal protection claim does not constitute error so serious that counsel was not functioning as the counsel guaranteed by the sixth amendment. People v. Luong, 2 016 COA 13M, 378 P.3d 843.

Although a defendant is entitled to a trial by a fair and impartial jury, he is not entitled to any particular juror. People v. Johnson, 757 P.2d 1098 (Colo. App. 1988).

The presumption exists that the prosecutor has exercised peremptory challenges on constitutionally permissible grounds, but said presumption may be rebutted by the demonstration of a prima facie case of discrimination. Fields v. People, 732 P.2d 1145 (Colo. 1987).

In evaluating allegations of discriminatory jury selection, the court employs a three-step process. First, the defendant must make a prima facie showing that the people excluded jurors based solely on their race. Second, if the defendant makes this showing, then the burden shifts to the people to articulate a race-neutral reason for excluding the jurors in question. This burden requires the people to provide only a facially race-neutral reason, not an explanation that is persuasive or even plausible. Third, if the people provide a race-neutral reason, the trial court must consider all relevant circumstances to determine whether the defendant has proved purposeful racial discrimination. Valdez v. People, 966 P. 2 d 587 ( C olo. 1998); People v. Hinojos-Mendoza, 140 P.3d 30 ( C olo. App. 2 005), aff'd in part and rev'd in part on other grounds, 169 P.3d 662 (Colo. 2007); People v. Morales, 2014 COA 129, 356 P.3d 972.

There is a three-step process for evaluating claims of racial discrimination in jury selection. To establish a prima facie showing, the defendant: (1) Must demonstrate that the prosecution struck a member of a cognizable racial group from the jury; (2) can rely on the fact that peremptory challenges constitute a jury selection practice that permits those who are of a mind to discriminate to discriminate; and (3) must show that the totality of the relevant facts gives rise to an inference of purposeful discrimination. People v. Hogan, 114 P.3d 42 (Colo. App. 2004).

Relevant factors in determining whether an inference of intentional racial discrimination exists include the disproportionate effect of peremptory strikes, a pattern of strikes against jurors of a particular race, and the prosecutor's questions and statements during voir dire. Defendant failed to demonstrate a prima facie case of racial discrimination. People v. Hogan, 114 P.3d 42 (Colo. App. 2004).

Test for prima facie case of discrimination in jury selection includes: (1) That a distinctive and cognizable group exists; (2) that the group is systematically excluded from the jury selection process; and (3) that the resulting jury pool fails to be reasonably representative of the community. People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978).

A prima facie case of discrimination in jury selection is demonstrated by showing that the persons excluded are members of a cognizable group and that, considering all the circumstances of the case, there is a strong likelihood that the jurors were excused solely because of their membership in the group. Fields v. People, 732 P.2d 1145 (Colo. 1987).

Failure to voir dire can demonstrate intent to exclude jurors on the basis of race. Applying non-racial criteria for peremptory challenge differently to different jurors can also indicate a peremptory challenge used to discriminate because of race. People v. Gabler, 958 P.2d 505 (Colo. App. 1997).

Whether the defendant has established a prima facie case of discrimination in jury selection is moot where the prosecution explained its use of peremptory challenges before the trial court determined whether an inference of systematic exclusion existed. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993).

Upon the court's determination that a prima facie case of discrimination has been proven, the burden shifts to the state to rebut the inference that jurors were excluded solely because of group membership by statements by the prosecutor stating reasons for excluding such jurors that are unrelated to membership in a cognizable group and reasonably related to the particular case. Fields v. People, 732 P.2d 1145 (Colo. 1987).

Question of whether a party has established a prima facie case of racial discrimination during the jury selection process is a matter of law to which an appellate court should apply a de novo standard of review. Valdez v. People, 966 P.2d 587 (Colo. 1998).

Once the prosecution has articulated a race-neutral reason for excluding the juror in question, the trial court must consider the plausibility of the prosecutor's race-neutral explanation. The court may consider a number of factors including the prosecutor's demeanor, how reasonable the explanations are, and whether the proffered rationale has some basis in accepted trial strategy. People v. Collins, 187 P.3d 1178 (Colo. App. 2008).

Because reviewing court is not as well positioned as trial court to make credibility determinations, the trial court's determination as to whether the proponent has exercised purposeful racial discrimination is reviewed only for clear error. People v. Robinson, 187 P.3d 1166 (Colo. App. 2008); People v. Collins, 187 P.3d 1178 (Colo. App. 2008).

While a trial court should provide defense counsel with an opportunity to rebut the prosecutor's stated reasons before ruling on a Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 171 2 , 90 L. Ed. 2 d 69 (1986), challenge, reviewing court will not reverse trial court's ruling unless such a denial prejudices the defendant. People v. Friend, 2014 COA 123M, 431 P.3d 614, aff'd in part and rev'd in part on other grounds, 2018 CO 90, 429 P.3d 1191.

Prosecutor's use of peremptory challenge held to be purposeful discrimination where at least three of prosecutor's race-neutral reasons were refuted by the record, the trial court failed to specifically credit the other reasons given, and the prosecutor's failure to inquire into the facts of one of the articulated reasons suggested pretext and undermined the persuasiveness of the underlying concern. People v. Collins, 187 P.3d 1178 (Colo. App. 2008).

Striking a single potential juror for a discriminatory reason violates the equal protection clause even where jurors of the same race are seated. People v. Collins, 187 P.3d 1178 (Colo. App. 2008).

Where prosecutor offered explanation of peremptory challenge of the only remaining member of defendant's race from jury panel before defendant was afforded the opportunity to make out a prima facie case of discrimination, defendant's burden of proof is moot and court must consider whether the prosecution espoused a sufficient race-neutral rationale for striking juror. People v. Arrington, 843 P.2d 62 (Colo. App. 1992).

Defendant's right to equal protection was violated where prosecutor's peremptory challenge against the only remaining member of defendant's race was founded upon impermissibly race specific reasons. People v. Arrington, 843 P.2d 62 (Colo. App. 1992).

A Batson violation is a structural error requiring reversal. People v. Wilson, 2 01 2 COA 163M, 411 P.3d 11, rev'd on other grounds, 2015 CO 54M, 351 P.3d 1126.

An inadequate Batson inquiry occurs when a trial court's findings are insufficient to determine whether the opponent of a peremptory strike has proved the proponent used the strike to purposefully discriminate against a prospective juror because of their race. People v. Rodriguez, 2015 CO 55, 351 P.3d 423.

The proper remedy for an inadequate inquiry into a Batson challenge is to remand the case back to the trial court with directions to conduct the three-part Batson analysis and make the required factual findings. People v. Rodriguez, 2015 CO 55, 351 P.3d 423.

Prosecutor's error in recollection does not compel a finding of purposeful discrimination in violation of Batson. Rather, a Batson analysis requires the trial court to assess the credibility of the proponent of the peremptory strike and determine whether to believe the race-neutral explanation. Unless the opponent of the strike can prove purposeful discrimination, the court should deny the Batson challenge. On appeal, a reviewing court should defer to the trial court's credibility and reverse only for clear error. People v. Wilson, 2015 CO 54M, 351 P.3d 1126.

A defendant and an excused prospective juror need not be of the same cognizable racial group for defendant to be able to raise a Batson challenge. People v. Friend, 2 014 COA 1 2 3M, 431 P.3d 614, aff'd in part and rev'd in part on other grounds, 2018 CO 90, 429 P.3d 1191.

Spanish-surnamed persons are a cognizable group for purposes of determining whether a defendant has been denied the opportunity for a jury composed of a fair cross-section of the community, and for equal protection analysis. Fields v. People, 732 P.2d 1145 (Colo. 1987).

A prosecutor's purposeful, discriminatory, and systematic exercise of peremptory challenges in a given case to exclude from the jury panel Spanish-surnamed persons solely on the basis of presumed group characteristics violates this constitutional provision. Fields v. People, 732 P.2d 1145 (Colo. 1987).

A waiver of a peremptory challenge, without more, does not support a prima facie case of discrimination under Batson. Although waiver of a peremptory challenge, without more, is insufficient to establish a prima facie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 171 2 , 90 L. Ed. 2 d 69 (1986), waiver, accompanied by something more, can support a prima facie case. People v. Lucero, 2014 COA 53, 353 P.3d 874.

The distinction between the "action" of exercising a peremptory challenge and the "inaction" of waiving a peremptory challenge is an artificial construct that does not support a constitutional distinction. Batson and its progeny preclude the use of peremptory challenges to "exclude" potential jurors based solely on the jurors' race, gender, or ethnicity. People v. Lucero, 2 014 COA 53, 353 P.3d 874.

If even one of the prosecutor's explanations of the bases for the peremptory challenges is insufficient, the trial court should rule that the exclusion violates both the defendant's and the prospective juror's equal protection rights. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993).

A defendant's objection to the prosecutor's peremptory challenge must be made before the venire is dismissed and the trial begins since the procedures for proving such a claim include requiring the prosecutor to state neutral reasons for striking the potential juror. Therefore, defendant was precluded from making an objection after the venire was dismissed, the jury panel had been sworn, and the trial had begun. People v. Mendoza, 860 P.2d 1370 (Colo. App. 1993).

A trial court cannot provide its own race-neutral reasons to justify the prosecution's use of a peremptory challenge. People v. Ojeda, 2 019 COA 137M, __ P.3d __.

Error, if any, in granting prosecution's challenge for cause to prospective juror was harmless where prosecution did not use all its peremptory challenges. People v. Orth, 121 P.3d 256 (Colo. App. 2005).

Test for excluding a juror is whether the juror would render a fair and impartial verdict based on evidence presented at trial and on instructions given by the court. People v. Abbott, 690 P.2d 1263 (Colo. 1984).

Rebuttable presumption that defendant's right to a fair trial has been prejudiced arises when, over objection of defendant, a regular juror who has become unable to continue deliberations is substituted with a discharged alternate juror. People v. Burnette, 775 P.2d 583 (Colo. 1989); People v. Patterson, 832 P.2d 1083 (Colo. App. 1992).

Such presumption arises independent of the question of the authority by which the substitution is made. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992).

Thus, even where defendant contents to the fact of the juror substitution, the defendant does not waive the right to challenge the procedure followed in accomplishing the juror substitution and thereby waive the right to a fair and impartial jury. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992).

Presumption of prejudice not rebutted where, even though defendant consented to the fact of a juror substitution, he was not present when the actual substitution was made and neither he nor his counsel were aware of the manner in which the substitution was accomplished until after deliberations had been concluded and where trial court: failed to question regular jurors prior to substitution regarding their willingness and ability to start deliberations anew with an alternate juror; never instructed reconstituted jury to start deliberations anew; failed to question alternate juror about his ability to serve or as to whether he had received any extraneous information or formed any opinions while discharged until after the deliberative process; and where trial court's instruction may have sent message to jurors that their deliberations should continue from the point at which they had been interrupted. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992).

The length of time a jury deliberates prior to juror substitution may influence the issue of whether defendant's right to a fair trial has been prejudiced; the longer the delay in inserting the substitute juror, the stronger the presumption of prejudice. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992).

The promptness of the juror substitution cannot, by itself, defeat the presumption that defendant's right to a fair trial has been prejudiced by substitution of a regular juror who has become unable to continue deliberations with a discharged alternate juror; rather, promptness of substitution is one of several factors important to such determination. People v. Patterson, 832 P.2d 1083 (Colo. App. 1992).

If a trial court interrupts deliberations of a jury and suspends the jury's fact finding functions to investigate allegations of juror misconduct, the court's inquiry must not intrude into the deliberative process. In the exercise of judicial discretion, before a juror is dismissed from a deliberating jury due to an allegation of juror misconduct, the court must make findings supporting a conclusion that the allegedly offending juror will not follow the court's instructions. Garcia v. People, 997 P.2d 1 (Colo. 2000).

Jury to be selected from representative cross-section of community. The constitutional guarantees of due process and trial by jury require that juries be selected from a representative cross-section of the community. People v. Moody, 630 P.2d 74 (Colo. 1981).

But each jury need not reflect exact ethnic proportion. There is no constitutional requirement that each petit jury reflect the exact ethnic proportion of the population to which the defendant belongs. People v. Moody, 630 P.2d 74 (Colo. 1981).

Prosecutor may not exercise peremptory jury challenge based solely on gender. Cause remanded for further consideration of gender discrimination question since trial court made no finding on claim. People v. Gandy, 878 P.2d 68 (Colo. App. 1994).

The term "district" is intended to express a concept of local vicinity. Wafai v. People, 750 P.2d 37 (Colo. 1988).

Residents of a particular urban area do not constitute a distinctive group for purposes of trial by a jury fairly representing a cross-section of the community. People v. Rubanowitz, 688 P.2d 231 (Colo. 1984).

Selection of jurors from a different county than the county of venue preserved defendant's right to a fair trial. People v. Wafai, 713 P.2d 1354 (Colo. App. 1985), aff'd, 750 P.2d 37 (Colo. 1988).

Municipal court jury trials. The term "district", as applicable to a municipal court prosecution for an ordinance violation in a multi-county municipality, refers to the area served by the municipal court which means the territorial boundaries of the city. City of Aurora v. Rhodes, 689 P.2d 603 (Colo. 1984).

Term "district", within the meaning of this section which gives an accused the right to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, refers to a governmental area district from a county and includes a judicial district. People v. Taylor, 732 P.2d 1172 (Colo. 1987).

Strong aversion to particular crime not automatic disqualification of prospective juror. A strong aversion to a particular crime, such as child abuse, does not automatically disqualify a prospective juror, where the juror states that she can, and will, set aside her adverse feelings and decide the case based upon the evidence and the law, and the juror's statement is not otherwise impugned by the record. People v. Taggart, 621 P.2d 1375 (Colo. 1981).

A trial court should do one of three things if a prospective juror indicates an unwillingness to apply the law: (1) Dismiss the juror for cause; ( 2 ) conduct rehabilitative questioning following up on the juror's concerning statements before denying the challenge for cause; or (3) make findings on the record explaining why the juror's statements indicating an unwillingness or inability to follow the law should be disregarded in light of other seemingly inconsistent statements. People v. Marciano, 2 014 COA 92M, 411 P.3d 831.

No abuse of discretion when court denies a challenge for cause after the challenged juror has committed to put aside his or her biases and has expressed that he or she can be fair. People v. Shover, 217 P.3d 901 (Colo. App. 2009).

Court did not abuse its discretion in deciding not to excuse two jurors for cause. Although each juror expressed some reservations about the burden of proof, nothing in their statements indicated that they did not understand the burden of proof or would not follow the court's instruction regarding the burden of proof. People v. Rabes, 2 58 P.3d 937 (Colo. App. 2 010); People v. Taylor, 2012 COA 91, 296 P.3d 317.

A prospective juror's silence in response to rehabilitative questioning constitutes evidence sufficient to support a trial court's conclusion that the juror has been rehabilitated when, in light of the totality of the circumstances, the context of the silence indicates that the juror will render an impartial verdict according to the law and evidence submitted to the jury at trial. The context surrounding the prospective juror's silence supported the trial court's decision that the juror was rehabilitated. People v. Clemens, 2017 CO 89, 401 P.3d 525.

Same jury requirement under habitual criminal statute upheld. Under the habitual-criminal statute, the same jury which returns a guilty verdict on the underlying offense must then decide whether the defendant committed the necessary prior crimes to be adjudged an habitual criminal. Despite this "same-jury" requirement in § 16-13-103, the defendant can have an impartial jury during the habitual-criminal sentencing hearing, as guaranteed by this section and § 25 of this article. People ex rel. Faulk v. District Court ex rel. County of Fremont, 673 P.2d 998 (Colo. 1983).

Decision of trial judge to deny challenge for cause will not be disturbed on review in the absence of a manifest abuse of discretion. People v. Taggart, 621 P.2d 1375 (Colo. 1981); People v. Abbott, 690 P.2d 1263 (Colo. 1984).

Trial court's decision to excuse a juror during trial will not be disturbed absent a gross abuse of discretion. People v. Abbott, 690 P.2d 1263 (Colo. 1984).

Trial court did not abuse its discretion when it dismissed a juror and did not commit reversible error by not recording the side bar conference. A defendant must establish specific prejudice that resulted from an incomplete record. People v. Wolfe, 9 P.3d 1137 (Colo. App. 1999).

Trial court's decision to allow juror questioning in a criminal trial does not, in and of itself, violate a defendant's constitutional rights to a fair and impartial jury. Medina v. People, 114 P.3d 845 (Colo. 2005).

The court's decision to permit juror questioning did not constitute an abuse of discretion as the testimony elicited by the jurors was not new or different from other evidence already admitted. People v. Milligan, 77 P.3d 771 (Colo. App. 2003).

There was no abuse of discretion in denying challenge for cause. Juror stated she would express her opinions in the jury room, so the court reasonably concluded the juror could serve. People v. Collins, 250 P.3d 668 (Colo. App. 2010).

There was no abuse of discretion in denying defendant's challenge for cause where juror repeatedly stated he would not make a decision about the appropriate penalty until all of the evidence had been heard. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Trial court did not abuse its discretion in denying challenge for cause. It was trial court's role to assess and decide whether the juror could assess the victim's testimony like any other witness's testimony even though the juror had a prior relationship with the victim's family. Vigil v. People, 2019 CO 105, 455 P.3d 332.

Trial court's decision to grant prosecution's challenge for cause to a juror who stated he would vote for life imprisonment if any mitigation existed, however slight, was supported by the record. Juror's statement showed he was substantially impaired in his ability to fairly and impartially weigh the aggravating and mitigating evidence. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

When the trial court grants the prosecution's for-cause challenge of a prospective juror, reversal is not required when the claim is that the court abused its discretion. Because the prospective juror did not sit in judgment of the case, that ruling could not have deprived the defendant of his constitutional right to a fair and impartial jury; and because neither the prosecution nor the defendant is granted any right in this jurisdiction, by constitution, statute, or rule, to shape the composition of the jury through the use of peremptory challenges, the defendant could not have been harmed by the deprivation of any such right. Vigil v. People, 2019 CO 105, 455 P.3d 332.

Neither the prosecution nor the defendant is granted any right in this jurisdiction, by constitution, statute, or rule, to shape the composition of the jury through the use of peremptory challenges. The defendant could not have been harmed by the deprivation of any such right. Vigil v. People, 2019 CO 105, 455 P.3d 332.

The constitutional basis for the prosecutorial duty to refrain from improper methods calculated to produce a wrong conviction as well as to use every legitimate means to bring about a just one is the right to trial by a fair and impartial jury guaranteed by both the sixth amendment to the United States Constitution and art. II, §§ 16 and 23, of the Colorado Constitution. Harris v. People, 888 P.2d 259 (Colo. 1995).

Prosecutorial misconduct that misleads a jury can warrant reversal of a conviction because the right to trial includes the right to trial by an impartial jury empaneled to determine the issues solely on the basis of the evidence introduced at trial rather than on the basis of bias or prejudice for or against a party. Harris v. People, 888 P.2d 259 (Colo. 1995); People v. Walters, 148 P.3d 331 (Colo. App. 2006).

Comments on defendant's demeanor are not considered prosecutorial misconduct if defendant testifies in his or her own defense, thus making his or her demeanor and credibility proper subjects for the jury to consider. The prosecutor may not, however, inject his or her own credibility into the case. People v. Walters, 148 P.3d 331 (Colo. App. 2006).

It is improper and therefore constitutes prosecutorial misconduct for prosecutor to ask the jury to consider anecdotal evidence regarding acquaintances and personal experiences or other information outside the record that serves only to inflame the jurors' passion. People v. Walters, 148 P.3d 331 (Colo. App. 2006).

It is prosecutorial misconduct for an attorney to characterize a witness's testimony or his character for truthfulness with any form of the word "lie". A violation of this prohibition, although sanctionable in other ways, does not warrant reversal if it was harmless. Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005); Crider v. People, 186 P.3d 39 (Colo. 2008).

Prosecutor's comments regarding defendant grooming the jury violated defendant's right to due process and a fair trial. In taking expert's grooming testimony in sexual assault case and arguing that it applied directly to the jury, prosecutor crossed the line from permissible commentary on evidence to impermissible commentary about defendant's character and the jury. People v. Yachik, 2 0 2 0 COA 100, 469 P.3d 582.

Potential for jury prejudice is significantly diminished when a trial court sustains defense counsel's objection. People v. Suazo, 87 P.3d 124 (Colo. App. 2003).

Failure to instruct jury on element not necessarily structural, requiring reversal. If element uncontested, supported by overwhelming evidence, and jury verdict would have been same absent error, failure to instruct harmless. People v. Geisendorfer, 991 P.2d 308 (Colo. App. 1999).

Right to a fair trial before an impartial jury was not violated when evidence was admitted that at the time of the arrest the defendant had a handgun, the defendant was wearing multiple clothing, and several items of clothing identified by the police at trial were found in the defendant's car. This evidence was relevant, and no error existed in its admission. People v. Boehmer, 872 P.2d 1320 (Colo. App. 1993).

Defendant's right to fair trial held not violated when the prosecutor's argument, while supported by evidence admitted at trial, was contrary to facts outside the record but prosecutor was not aware of the facts outside the record. People v. Perry, 68 P.3d 472 (Colo. App. 2002).

Court's failure to question jury about possible juror misconduct did not prejudice defendant. Any error in not questioning the jury was harmless beyond a reasonable doubt. Alternate jurors' conversation about defendant's previous conviction occurred outside the presence of the regular jurors and there was no evidence that the regular jurors were exposed to the information. Alternate juror's statement to regular juror congratulating regular juror on the guilty verdicts also did not prejudice defendant because the incident occurred after the guilty verdicts were announced and had no effect on the jury during the guilt phase. Dunlap v. People, 173 P.3d 1054 (Colo. 2007), cert. denied, 552 U.S. 1105, 128 S. Ct. 882, 169 L. Ed. 2d 740 (2008).

Where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the sixth amendment requires that the no-impeachment rule, C.R.E. 606(b), give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. Pena-Rodriguez v. Colorado, __ U.S. __, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017).

Not every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence. Pena-Rodriguez v. Colorado, __ U.S. __, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017).

Trial court must conduct an evidentiary hearing regarding potential juror misconduct when defendant puts forth competent evidence, in the form of an affidavit that may contain hearsay, that indicates the jury may have considered prejudicial extraneous information. Since the trial court rejected the motion without conducting a hearing, a remand back for the hearing is the appropriate remedy. People v. Clark, 2 015 COA 44, 370 P.3d 197.

Applied in Stone v. People, 71 Colo. 162, 204 P. 897 (1922); Dikeou v. Food Distribs. Ass'n, 107 Colo. 38, 108 P.2d 529 (1940); People v. Benney, 757 P.2d 1078 (Colo. App. 1987).

B. Venue and Pretrial Publicity.

Pursuant to § 2 s18-1- 2 02" target="_blank">18-1-202 (11), the prosecution is not required to prove venue as an element of the offense and, therefore, the prosecution's burden of proof is not unconstitutionally lowered. The sixth amendment does not require venue to be an element of the crime proven beyond a reasonable doubt. A defendant's right to proper venue can be vindicated without having to submit the issue to a jury. People v. Lewis, 2017 COA 147, 433 P.3d 70.

In Colorado, a person is subject to prosecution in any Colorado district court if he or she commits an offense either wholly or partly within the state. People v. Sharp, 155 P.3d 577 (Colo. App. 2006).

Venue in a criminal case generally lies in the county where the offense was committed. Claxton v. People, 164 Colo. 283, 434 P.2d 407 (1967).

Right to trial in county where alleged offense is committed may be waived. The provision of this section that defendant in a criminal case shall have the right to a trial in the county or district in which the offense is alleged to have been committed, is solely for the benefit of the accused and may be waived by him at his pleasure. Davis v. People, 83 Colo. 295, 264 P. 658 (1928).

Where the defendant enters a plea of guilty to the charge, there is no "trial" within the import of the language of the provision which guarantees the right to a "speedy public trial by an impartial jury of the county or district". Even where a not guilty plea is entered and the issues of fact are determined by a jury, the accused may waive his right to trial in the county where the offense is committed. Vigil v. People, 135 Colo. 313, 310 P.2d 552 (1957).

Where defendant expressly consented to the proceedings in the county where the arraignment was had, he waived whatever right he might otherwise have had to be arraigned in the county where the alleged offense was committed. Vigil v. People, 135 Colo. 313, 310 P.2d 552 (1957).

This provision is guarantee of right to proper venue only and is for the sole benefit of the accused and may be waived. People v. Rice, 40 Colo. App. 357, 579 P.2d 647, cert. denied, 439 U.S. 898, 99 S. Ct. 261, 58 L. Ed. 2d 245 (1978).

This provision makes no reference to where arraignments shall be had. Vigil v. People, 135 Colo. 313, 310 P.2d 552 (1957); People v. Joseph, 920 P.2d 850 (Colo. App. 1995).

Effect of prejudice in community. Where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. Walker v. People, 169 Colo. 467, 458 P.2d 238 (1969).

If a community is prejudiced against a citizen or if other circumstances are likely to deny him a fair and impartial jury trial, then a change of venue must be granted. Brisbin v. Schauer, 176 Colo. 550, 492 P.2d 835 (1971).

Only when the publicity is so ubiquitous and vituperative that most jurors in a community could not ignore its influence is a change of venue required before voir dire examination. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

Factors as to whether pretrial publicity capable of biasing community. Some of the cumulative factors to be considered by a trial court in determining swhether there is such massive, pervasive, and prejudicial pretrial publicity as to bias a community are: the size and type of the locale, the reputation of the victim, the revealed sources of the news stories, the specificity of the accounts of certain facts, the volume and intensity of the coverage, the extent of comment by the news reports on the facts of the case, the manner of presentation, the proximity to the time of trial, and the publication of highly incriminating facts not admissible at trial. People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976).

Balance between fair trial and freedom of press. To strike the proper balance between the accused's right to a fair trial and the freedom of the press, the trial judge may: (1) Cause extensive voir dire examination of prospective jurors; (2) change the trial venue to a place less exposed to intense publicity; (3) postpone the trial to allow public attention to subside; (4) empanel veniremen from an area that has not been exposed to intense pretrial publicity; (5) enlarge the size of the jury panel and increase the number of peremptory challenges; or (6) use emphatic and clear instructions on the sworn duty of each juror to decide the issues only on the evidence presented in open court. People v. Botham, 629 P.2d 589 (Colo. 1981).

Mere existence of extensive pretrial publicity, by itself, does not trigger a due process entitlement to a change of venue. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

A defendant, in order to prevail on this argument, must show that the publicity was so "massive, pervasive, and prejudicial" as to create a presumption of an unfair trial or, or alternatively, that the publicity created actual hostility on the part of the jurors. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Tafoya, 703 P.2d 663 (Colo. App. 1985).

Defendant failed to meet this burden where the trial court allowed extensive in camera voir dire and gave cautionary remarks to the jury concerning avoidance of publicity and where the defendant failed to exhaust his peremptory challenges. People v. Tafoya, 703 P.2d 663 (Colo. App. 1985).

Mere familiarity with a case due to pretrial publicity does not, in itself, create a constitutionally defective jury. People v. Loscutoff, 661 P.2d 274 (Colo. 1983).

Mere speculation by a defendant that the jurors read and were prejudiced by unfavorable news articles does not constitute a basis for reversal, and a defendant bears the burden of showing that prejudice occurred. People v. Davis, 39 Colo. App. 63, 565 P.2d 1347 (1977); People v. Tafoya, 703 P.2d 663 (Colo. App. 1985).

The trial court's failure to sequester the jury or its failure to give the complete admonitory instruction when requested, and its refusal to allow any inquiry with regard to the jurors' exposure to out-of-court information, in light of the circumstances surrounding the trial, was an abuse of discretion. Under the circumstances of the case, this error, combined with others, required reversal. People v. Vialpando, 809 P.2d 1082 (Colo. App. 1990).

Presumption of partiality shown. Where it is shown that a significant number of jurors entertained an opinion of the defendant's guilt, had been exposed to pretrial publicity, and had knowledge of the details of the crime, the defendant has met his burden of showing the existence of an opinion in the minds of the jurors which raises a presumption of partiality. People v. Botham, 629 P.2d 589 (Colo. 1981).

VII. RIGHT TO UNANIMOUS JURY VERDICT.

There was no unanimity problem with the guilty verdict based on a series of sexual contacts since the defendant did not allege that some occurred and others did not. People v. Greer, 262 P.3d 920 (Colo. App. 2011).

The people adequately elected the specific acts underlying each count that constituted the pattern of sexual abuse. People v. Greer, 260 P.3d 920 (Colo. App. 2011).

There was a unanimity problem with four of the guilty verdicts since the jury indicated that it did not find a specific act was committed to support the guilty verdict for each count. Because the court did not resolve that problem by merging each of the four convictions into one conviction, reversal of the convictions is the proper remedy. People v. Greer, 262 P.3d 920 (Colo. App. 2011).

I. GENERAL CONSIDERATION.

Law reviews. For article, "Blood, Whiskey and the C onstitution", see 24 Rocky Mt. L. Rev. 459 (1952). For article, "One Year Review of C onstitutional and Administrative Law", see 34 Dicta 79 (1957). For note, "Habeas Corpus in Colorado for the Convicted Criminal", see 30 Rocky Mt. L. Rev. 145 (1958). For article, "One Year Review of Constitutional and Administrative Law", see 35 Dicta 7 (1958). For article, "One Year Review of Constitutional and Administrative Law", see 36 Dicta 11 (1959). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963). For note, "One Year Review of Constitutional Law", see 41 Den. L. Ctr. J. 77 (1964). For comment, "Reporter's Privilege: Pankratz v. District Court", see 58 Den. L.J. 681 (1981). For article, "Confessions and the Juvenile Offender", see 11 Colo. Law. 896 (1982). For article, "Incriminating Evidence: What to do With a Hot Potato", see 11 Colo. Law 880 (1982). For article, "Suffering Adverse Inference from Taking the Fifth in Civil Proceedings", see 12 Colo. Law. 1445 (1983). For casenote, "People v. Quintana: How 'Probative' Is This Colorado Decision Excluding Evidence of Post-Arrest Silence?", see 56 U. Colo. L. Rev. 157 (1984). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with post-arrest silence, see 61 Den. L.J. 281 (1984). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with double jeopardy, see 61 Den. L.J. 299 (1984). For article, "Criminal Procedure", which discusses Tenth Circuit decisions dealing with self-incrimination, see 62 Den. U. L. Rev. 168 (1985). For article, "Defending Against the Confession at Trial", see 15 Colo. Law. 409 (1986). For comment, "People v. Connelly: Taking Confession Law to the Outer Limits of Logic", see 57 U. Colo. L. Rev. 909 (1986). 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 self-incrimination, 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 self-incrimination and double jeopardy, see 15 Colo. Law. 1568 and 1572 (1986). For comment, "Oregon v. Elstad and Prior Unwarned Statements: What Suspects Don't Know Can Hurt Them", see 58 U. Colo. L. Rev. 325 (1987). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with double jeopardy, see 64 Den. U. L. Rev. 250 (1987). For article, "Logical Fallacies and the Supreme Court", see 59 U. Colo. L. Rev. 741 (1988). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with the Miranda warning and the voluntariness of confessions, see 65 Den. U. L. Rev. 547 (1988). For article, "Self Incrimination and the Insanity Plea: Out of the Mouths of Babes", see 66 Den. U. L. Rev. 81 (1988). For a discussion of Tenth Circuit decisions dealing with criminal procedure, see 66 Den. U. L. Rev. 739 (1989). For a discussion of Tenth Circuit decisions dealing with questions of criminal procedure, see 67 Den. U. L. Rev. 701 (1990). For article, "The Admissibility of Evidence of the Pre-Trial Exercise of Constitutional Rights", see 37 Colo. Law. 81 (July 2008).

Annotator's note. For other annotations concerning double jeopardy, see part 3 of article 1 of title 18.

Protection of innocent and preservation of integrity of society. Both the United States and the Colorado Constitutions accord an accused substantive and procedural rights that are binding on the government in a criminal prosecution. Such procedures protect the innocent from an unjust conviction and preserve the integrity of society itself by keeping sound and wholesome the process by which it visits its condemnation on a wrongdoer. People v. Germany, 674 P.2d 345 (Colo. 1983).

Derivative evidence rule which excludes evidence obtained as a result of violations of a defendant's constitutional rights applies to fourth, fifth, and sixth amendment violations, and prosecution bears burden to prove that evidence sought for admission was not acquired as a result of a constitutional violation. People v. Connelly, 702 P.2d 722 (Colo. 1985).

Applied in Imboden v. People, 40 Colo. 142, 90 P. 608 (1907); Morletti v. People, 72 Colo. 7, 209 P. 796 (1922); Sweeney v. Cregan, 89 Colo. 94, 299 P. 1058 (1931); French v. District Court, 153 Colo. 10, 384 P.2d 268 (1963); People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965); Ferrell v. Vogt, 161 Colo. 549, 423 P.2d 844 (1967); People ex rel. McKevitt v. District Court, 167 Colo. 221, 447 P.2d 205 (1968); McGee v. State Bd. of Accountancy, 169 Colo. 87, 453 P.2d 800 (1969); People v. Falgout, 176 Colo. 94, 489 P.2d 195 (1971); People v. Woods, 182 Colo. 3, 510 P.2d 435 (1973); People v. Montera, 198 Colo. 156, 596 P.2d 1198 (1979); People v. Sisneros, 44 Colo. App. 65, 606 P.2d 1317 (1980); Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981); Richardson v. District Court, 633 P.2d 595 (Colo. 1981); People v. Pierson, 632 P.2d 485 (Colo. App. 1981); People v. Franklin, 645 P.2d 1 (Colo. 1982); People v. Brassfield, 652 P.2d 588 (Colo. 1982); People v. Lucero, 654 P.2d 835 (Colo. 1982); People v. Fisher, 657 P.2d 922 (Colo. 1983); People v. Lowe, 660 P.2d 1261 (Colo. 1983).

II. SELF-INCRIMINATION.

Law reviews. For note, "Involuntary Confessions -- Fourth Stage in Colorado", see 31 Dicta 133 (1954). For comment on French v. District Court appearing below, see 36 U. Colo. L. Rev. 280 (1964). For comment on Lanford v. People appearing below, see 39 U. Colo. L. Rev. 158 (1966). For comment, "Limiting Prosecutorial Discovery Under the Sixth Amendment Right to Effective Assistance of Counsel: Hutchinson v. People", see 66 Den. U. L. Rev. 123 (1988).

Sections 16-8-103.6 , 16-8-106 , and 16-8-107 do not violate a defendant's constitutional privilege against self-incrimination. The information obtained in compulsory mental examinations is admissible only on the issue of mental condition and insanity raised by defendants themselves. People v. Bondurant, 2 01 2 COA 50, 296 P.3d 200.

When a defendant pleads not guilty by reason of insanity, § 16-8-104.5 's requirement of a unitary trial does not violate defendant's right against self-incrimination. Jury instructions based on § 16-8-107 are sufficient to protect a defendant's privilege against self-incrimination. People v. Marko, 2 015 COA 139, 434 P.3d 618, aff'd, 2 018 CO 97, 432 P.3d 607.

Common-law privilege fixed in constitution. Immunity from self-incrimination is a privilege immovably fixed in our constitution. The existence of the privilege is one of the outstanding and distinctive features of the common-law system of jurisprudence and one of the highest protections to the liberty of the citizens of a free democracy. Always the courts have been, and they should be, zealous in preserving the privilege. In so doing, however, they ought not to give it more than its due significance. It is to be respected rationally for its merits, not worshipped blindly as a fetish. People v. Clifford, 105 Colo. 316, 98 P.2d 272 (1939); People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956); People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966).

"Criminal cases", as used in the constitution, refers to cases which at the time of the adoption of the constitution were recognized as criminal, or cases which should thereafter be made criminal by statute. Austin v. City & County of Denver, 170 Colo. 448, 462 P.2d 600 (1969), cert. denied, 398 U.S. 910, 90 S. Ct. 1703, 26 L. Ed. 2d 69 (1970).

Privilege is only against self-incrimination. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

A witness is possessed of a constitutional right not to incriminate himself. Smaldone v. People, 158 Colo. 16, 404 P.2d 276 (1965).

It does not permit witness to remain silent to avoid incriminating third party. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973).

Self-incrimination is personal right. Pub. Utils. Comm'n v. District Court, 180 Colo. 388, 505 P.2d 1300 (1973).

And privilege may not be invoked by corporations. Pub. Utils. Comm'n v. District Court, 180 Colo. 388, 505 P.2d 1300 (1973).

The right to be free from self-incrimination applies to pre-arrest silence. Allowing the substantive use of such silence would substantially impair the policies behind the privilege. People v. Welsh, 58 P.3d 1065 (Colo. App. 2002), aff'd on other grounds, 80 P.3d 296 (Colo. 2003).

The use of pre-arrest silence when the defendant does not testify impermissibly burdens the privilege guaranteed by the fifth amendment and thus is inadmissible in the prosecution's case-in-chief as substantive evidence of guilt or sanity; no evidentiary inference of consciousness of guilt or sanity can trump a fifth amendment right. People v. Welsh, 58 P.3d 1065 (Colo. App. 2002), aff'd on other grounds, 80 P.3d 296 (Colo. 2003).

No privilege against self-incrimination under the fifth amendment where defendant's incriminating statements to undercover agent were obtained pursuant to defendant's express invitation. People v. Battle, 694 P.2d 359 (Colo. App. 1984).

Defendant has no protection from testifying about whether he requested counsel because such testimony has no bearing on his guilt or innocence. People v. Turtura, 921 P.2d 40 (Colo. 1996).

Trial court erred in suppressing voluntary statements made by arrestee to police investigator. Arrestee initiated conversation with the investigator and the investigator did not deliberately elicit statement from the arrestee. The court, upon finding that the arrestee was not being subjected to interrogation, need not have considered whether the arrestee waived his fifth or sixth amendment rights. People v. Ross, 821 P.2d 816 (Colo. 1992).

Volunteered statements by a defendant are not proscribed by the fifth amendment, therefore, defendant's right against self-incrimination was not violated by the introduction of such voluntary statements. People v. Ridley, 872 P.2d 1377 (Colo. App. 1994).

Section applies to witness in any investigation. The provision of this section that "no person shall be compelled to testify against himself in a criminal case" was not intended merely for the protection of the individual in a criminal prosecution against himself, but its purpose was to insure that a person could not be required, when acting as a witness in any investigation, to give testimony which might tend to show that he, himself, had committed a crime. Tuttle v. People, 33 Colo. 243, 79 P. 1035 (1905).

Privilege applies both at trial and in other proceedings. The privilege against self-incrimination operates to protect the accused against compulsory testimony not only at the trial but also in other proceedings. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

Since a witness-defendant's forced incriminating statements could influence the court to impose a harsher sentence than it might have imposed absent the involuntary testimony, a defendant who has not yet been sentenced retains the privilege against self-incrimination. She may refuse to testify about any aspect of the subject matter giving rise to the guilty verdict which might influence the trial court's sentencing decision. Steinberger v. District Court, 198 Colo. 55, 596 P.2d 755 (1979).

Attorney's exercise of privilege against self-incrimination was valid at hearings to determine whether attorney had ability to pay court-ordered restitution, as there was the threat of incarceration for punitive reasons arising out of contempt proceedings. People v. Razatos, 699 P.2d 970 (Colo. 1985).

Fifth amendment protections afforded a criminal defendant apply in post-dissolution contempt proceedings in which the potential exists for a sanction of imprisonment to be imposed as punishment. In re Alverson, 981 P.2d 1123 (Colo. App. 1999).

Defendant's fifth amendment claim necessarily failed because he waived his right to remain silent at sentencing when he chose to "speak my piece". There is no reason why the court could not consider what a defendant who chose to speak at sentencing said as well as what defendant did not say. There is no constitutional right to be free from a court considering a dissembling sentencing allocution. People v. McBride, 228 P.3d 216 (Colo. App. 2009).

Defendant police officers appearing before a citizens group created by city ordinance to review conduct of police officers could not be compelled to answer such group's questions over their assertion of their fifth amendment privilege not to incriminate themselves. City & County of Denver v. Powell, 969 P.2d 776 (Colo. App. 1998).

A party may not call a witness to testify if that party knows the witness will exercise her privilege against self-incrimination, and this prohibition applies whether or not the claim of privilege is proper. People v. Newton, 940 P.2d 1065 (Colo. App. 1996), aff'd, 966 P.2d 563 (Colo. 1998).

If the prosecutor asks whether the witness is invoking his or her right against self-incrimination and the witness does not respond, there is no violation of the right. If the witness does not invoke the right at trial, the question of whether the prosecution called the witness solely to extract the witness's claim of the right does not apply. People v. Banks, 2 01 2 COA 157, 412 P.3d 417, aff'd in part and rev'd in part on other grounds sub nom. People v. Tate, 2015 CO 42, 352 P.3d 959.

Privilege not extended to civil commitment proceedings. Due process does not require that the privilege against self-incrimination be extended to civil commitment proceedings. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Nor to sentencing proceedings. Defendant's statutory privilege against self-incrimination during course of court-ordered psychiatric examinations and protection from being confronted with evidence acquired from examinations did not extend to proceedings conducted for sentencing purposes. And, even if the constitutional privilege against self-incrimination is assumed to apply to the use of information for sentencing purposes after guilt has been established, the defendant waived his right against self-incrimination where he consented to use of reports from court-ordered psychiatric examination at sentencing hearing and had been apprised of his constitutional rights by his attorney. People v. Hernandez, 768 P.2d 755 (Colo. App. 1988).

And scope of privilege includes proceedings before grand juries. People v. McPhail, 118 Colo. 478, 197 P.2d 315 (1948).

But completed criminal contempt in presence of court is not protected by the constitutional privilege against incrimination. Smaldone v. People, 158 Colo. 7, 405 P.2d 208 (1965), cert. denied, 382 U.S. 1012, 86 S. Ct. 616, 15 L. Ed. 2d 527 (1966).

If the court finds the claim of privilege to be invalid, it should consider contempt penalties against the witness, rather than allowing questioning that could be prejudicial to the defendant. People v. Newton, 940 P.2d 1065 (Colo. App. 1996), aff'd, 966 P.2d 563 (Colo. 1998).

Immunity allows state to compel testimony. A grant of immunity as extensive as a witness's constitutional privilege against self-incrimination allows a state to compel testimony which might otherwise be unobtainable. People ex rel. Smith v. Jordan, 689 P.2d 1172 (Colo. App. 1984).

Citizens group created by city ordinance to review conduct of police officers could not compel police officers under group's review to answer such group's questions over their assertion of their fifth amendment privilege not to incriminate themselves when group had no authority to grant immunity to such police officers. City & County of Denver v. Powell, 969 P.2d 776 (Colo. App. 1998).

When the privilege against self-incrimination is invoked in a civil case, the finder of fact should be permitted to draw an adverse inference therefrom. Asplin v. Mueller, 687 P.2d 1329 (Colo. App. 1984); Chaffin, Inc. v. Wallain, 689 P.2d 684 (Colo. App. 1984).

Prior to determining what consequence will flow from a plaintiff's invocation of the privilege, the trial court must consider the defendant's need for the information withheld, whether the defendant has any alternative means of obtaining that information, and whether any effective remedy, short of dismissal, is available to safeguard both parties' interests. Steiner v. Minn. Life Ins. Co., 85 P.3d 135 (Colo. 2004).

The privilege against self-incrimination protects one accused of a crime from providing the state, not a private employer, with evidence of a testimonial nature. Wilson v. Indus. Comm'n, 730 P.2d 911 (Colo. App. 1986).

Administrative hearing need not be continued pending outcome of parallel criminal charge. If person invokes privilege against self-incrimination and this is not held against the person, the privilege is satisfied, and there is no denial of due process despite pending criminal proceedings. Smith v. Charnes, 728 P.2d 1287 (Colo. 1986).

Statements used for impeachment purposes. Statements made by an accused under circumstances rendering the statement inadmissible for substantive purposes may be admitted for the limited purpose of impeaching the accused's credibility if statements were voluntarily given. People v. Mickens, 734 P.2d 646 (Colo. App. 1986).

There is no exception to the exclusionary rule for the use of excluded evidence to impeach a witness who is not the defendant. People v. Trujillo, 30 P.3d 760 (Colo. App. 2000), aff'd, 49 P.3d 316 (Colo. 2002).

If a defendant's statements to the arresting officer were the subject of his direct examination, the defendant could be subjected to cross-examination about those statements without violating any constitutional rights, federal or state. People v. Moran, 983 P.2d 143 (Colo. App. 1999).

It was not error for the prosecution to refer to evidence concerning the omissions from defendant's statements at the time of his arrest in closing arguments, because the evidence was properly admitted. Contrary to defendant's characterization, the prosecutor was not improperly commenting on defendant's post-arrest "silence". Rather, the prosecutor was properly commenting on reasonable inferences that could be drawn about defendant's credibility from his testimony and his statements to the arresting officer. People v. Moran, 983 P.2d 143 (Colo. App. 1999).

No violation of defendant's right to due process where defendant volunteered that he had invoked his right to remain silent and the prosecutor did not comment on it in the jury's presence. Prosecutor did not deliberately elicit testimony from defendant that he had invoked his right to remain silent. Prosecutor asked defendant leading questions intended to elicit testimony that he had refused to consent to a search. People v. Chavez, 190 P.3d 760 (Colo. App. 2007).

Fifth amendment protection does not extend to protection from being called as a witness in a civil proceeding even if party is claiming the privilege. In re Hoyt, 742 P.2d 963 (Colo. App. 1987).

Although punitive contempt is not a common law or statutory crime, the possibility of incarceration associated with such proceedings is sufficient to require recognition and protection of the rights afforded to criminal defendants, including the right not to be called as a witness. In re Alverson, 981 P.2d 1123 (Colo. App. 1999) (disagreeing with In re Hoyt cited above and decided prior to 1995 amendments to C.R.C.P. 107).

Although privilege against self-incrimination under the fifth amendment generally applies only to state action, where no state action is involved in an accused making incriminating statements to a private individual under circumstances that so overbear a person's will as to render such statements involuntary, a confession is inadmissible. People v. Freeman, 739 P.2d 856 (Colo. App. 1987).

Defendant protected from supplying link in evidence against himself. The provision of this section that no person shall be compelled to testify against himself was not intended merely to protect a party from being compelled to make confession of guilt, but protects him from being compelled to furnish a single link in a chain of evidence by which his conviction of a criminal offense might be secured. Tuttle v. People, 33 Colo. 243, 79 P. 1035 (1905).

But not every type of evidence derived from defendant is protected or privileged under defendant's right to not incriminate himself. Thompson v. People, 181 Colo. 194, 510 P.2d 311 (1973).

As the privilege is prohibition of use of physical or moral compulsion to exact communications. Serratore v. People, 178 Colo. 341, 497 P.2d 1018 (1972).

Privilege against self-incrimination is specifically limited to testimonial compulsion. Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966); Serratore v. People, 178 Colo. 341, 497 P.2d 1018 (1972).

The privilege against self-incrimination protects a person against the production of evidence of a testimonial or communicative nature. Houston v. Manerbino, 185 Colo. 1, 521 P.2d 166 (1974); People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975); People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980).

The federal and state constitutional privilege against self-incrimination is concerned with and limited to testimonial compulsion, as distinguished from compulsion to exhibit physical characteristics. 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); Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1972).

And privilege is inapplicable to real or demonstrative evidence. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

The privilege against self-incrimination does not extend to demonstrative evidence obtained from the defendant or from a witness, to performance of acts in or out of court, or to blood tests. People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975).

The constitution protects one against an admission of guilt coming from his own lips under compulsion and against the will of the accused and has no relation whatever to real as distinguished from testimonial evidence. Vigil v. People, 134 Colo. 126, 300 P.2d 545 (1956).

Allowing a jury to view a photograph of a defendant's bare chest did not violate defendant's right against self-incrimination. The right against self-incrimination does not prohibit authorities from recording physical characteristics of a person. People v. Osorio-Bahena, 2 013 COA 55, 31 2 P.3d 247.

Trial court's ruling that defendant's suppression hearing testimony was admissible to impeach sister's character testimony did not violate constitutional protections. The fourth amendment right to suppress inadmissible testimony, the fifth amendment right against self-incrimination, and the sixth amendment right to present evidence in a defense are all at play in the question of whether the prosecution could use defendant's suppression testimony that he had sexual contact with the victim to impeach the defendant's sister's character testimony that the defendant would not commit sexual assault. The following factors supported the court's ruling to admit the testimony: The evidence was not offered on the issue of guilt; the defendant still has an obligation to present truthful testimony; the defendant's statement was made under oath, not based on a hypothetical assumption that defendant was guilty of the crime; and the trial court's willingness to allow the defendant to use leading questions when presenting defendant's sister's testimony. Thus, each of defendant's constitutional rights were protected. People v. Dembry, 91 P.3d 431 (Colo. App. 2003).

Defendant may be compelled to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The privilege against self-incrimination is a bar against compelling communications or testimony; but that compulsion which makes a suspect or accused the source of real or physical evidence does not violate it. Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970).

Admission of statements made during a voice identification procedure that constituted a custodial interrogation and was not preceded by Miranda warnings violated defendant's right against self-incrimination. People v. Jaquez, 2 018 COA 76, 446 P.3d 865.

Statements made by defendant during booking process regarding possession of marijuana violated fifth amendment privilege and, therefore, were inadmissible. Because defendant made statements to booking officers denying possessing contraband without the benefit of Miranda v. Arizona 384 U.S. 436 (1966), warnings, the trial court erred in admitting those statements. The statements did not fall under the booking question exception because the questions were unrelated to basic identifying data, nor did the statements fall under the public safety exception because the officer's questions exceeded the scope by asking about items beyond weapons or dangerous instruments. People v. Allen, 199 P.3d 33 (Colo. App. 2007).

Court erred in refusing to suppress defendant's statement made at the jail before having been advised of her right to remain silent that she did not possess any drugs; however, the error was harmless because the other properly admissible evidence was overwhelming. People v. Frye, 2 014 COA 141, 356 P.3d 1000.

When response to questioning is itself a new crime, failure to give Miranda warnings does not require suppression of statement. Prior to being given Miranda warnings, defendant gave a false name. Exclusionary rule will not bar admission of defendant's response at any subsequent trial for charges based on the defendant's false statement. People v. Compos, 2 019 COA 177, __ P.3d __.

Evidence of physical facts relating to defendant admissible. The purpose of the provision against self-incrimination is to prevent a man from being compelled to utter words that will incriminate him, and not to exclude all evidence of physical facts relating to defendant. Block v. People, 125 Colo. 36, 240 P.2d 512 (1951), cert. denied, 343 U.S. 978, 72 S. Ct. 1076, 96 L. Ed. 1370, reh'g denied, 344 U.S. 848, 73 S. Ct. 6, 97 L. Ed. 659 (1952).

The provision against self-incrimination is limited to protection against testimonial compulsion, and does not extend to the exclusion of the body as evidence when such evidence may be relevant and material. Vigil v. People, 134 Colo. 126, 300 P.2d 545 (1956); LaBlanc v. People, 161 Colo. 274, 421 P.2d 474 (1966).

Such as tattoos. There was no error in allowing a police officer to testify concerning his examination of the defendant's arm and to describe the tattoo he found. The examination in question was not violative of the prohibition against compulsory self-incrimination, and testimony concerning the examination is admissible if relevant and material. LaBlanc v. People, 161 Colo. 274, 421 P.2d 474 (1966).

Results of physical examination. The admission of testimony based upon a physical examination is not violative of the constitutional immunity against self-incrimination. Vigil v. People, 134 Colo. 126, 300 P.2d 545 (1956).

Results of roadside sobriety test. The privilege against self-incrimination does not extend to the results obtained from a roadside sobriety test. Such a test does not contravene the privilege by requiring the subject to divulge any knowledge he might have; the fact that the subject's guilt may be inferred from the results of the test goes to the probity of the testing method, not to its character as a supposed confession surrogate. People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980).

Miranda warnings are not required before the administration of a roadside sobriety test. People v. Helm, 633 P.2d 1071 (Colo. 1981).

Motion pictures of defendant. In a proceeding to determine whether defendant was driving under the influence of intoxicating liquors, a motion picture that is taken without the defendant's consent and shows his refusal to submit to tests does not violate defendant's constitutional rights against self-incrimination. Lanford v. People, 159 Colo. 36, 409 P.2d 829 (1966); People v. Ramirez, 199 Colo. 367, 609 P.2d 616 (1980).

Photographs. The taking of photographs of a suspect does not involve his privilege against self-incrimination. Sandoval v. People, 172 Colo. 383, 473 P.2d 722 (1970).

And business records. Seizure of business records does not violate defendant's privilege against self-incrimination because defendant was not "compelled" to produce the papers; the papers are not communicative in nature; the papers are business records of which others must have knowledge, rather than personal and private writings; and the papers are instrumentalities of the crime with which defendant is charged. People v. Tucci, 179 Colo. 373, 500 P.2d 815 (1972).

Withdrawal of blood and use of analysis in case does not involve compulsion to testify against one's self, or otherwise provide the state with evidence of a testimonial or communicative nature. 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).

Because blood tests are not testimony of the defendant, the nonconsensual withdrawal of a blood sample does not violate the defendant's protection against self-incrimination. 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).

Admission of blood alcohol test is not barred by this section. Block v. People, 125 Colo. 36, 240 P.2d 512 (1951), cert. denied, 343 U.S. 978, 72 S. Ct. 1076, 96 L. Ed. 1370, reh'g denied, 344 U.S. 848, 73 S. Ct. 6, 97 L. Ed. 659 (1952).

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).

Since breath tests are not testimony of defendant, nonconsensual test does not violate defendant's protection against self-incrimination. People v. Bowers, 716 P.2d 471 (Colo. 1986).

A refusal to take a blood or breath test when a police officer has lawfully requested it is not compelled testimony entitled to protection under the Colorado Constitution. Cox v. People, 735 P.2d 153 (Colo. 1987).

Mere fact that witness observed the defendant at a hearing in which the defendant gave immunized testimony does not constitute a use of that testimony in violation of the right not to incriminate oneself. Defendant could have been compelled to appear before the witness and to speak even in the absence of the grant of immunity since the right does not extend to non-testimonial actions. People v. Reali, 895 P.2d 161 (Colo. App. 1994).

Allowing prosecution to use notices of alibi for impeachment when defendant testified inconsistently with the information contained in such notices did not violate defendant's fifth amendment rights. People v. Lowe, 969 P.2d 746 (Colo. App. 1998).

Prearraignment mental examination of accused does not of itself violate his privilege against self-incrimination any more than the taking of a statement from him constitutes a per se violation. Early v. People, 142 Colo. 462, 352 P.2d 112, cert. denied, 364 U.S. 847, 81 S. Ct. 90, 5 L. Ed. 2d 70 (1960).

Plea of not guilty by reason of insanity not compulsory incrimination. Since a defendant can offer evidence of his insanity as bearing upon his ability to form criminal intent, he is not compelled to enter a plea of not guilty by reason of insanity, and hence there is no basis for holding his election to do so as compulsory incrimination. Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959).

Commitment for observation and examination after insanity plea does not violate section. Confinement of a defendant, who urges the defense of insanity, in a hospital for observation and examination does not offend against this section. Ingles v. People, 92 Colo. 518, 22 P.2d 1109 (1933).

An accused who submits to the procedures prescribed by statute in connection with criminal insanity cannot at the same time claim that he is being compelled to testify against himself. No change in the matter of incarceration and observation is provided by the procedure save from jail to hospital, and such incarceration and examination does not violate defendant's constitutional exemption from testifying against himself. Wymer v. People, 114 Colo. 43, 160 P.2d 987 (1945); Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959).

And defendant may refuse to cooperate in examinations after pleading insanity. A person accused of a crime who enters a plea of not guilty by reason of insanity cannot be compelled to carry on conversations against his will under the penalty of forfeiture of the defense for failure to respond to questions, or for a refusal to "cooperate" with persons appointed to examine him. The procedures prescribed by statute to be followed upon the entry of a plea of not guilty by reason of insanity cannot operate to destroy the constitutional safeguards against self-incrimination. French v. District Court, 153 Colo. 10, 384 P.2d 268 (1963).

Section 16-8-107 (1.5)(a) does not violate the privilege against self-incrimination. The only permissible use of statements made during a sanity examination is to determine whether a defendant was capable of forming a culpable mental state. People v. Herrera, 87 P.3d 240 (Colo. App. 2003).

Information produced at psychiatric commitment hearing not usable in criminal proceedings. No information produced at a hearing on involuntary short-term certification for psychiatric treatment, unless available to the people from other sources, can be used to incriminate the person sought to be committed in future criminal proceedings. People v. Taylor, 618 P.2d 1127 (Colo. 1980).

Prosecution may not elicit defendant's incriminating admissions from his psychiatrist. The prosecution may not call as a witness in its case-in-chief a psychiatrist privately retained by the defendant in connection with an insanity plea and elicit from the psychiatrist incriminating admissions made by the defendant during a sanity examination. People v. Rosenthal, 617 P.2d 551 (Colo. 1980).

This reasoning applies with equal force to communications made by indigent defendants to court-appointed psychiatrists pursuant to § 16-8-108 (1). People v. Roark, 643 P.2d 756 (Colo. 1982).

Counseling for abusive men for defendant arrested on domestic violence charges and alcohol-related misdemeanors as a condition of bond implicates defendant's fifth amendment privilege against self-incrimination and the presumption of innocence since such counseling may encourage or even require participants to admit their abusive behavior. Martell v. County Court of Summit County, 854 P.2d 1327 (Colo. App. 1992).

If a court-ordered competency examination is required, the trial court must provide the defendant with adequate safeguards calculated to ensure protection not only of the defendant's privilege against self-incrimination but also such defendant's right to counsel. People v. Branch, 805 P.2d 1075 (Colo. 1991).

Requiring a sex offender as a condition of his supervised release to successfully complete a sex offender treatment program, including a sexual history polygraph requiring him to answer questions regarding whether he had committed sexual crimes for which he was never charged violated his fifth amendment privilege against self-incrimination. United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016).

Because the answers to the mandatory questions could focus an investigation on the offender and also because his confession to the past crimes could potentially be used against him at trial, the offender faces at least some authentic danger of self-incrimination by answering some of the questions in the polygraph. United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016).

The government's threat to revoke an offender's supervised release for his failure to answer potentially incriminating questions rises to the level of unconstitutional compulsion. A threat to revoke one's probation for properly invoking one's fifth amendment privilege is the type of compulsion the state may not constitutionally impose. United States v. Von Behren, 822 F.3d 1139 (10th Cir. 2016).

But no violation of a defendant's fifth amendment rights in denying him the privilege of probation when defendant would not, during the pendency of his appeal and in the course of sex offender treatment, admit responsibility for his crime. A person who is applying for probation is in a different situation from a person who has been sentenced to probation. In the latter instance, the person has attained a liberty interest, which may not be taken away from him or her in the absence of due process. In the instance of an applicant for probation, however, the person has no such interest. People v. Whitlock, 2 014 COA 16 2 , 412 P.3d 667.

Defendant's privilege against self-incrimination precluded the court from revoking defendant's probation based on a refusal to answer the polygraph examiner's question regarding viewing or using child pornography while on probation. People v. Roberson, 2016 CO 36, 377 P.3d 1039.

There is no fifth amendment violation when a trial court revokes a defendant's probation based on a total refusal to attend sex offender treatment. Defendant prematurely invoked his fifth amendment right before actually being required to incriminate himself. People v. Ruch, 2016 CO 35, 379 P.3d 309.

Privilege against self-incrimination is option of refusal, not prohibition of inquiry. People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966).

Two-prong test to determine whether statements are compelled by threat of discharge from employment: (1) A person must subjectively believe that he will be fired for asserting his fifth amendment privilege against self-incrimination, and (2) that belief must be objectively reasonable under the circumstances. People v. Sapp, 934 P.2d 1367 (Colo. 1997); Hopp & Flesch v. Backstreet, 123 P.3d 1176 (Colo. 2005).

Whether a subjective belief that a person will be terminated from employment for asserting the fifth amendment privilege is objectively reasonable under the circumstances is an issue of law. People v. Sapp, 934 P.2d 1367 (Colo. 1997); Hopp & Flesch v. Backstreet, 123 P.3d 1176 (Colo. 2005).

In order for such a belief to be objectively reasonable, the belief must result from some significant coercive action of the state. People v. Sapp, 934 P.2d 1367 (Colo. 1997); Hopp & Flesch v. Backstreet, 123 P.3d 1176 (Colo. 2005).

The action of the state must be more coercive than that resulting from the general obligation imposed on a witness to give truthful testimony. People v. Sapp, 934 P.2d 1367 (Colo. 1997); Hopp & Flesch v. Backstreet, 123 P.3d 1176 (Colo. 2005).

A person's subjective belief that he will be dismissed from employment for asserting the fifth amendment privilege is not objectively reasonable even though the person was interviewed by three supervising officers who knew that criminal charges might be warranted and did not so advise the person and who searched him and his workstation, with his consent, and held his badge and keys during that search. Such facts do not comprise the level of state coercion necessary to support objective reasonableness. People v. Koverman, 38 P.3d 85 (Colo. 2002).

Nor does an employment policy stating that if an employee is requested to make a statement in the course of an official investigation, the employee shall make full, complete, and truthful statements, support an objectively reasonable fear of termination. People v. Koverman, 38 P.3d 85 (Colo. 2002).

Proper procedure for asserting privilege. The privilege against self-incrimination may not be asserted in advance of the questions actually propounded. The proper procedure is to wait until a question which tends to be incriminating has been asked and then decline to answer. Otherwise the privilege is normally waived when the question is answered. People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966); People in Interest of I.O., 713 P.2d 396 (Colo. App. 1985).

Grant of immunity as extensive as witness's constitutional privilege against self-incrimination allows the state to compel testimony which might otherwise be unattainable. Steinberger v. District Court, 198 Colo. 55, 596 P.2d 755 (1979).

Subject of investigation may not be summoned to testify before grand jury. It is intolerable that one whose conduct is being investigated for the purpose of fixing on him a criminal charge, should, in view of the constitutional mandate of this section, be summoned before a grand jury to testify against himself and furnish evidence upon which he may be indicted. It is a plain violation both of the letter and spirit of the organic law. People v. Clifford, 105 Colo. 316, 98 P.2d 272 (1939); People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956).

Unless fully warned of privilege. A defendant cannot be called before a grand jury which is investigating suspected offenses unless the putative or focused-on defendant is fully warned of his or her privilege against self-incrimination, and this principle remains true even though the focused-on defendant is not yet formally charged. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

But voluntary appearance and testimony do not violate privilege. The appearance and voluntary testimony by a potential defendant before a grand jury, after being fully advised both of his constitutional rights and that he is the subject of the investigation, is not in violation of the privilege against self-incrimination. People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966).

And persons so testifying chargeable. Under the Colorado rule, voluntary testimony before a grand jury by one who is the subject of the investigation does not in and of itself grant immunity to the witness against a subsequent prosecution, and a charge may be brought by a grand jury against one who, although advised he was a subject of the investigation and warned of the privilege against self-incrimination, appears unsubpoenaed before the grand jury. People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966).

Defendant's mere silence throughout a period of questioning that included two advisements of his rights and written waivers thereof gave no indication that he wished to invoke his right to terminate interrogation. People v. Cooper, 731 P.2d 781 (Colo. App. 1986).

Testimony before grand jury admissible in later perjury trial. Defendants who were not advised of their rights against self-incrimination prior to their grand jury appearance are not entitled to have their testimony before the grand jury suppressed in later perjury prosecution. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

Since warning applies only to admissions as to past acts. The required warning concerning one's privilege against self-incrimination in a grand jury appearance relates to admissions concerning past acts, and its absence does not grant witnesses the right to commit perjury before the grand jury. People v. Spencer, 182 Colo. 189, 512 P.2d 260 (1973).

Defendant has right to remain silent after arrest. People v. Campbell, 187 Colo. 354, 531 P.2d 381 (1975).

In-custody defendant must be informed of right to remain silent. At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Since in-custody questioning jeopardizes privilege against self-incrimination. When an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Measures required for in-custody interrogation. Unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Miranda protections must be afforded when the person suspected of criminal conduct is subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. Roybal v. People, 178 Colo. 259, 496 P.2d 1019 (1972).

Basis for pronouncement in Miranda was that a defendant should not be convicted by his own words unless he waived the rights that the U.S. supreme court deemed fundamental under the provisions of the fifth and sixth amendments to the United States Constitution. Redmond v. People, 180 Colo. 24, 501 P.2d 1051 (1972).

The advisement defendant received concerning his right to appointed counsel was sufficient to convey to him that if he could not afford one, an attorney would be provided free of charge. Miranda v. Arizona does not require that a suspect be advised of or understand that he or she will not ultimately bear any liability for the cost of an attorney appointed to assist him or her during custodial interrogation. However, defendant was adequately advised in his native language and understood that if he requested the assistance of an attorney to consult with him and be present during custodial interrogation, but could not afford one, one would be appointed for that purpose. Sanchez v. People, 2014 CO 56, 329 P.3d 253.

If defendant wishes to remain silent, interrogation must cease. If an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Defendant's brief statement to the arresting officer, after he had been informed of his right to refrain from responding to questions, made as a result of a knowing, intelligent, and voluntary waiver of his right to remain silent did not deprive him of his right to refrain from answering any further inquiries. People v. Ortega, 198 Colo. 179, 597 P.2d 1034 (1979).

No interrogation until rights exercised by defendant. Where a defendant is advised of his rights, he cannot be effectively interrogated until given an opportunity to exercise his rights, unless he has knowingly and intelligently waived them. Roybal v. People, 178 Colo. 259, 496 P.2d 1019 (1972).

Periodic repeating of interrogation after refusal to make statement not permitted. When the police are met with a refusal to make any statement during an attempted in-custody interrogation, a periodic repeating of the procedure until the accused finally makes a statement is not permitted. Dyett v. People, 177 Colo. 370, 494 P.2d 94 (1972).

But police are not forever banned from asking defendant further questions. In determining admissibility of statements obtained after suspect has invoked right of silence, court should consider particular circumstances under which custodial statement was obtained, including the four factors discussed in Michigan v. Mosley, (423 U.S. 96, 96 S. Ct. 321, 46 L. Ed. 2d 313 (1975)). These four factors are to be considered along with any other factor bearing on whether the police fully respected the suspect's right to cut off questioning. People v. Quezada, 731 P.2d 730 (Colo. 1987).

The admissibility of statements obtained after the person in custody has decided to remain silent depends according to Miranda on whether the person's right to cut off questioning was scrupulously honored. People v. Close, 867 P.2d 82 (Colo. App. 1993).

Miranda referred to those cases in which the police refuse to take "no" for an answer and continue to question, harass, cajole, and coerce the defendant in total disregard of his desire to exercise his constitutional right to remain silent but it did not mean that after an accused has once refused to talk to law enforcement officers, they are forever barred from asking the defendant any further questions. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972); Dyett v. People, 177 Colo. 370, 494 P.2d 94 (1972).

Miranda did not mean that after an accused has once refused to talk to law enforcement officers, the police are forever barred from questioning or talking to the defendant about any phase of the criminal conduct that was charged. People v. Naranjo, 181 Colo. 273, 509 P.2d 1235 (1973).

Every person accused of a crime has the right to remain silent in the face of a criminal accusation. People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973).

What the supreme court condemned in Miranda were those cases in which the police refuse to take "no" for an answer and continue to question, harass, and coerce the defendant to cast aside his desire to exercise his constitutional right to remain silent. People v. Naranjo, 181 Colo. 273, 509 P.2d 1235 (1973).

Miranda rule applies only to custodial interrogation, which means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971); People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972); People v. Viduya, 703 P.2d 1281 (Colo. 1985); People v. Kurts, 721 P.2d 1201 (Colo. App. 1986).

The Miranda warning to be given to defendants before confessions elicited will be admissible is required only in those instances where there is investigatory activity being directed against the defendant by state agents. Lewis v. People, 174 Colo. 334, 483 P.2d 949 (1971).

Where a statement made by the defendant was prior to the accusatory stage and was made before he was taken into custody, it does not come under the prohibitions of Miranda. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971); Yerby v. People, 176 Colo. 115, 489 P.2d 1308 (1971).

Defendant's rights were not violated where she was not in custody or the subject of police interrogation at the time she made statements to drug enforcement administration agents about other drug transactions and agreed to arrange at least one such transaction. People v. Ridley, 872 P.2d 1377 (Colo. App. 1994).

Once a suspect is confronted with custodial interrogation, he is entitled to Miranda warnings. Such requirement is not contingent upon a defendant's actual or presumed knowledge of his rights or on his status but, rather, must be honored in all instances of custodial interrogation. People v. Probasco, 795 P.2d 1330 (Colo. 1990).

In determining whether defendant is in custody for Miranda purposes, objective test should be applied, that is, whether under the circumstances a reasonable man would believe himself to be deprived of his freedom in any significant way. People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972).

Where defendant's driver's license was taken by a police officer and he was instructed to remain in a particular place, each, in itself, a significant deprivation of his liberty, the defendant reasonably believed that, under the circumstances, he was not free to leave if he wished and police questioning of defendant was "custodial interrogation" for purposes of Miranda; and, in the absence of prior Miranda warnings, defendant's answers may be properly suppressed. People v. Gutierrez, 198 Colo. 118, 596 P.2d 759 (1979).

A trial court's inquiry when considering whether a defendant is in custody for Miranda purposes is limited to an objective assessment whether, under the totality of the circumstances, a reasonable person in the defendant's position would consider himself to be deprived of his freedom of action to the degree associated with a formal arrest. People v. Matheny, 46 P.3d 453 (Colo. 2002).

Defendant not in custody for Miranda purposes when he made statements to police. Defendant's statements to police without Miranda advisement being given were admissible when, under the totality of the circumstances, defendant was not in custody when he made the statements. Factors weighing against the defendant being in custody were that: (1) the encounter occurred at defendant's home; (2) the encounter was brief; (3) the police officer's tone was conversational and his questions were non-confrontational and open-ended; (4) a deputy police chief on scene told defendant that he wasn't being arrested when he was asked to go outside to talk; (5) only one of the four officers on site asked defendant questions; and (6) defendant's statements were indifferent and deflecting and he did not confess to the crime he was being asked about. People v. Clark, 2020 CO 36, __ P.3d __.

Custodial presence not precluded by initially voluntary appearance. That defendant's appearance for a polygraph examination was initially voluntary did not preclude the characterization of his presence thereafter as custodial, and the interrogation as custodial interrogation. People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972).

Miranda warnings to be given before commencement of polygraph examinations. Prudent police practice requires that when polygraph examinations are to be given persons in custody under investigation for suspected criminal conduct, they should be given Miranda warnings before the commencement of such examinations. People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972).

Failure to give defendant a Miranda advisement violated his due process rights and his statements to a counselor at a juvenile detention center about shooting the victim were inadmissible because the counselor was an agent of the state based on an examination of the totality of the circumstances, where the counselor was paid by the state, he was aware that his questioning was likely to elicit an incriminating response, and he was obligated to inform the district attorney of the information he learned. People v. Robledo, 832 P.2d 249 (Colo. 1992).

Circumstances sufficient to constitute custody for Miranda purposes. People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972); People v. Rodriguez, 645 P.2d 857 (Colo. App. 1982); People v. Viduya, 703 P.2d 1281 (Colo. 1985); People v. Jones, 711 P.2d 1270 (Colo. 1986); People v. Wallace, 724 P.2d 670 (Colo. 1986); People v. Kurts, 721 P.2d 1201 (Colo. App. 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); People v. Trujillo, 784 P.2d 788 (Colo. 1990); People v. Horn, 790 P.2d 816 (Colo. 1990); People v. Probasco, 795 P.2d 1324 (Colo. 1990); People v. Polander, 41 P.3d 698 (Colo. 2001).

Subsequent statement not tainted by prior refusal to make statement. When the police fully honor a defendant's refusal to make a statement, the fact of a prior refusal to make any statement should not taint the statement subsequently given voluntarily and with full advisement of rights. Dyett v. People, 177 Colo. 370, 494 P.2d 94 (1972).

Custodial interrogation when person arrested spontaneously changes his mind and volunteers that he wishes to talk does not violate the person's rights. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

Test for whether a person is in police custody is whether a reasonable person in the suspect's position would consider himself deprived of his freedom of action in any significant way. 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. Probasco, 795 P.2d 1324 (Colo. 1990); People v. Dracon, 884 P.2d 712 (Colo. 1994).

Defendant's inculpatory statement was properly suppressed where the police did not give the defendant Miranda warnings and the court found evidence that a reasonable person would have considered himself or herself deprived of freedom of action. The defendant was escorted into his apartment by police officers, other officers searching the apartment initially drew their weapons upon defendant's entrance, the defendant's movement was restricted to sitting on the recliner during the search and questioning, and an officer stood five feet from defendant during the search and questioning. People v. Moore, 900 P.2d 66 (Colo. 1995).

Under the "reasonable person" standard neither the interrogating officer's subjective state of mind nor the suspect's mental state is conclusive on the issue of whether a reasonable person in the situation would have considered the interrogation to be custodial. People v. Trujillo, 785 P.2d 1290 (Colo. 1990); People v. Hamilton, 831 P.2d 1326 (Colo. 1992); People v. Dracon, 884 P.2d 712 (Colo. 1994).

The court must consider the totality of the circumstances surrounding the interrogation in order to determine whether a reasonable person in the suspect's position would consider himself deprived of his freedom of action in a significant way. People v. Probasco, 795 P.2d 1330 (Colo. 1990); People v. Hamilton, 831 P.2d 1326 (Colo. 1992).

The validity of the right to remain silent must be resolved on the basis of the totality of circumstances surrounding a custodial interrogation. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

Prosecution must prove the validity of a waiver of Miranda rights by a preponderance of the evidence, and a waiver will be valid only if the totality of the circumstances surrounding an interrogation reveal both an uncoerced choice and the requisite level of comprehension on behalf of the suspect. People v. Al-Yousif, 49 P.3d 1165 (Colo. 2002); People v. Redgebol, 184 P.3d 86 (Colo. 2008).

A person acting as an interpreter must be sufficiently capable of accurately expressing the substance of the suspect's rights. People v. Mejia-Mendoza, 965 P.2d 777 (Colo. 1998); People v. Aguilar-Ramos, 86 P.3d 397 (Colo. 2004); People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Even though suppression order had been based on linguistic as well as cultural barriers, defendant's rudimentary understanding of the rights as read to him or her was sufficient to uphold his or her waiver. People v. Al-Yousif, 49 P.3d 1165 (Colo. 2002).

Every bilingual effort between an officer and a suspect need not be perfect in order to withstand scrutiny. A defendant need only minimally understand that he or she had the right to remain silent and to have counsel present and that anything he or she said could be used against him or her. People v. Aguilar-Ramos, 86 P.3d 397 (Colo. 2004).

Defendant did not make a knowing and intelligent waiver of his Miranda rights because of the combined effects of translator's inadequate translation, substantial miscommunication between parties, and defendant's cultural background and limited intellectual functioning. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Translator did not adequately translate because of her own lack of understanding of the meaning of the rights. Translation was also flawed because translator interrupted defendant, improperly summarized his responses, and did not always effectively explain instructions to him. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Miscommunication demonstrated that parties "frequently had no idea what the other was talking about". Miscommunication between parties took two forms: Interruptions by the interrogating officer and the interpreter, and unresponsive and nonsensical answers by the defendant. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Where defendant was functionally illiterate and had recently emigrated to the United States from a culture that had an entirely different cultural conception of legal disputes, defendant's cultural background and limited intellectual ability contributed to his inability to understand his Miranda rights. People v. Redgebol, 184 P.3d 86 (Colo. 2008).

Factors to be considered in determining the validity of a waiver of the right to remain silent include: (1) The lapse of time between an initial Miranda advisement and any subsequent interrogation; (2) whether the defendant or the interrogating officer initiated the interview; (3) whether and to what extent the interrogating officer reminded the defendant of his rights prior to the interrogation by asking him if he recalled his rights, understood them, or wanted an attorney; (4) the clarity and form of the defendant's acknowledgement and waiver, if any; and (5) defendant's background and experience with the criminal justice system. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

Defendant with alleged limited command of English knowingly, intelligently, and voluntarily waived his right to remain silent through his execution of a written waiver of his rights, his demonstration of his ability to converse in the English language, and the temporal proximity of a subsequent interview to the initial advisement of his rights. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

A rudimentary understanding of spoken paragraphs is sufficient to knowingly and intelligently waive one's Miranda rights. Even though defendant had a less-than-average ability to understand spoken paragraphs concerning abstract ideas, his comprehension level was analogous to someone falling "somewhere in the middle" of the spectrum between very limited and native fluency in a foreign language. People v. Thames, 2015 CO 18, 344 P.3d 891.

Knowing, intelligent, and voluntary waiver of Miranda rights not found where defendant did not in fact understand his rights. Defendant with limited mental capacity, no education, and limited ability in English and Spanish did not understand that he had rights and what those rights were and could not therefore knowingly and intelligently waive those rights. People v. Jiminez, 863 P.2d 981 (Colo. 1993).

Defendant did not knowingly, intelligently, and unequivocally invoke his right to silence prior to signing Miranda waiver form. People v. Richardson, 2 014 COA 50, 350 P.3d 905.

Trial court properly admitted defendant's statements into evidence because of defendant's knowing, voluntary, and intelligent waiver. Defendant received thorough advisements in Spanish at every stage, there was no evidence of coercive government conduct, and the different dialect of the translator produced little difficulty. People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002).

Knowing and intelligent waiver by developmentally delayed defendant found where: (1) Interrogating officers who initiated interview clearly adivsed defendant of her Miranda rights and reminded her of those rights by asking if she understood them; (2) the clarity and form of defendant's acknowledgment and waiver of rights was satisfactory; and (3) defendant, despite her diminished mental capacity, had adequate mental capacity to make knowing and intelligent waiver. People v. Kaiser, 32 P.3d 480 (Colo. 2001).

Where defendant was detained for ten-minute period after his refusal to talk, during which a police officer at the jail was doing the necessary paper work in order to book him, there was no unreasonableness nor any coercion, direct or indirect, so as to violate his rights. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

Half-hour delay between defendant's expression of willingness to talk and the arrival of a detective to do the questioning did not violate defendant's rights. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

The roadside questioning of a motorist detained pursuant to a routine traffic stop does not necessarily constitute "custodial interrogation" for purposes of Miranda warnings. Therefore, statements made prior to the Miranda warnings are admissible. People v. Archuleta, 719 P.2d 1091 (Colo. 1986).

As a general rule, routine traffic stops do not constitute custody for Miranda purposes even though the stop significantly curtails the freedom of action of the driver and the passengers. Given the non-coercive nature of a traffic stop, Miranda protections need not be applied unless the defendant's freedom of action is curtailed to a degree associated with formal arrest. People v. Reddersen, 992 P.2d 1176 (Colo. 2000).

Defendant was not in custody of state agents when he made statements to private security guard who had detained him. People v. Chastain, 733 P.2d 1206 (Colo. 1987).

Officer's request and retention of motorist's driver's license coupled with the instruction to exit the vehicle and stand next to the bridge while the search of the vehicle was conducted do not amount to custody because they are not tantamount to a formal arrest. People v. Stephenson, 159 P.3d 617 (Colo. 2007).

Custody issue is not disposed of by consideration of whether a reasonable police officer might have been imprudent in allowing an individual to leave where officer had reason to believe individual had committed a crime. People v. Sandoval, 736 P.2d 1201 (Colo. 1987).

Custody includes, but is not limited to, the situation in which the defendant is actually placed under arrest. People v. Probasco, 795 P.2d 1330 (Colo. 1990).

The totality of the circumstances could not amount to a finding that there was a custodial interrogation of the defendant on-duty policeman where defendant called for assistance, was asked to sit in his police car and nothing in record supported a claim that the defendant reasonably believed he was suspected of wrongdoing or that officer intended to interrogate him, or that a reasonable person in the defendant's position would have believed his freedom was curtailed in a meaningful way or that he was in custody. People v. Probasco, 795 P.2d 1330 (Colo. 1990).

Whether statement is made voluntarily is not an issue when statement is not made to law enforcement officials or their agents. People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

Defendant should have been advised of his Miranda rights because he was in custody when police officer proceeded to interrogate him after finding pot pipe during valid consensual pat down search. People v. Thomas, 839 P.2d 1174 (Colo. 1992).

Defendant's confession of sexual abuse of child to social worker at alcohol treatment facility which defendant was voluntarily admitted to was not given involuntarily as defendant was not in custody and no advisement of his rights was required. People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

Standards for questioning of suspects by police officers. Police officers are not trained lawyers and the interrogation of suspected felons need not be conducted with the same formality and decorum of a trial. Questioning by police officers of a suspected felon naturally takes the form of leading questions, as upon cross-examination in a trial, but interrogation conducted by third degree methods cannot be tolerated. Romero v. People, 170 Colo. 234, 460 P.2d 784 (1969).

Detective's questioning to elicit incriminating response constituted custodial interrogation. Where detective intended to elicit an incriminating response from the defendant, detective's initial question to the defendant, "Do you know why you are here?", constituted custodial interrogation. People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980).

Questioning of the defendant while hospitalized following a traffic accident did not constitute custodial interrogation. The trooper's question to defendant in the emergency room regarding whether or not he was the driver of the motorcycle involved in the accident is the type of general question which could have been asked at the accident scene as part of "general on-the-scene questioning as to facts" surrounding the accident. A statement in this context is not violative of the fifth amendment simply because the question was asked at the hospital rather than at the scene of the accident. People v. Milhollin, 751 P.2d 43 (Colo. 1988).

Questioning an inmate concerning an altercation between the inmate and another inmate constituted an on-the-scene investigation rather than an interrogation under Miranda and its progeny. People v. Denison, 918 P.2d 1114 (Colo. 1996).

Instead of the "free to leave" standard, a "restriction" standard is applied when questioning an inmate concerning an offense that was committed while the inmate was incarcerated. Under the "restriction" standard, four factors are to be considered: (1) The language used to summon the individual; (2) the physical surroundings of the interrogation; (3) the extent to which the prisoner is confronted with evidence of guilt; and (4) the additional pressure exerted to detain the prisoner. People v. Denison, 918 P.2d 1114 (Colo. 1996).

Trial court must make specific findings concerning the "totality of circumstances" when there are disputed issues of fact surrounding a confession. People v. Rosales, 911 P.2d 644 (Colo. App. 1995).

When determining voluntariness of a confession, statement by police officer instructing a suspect not to lie may constitute a threat. People v. Rosales, 911 P.2d 644 (Colo. App. 1995).

When detective asked if defendant lived in the home that was being searched and whether there was anything the police needed to know, defendant was not in custody. Police officers asked defendant to sit outside the home with other occupants of the home while officers searched it. When detective questioned defendant, the detective's tone was conversational and his brief questioning was not accusatory. There was no police overreaching or coercion that could have overborne defendant's will. Defendant's incriminating statement, therefore, was made voluntarily, and jury was properly allowed to consider it. People v. Mumford, 275 P.3d 667 (Colo. App. 2010), aff'd, 2012 CO 2, 270 P.3d 953.

A police officer may ask "Do you know what happened?" to parties not in custody. This does not constitute an interrogation but is within the officer's right to gather information relevant to the investigation. People v. Rosales, 911 P.2d 644 (Colo. App. 1995).

Defendant was lawfully detained pursuant to an investigatory stop based on reasonable articulable suspicion of domestic violence, and her liberty had not been infringed upon to an extent requiring the administration and waiver of Miranda rights prior to any interrogation. The minimally intrusive investigative methods employed by the officer during the several minutes between the initial contact and the defendant's admission to possessing contraband fell well within the range of techniques associated with diligently pursuing a limited investigatory stop. People v. Ball, 2017 CO 108, 407 P.3d 580.

The totality of the circumstances surrounding the interrogation, including the defendant's prior confession to the theft to the victim, the fact that the victim called the police while the defendant was present so that the police could deal with the defendant there, and the conversation between the victim and the police officer in the presence of the defendant prior to the interrogation, indicate custodial interrogation. Moreover, the officer's initial question to the defendant, "What's happening here between you and Mr. Worley?", was reasonably likely to elicit an incriminating response from the defendant. People v. Hamilton, 831 P.2d 1326 (Colo. 1992).

Constitutional right may be waived. The right to trial by jury, the right to counsel, the right not to incriminate one's self, and related matters are known as alienable constitutional rights or as rights in the nature of personal privilege for the benefit of the person who may seek their protection. Such rights, whenever assertable, may be waived. Geer v. Alaniz, 138 Colo. 177, 331 P.2d 260 (1958); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).

Where accused knows the general nature of the crime involved, an effective waiver by defendant of his constitutional rights can be made. People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972).

A defendant may waive his right against self-incrimination if done "knowingly and intelligently". People v. Stephens, 188 Colo. 8, 532 P.2d 728 (1975).

A defendant can waive his privilege against self-incrimination by his conduct before the grand jury. People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966).

Constitutional privilege against self-incrimination can be waived when an accused broadcasts his version of a criminal incident to others and then elects to take the witness stand and explain his conduct in the criminal transaction or in ensuing police investigation. People v. Storr, 186 Colo. 242, 527 P.2d 878 (1974).

At a contempt hearing, attorney's production of documents before the master had a chance to consider whether the fifth amendment privilege might prevent their compelled disclosure constituted a waiver of the privilege. People v. Razatos, 690 P.2d 970 (Colo. 1985).

A suspect may waive the right to remain silent as long as the waiver is knowingly, intelligently, and voluntarily made. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

Factors in determining applicability of Miranda procedural safeguards. The procedural safeguards required by Miranda are triggered only when a suspect is interrogated in a custodial setting. Inquiry should also be made into the voluntariness of statements made. People v. Corley, 698 P.2d 1336 (Colo. 1985).

Finding of waiver must be supported by evidence. Where at the close of an in camera hearing a trial court finds that a confession is voluntary and in compliance with Miranda requirements, that finding of a knowing and intelligent waiver must be supported by the evidence. Quintana v. People, 178 Colo. 213, 496 P.2d 1009 (1972).

Waiver of Miranda rights must be proven by preponderance of evidence. People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

Language of Miranda does not require express declination as an absolute from which, and only from which, a valid waiver of one's constitutional rights can flow. People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972).

Waiver may be implied. Knowing, intelligent and voluntary waiver of rights on part of accused may be implied from surrounding circumstances where there is no express declination. People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972).

Strong and unmistakable circumstances may establish effective equivalent to express waiver by showing clearly and convincingly that the accused did relinquish his constitutional rights knowingly, intelligently and voluntarily. Roybal v. People, 178 Colo. 259, 496 P.2d 1019 (1972).

The waiver need not be express; strong and unmistakable circumstances may suffice. People v. Stephens, 188 Colo. 8, 532 P.2d 728 (1975).

Miranda requirements satisfied under circumstances by nonverbal waiver. People v. Ferran, 196 Colo. 513, 591 P.2d 1013 (1978).

Voluntary testimony waives privilege. Where a potential defendant appears without subpoena, gives voluntary testimony before a grand jury, answers each question freely and without objection that the answer might tend to incriminate him after being advised of his right not to answer, the privilege against self-incrimination is waived. People v. Austin, 159 Colo. 445, 412 P.2d 425 (1966).

The initial declaration of a defendant when asked his name prior to his arrest -- "I'm the one you're looking for" -- was noncustodial and voluntarily made, and therefore not subject to the Miranda requirements. Jorgensen v. People, 178 Colo. 8, 495 P.2d 1130 (1972).

Statements freely made to police informant are not the product of any sort of coercion and are admissible. People v. Aalbu, 696 P.2d 796 (Colo. 1985).

Silence by police officer in response to statements made by an arrestee during arrest was not interrogation. Statements by the arrestee were the product of the arrestee's free and unconstrained choice. People v. Sharples, 807 P.2d 590 (Colo. 1991).

But valid waiver will not be presumed simply from silence of accused after warnings are given in in-custody interrogation or simply from the fact that a confession was in fact eventually obtained. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Roybal v. People, 178 Colo. 259, 496 P.2d 1019 (1972); People v. Garcia, 690 P.2d 869 (Colo. App. 1984).

Even if defendant were placed under arrest without probable cause, defendant knowingly and voluntarily waived his right to remain silent, and, thus, his second statement to police chief did not require suppression as product of illegal arrest, where probable cause to arrest existed within minutes after arrest and defendant received full and complete Miranda advisement before giving second statement. People v. Koolbeck, 703 P.2d 673 (Colo. App. 1985).

And defendant's refusal to sign written acknowledgment of waiver is not preclusive to knowing and intelligent waiver. People v. Stephens, 188 Colo. 8, 532 P.2d 728 (1975).

Waiver of fifth amendment rights not affected by presence of attorney desiring to meet with defendant. People v. Page, 907 P.2d 624 (Colo. App. 1995).

Broad privilege against self-incrimination announced in Miranda must be carefully confined in its application to the realm of coerced confessions and statements. People v. Ramirez, 119 Colo. 367, 609 P.2d 616 (1980).

Fruit of the poisonous tree. Third-party live-witness testimony is fruit under the poisonous tree doctrine under the fifth amendment of the U.S. Constitution. As such, the "fruits" analysis must be utilized in any case in which the fifth amendment privilege against self-incrimination is implicated. People v. Briggs, 709 P.2d 911 (Colo. 1985).

Where the attenuation doctrine is invoked to support the admissibility of a witness's evidence that is known to be derived from the "poisonous tree", it must be ascertained whether the relationship between the defendant's involuntary statements and the challenged evidence is so attenuated as to be free from contamination. People v. Briggs, 709 P.2d 911 (Colo. 1985).

The attenuation exception allows the admission of evidence obtained as the fruit of an illegal warrantless search or seizure when the connection between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint". People v. Lewis, 975 P.2d 160 (Colo. 1999).

The proper inquiry is whether any attenuating events intervened between the arrest and the interview. People v. Lewis, 975 P.2d 160 (Colo. 1999).

In determining whether a witness's extra-judicial statements, testimony, and tape-recorded conversation with the defendant are attenuated from the defendant's involuntary statements such that they are admissible, the trial court shall consider at least: (1) The role played by the defendant's involuntary statements in inducing the witness's cooperation; (2) the length of time between the involuntary statements and discovery of the challenged evidence; (3) whether the witness was a suspect; (4) the degree of free will exercised by the witness; and (5) the time, place, and manner of all of the questioning of the witness. People v. Briggs, 709 P.2d 911 (Colo. 1985).

Because the fifth amendment of the U.S. Constitution is directly concerned with the introduction of tainted evidence at trial, balancing the factors of flagrancy and purpose of official misconduct against the deterrent effect of the exclusionary rule is not an appropriate consideration to be taken into account by the trial court in consideration. People v. Briggs, 709 P.2d 911 (Colo. 1985).

Whether the agreement between the witness and the state is characterized as a promise of immunity or a grant of immunity is critical to an attenuation analysis, particularly of the free will criterion. Because the consequences of the characterization are different, no per se rule that immunized testimony is never an act of free will can be established. People v. Briggs, 709 P.2d 911 (Colo. 1985).

Even though the witness had been given a conditional promise of immunity, his evidence would have been admissible if it had been demonstrated that the evidence would have been discovered as a matter of course if independent investigations were allowed to proceed. People v. Briggs, 709 P.2d 911 (Colo. 1985).

Even if the attenuation doctrine did not permit the admission of the witness's evidence, such evidence could have been properly admitted if it had been demonstrated, at the suppression hearing, that the evidence would have been inevitably discovered. People v. Briggs, 709 P.2d 911 (Colo. 1985).

When Miranda rights not required to be readvised. Readvisement not required to be given to defendant when subject of interrogation changes because defendant was adequately forewarned that subject matter of interrogation was about to change from sexual assault to armed robbery and there was no evidence of improper police conduct. People v. Longoria, 717 P.2d 497 (Colo. 1986).

Awareness of all possible subjects of questioning in advance of interrogation is not relevant to determining whether suspect voluntarily, knowingly, and intelligently waived his privilege against self-incrimination. Colo. v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 809 (1987).

Even though it is better practice for the police to advise a suspect before each interrogation, there is no categorical constitutional requirement that Miranda warnings must be repeated before every interrogation in order for a suspect to validly waive his Miranda rights. People v. Hopkins, 774 P.2d 849 (Colo. 1989).

Waiver will not automatically be held invalid simply because the advisement was made only by a written document. Miranda warnings need not be given in any particular format so long as they reasonably convey a suspect's rights. People v. Elangnaf, 829 P.2d 484 (Colo. App. 1991).

Fellow inmate of defendant, who gained confidence of defendant and to whom defendant purportedly described crime and asked inmate to kill identifying witness, did not have status of police informant at time of confession so as to violate defendant's right to effective assistance of counsel during critical stage of criminal proceeding, even though inmate had acted as paid informant with regard to other cases. People v. Wieghard, 727 P.2d 383 (Colo. App. 1986).

Tape recording of defendant's conversation with accomplice made without his knowledge in the back of police car did not violate his fifth amendment right against self-incrimination since he was not responding to any sort of police coercion and it was not an interrogation within the meaning of Miranda and its progeny. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).

Defendant's statements to witness who was former police officer was properly admitted into evidence where police involvement was not so extensive as to create an agency relationship between the witness and the police. People v. Topping, 764 P.2d 369 (Colo. App. 1988).

Any evidence that accused was threatened, tricked, or cajoled into waiver will show that the defendant did not voluntarily waive his privilege. Redmond v. People, 180 Colo. 24, 501 P.2d 1051 (1972).

Compulsion to confess, whether induced physically or mentally, vitiates any confession. Lewis v. People, 174 Colo. 334, 483 P.2d 949 (1971).

An officer's comment that the police had found incriminating evidence and that defendant should probably be cooperative did not constitute either a threat or a promise. People v. Bostic, 148 P.3d 250 (Colo. App. 2006).

Defendant's incriminating statement should not have been allowed into evidence where defendant was not advised of his right to an attorney in connection with an independent criminal proceeding. People v. Stamus, 902 P.2d 936 (Colo. App. 1995).

Psychologically coerced statement involuntary. 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).

Evidence of involuntariness. Whether a statement of an accused can be excluded on the ground that it is involuntary generally depends on direct testimony of threats or other coercion or surrounding facts and circumstances which give rise to a conclusion that the statement was involuntary. Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959).

Where defendant told focus of attention on coconspirator. A Miranda warning was meaningless after the defendant was told that parts of his statement would not be used and that the focus of attention was not upon him, but upon a coconspirator, because with promises of this type that prompt a confession, it is impossible to determine what parts of the confession were truly voluntary and those segments which were, at best, inadmissible. Redmond v. People, 180 Colo. 24, 501 P.2d 1051 (1972).

In camera hearing required on voluntariness. When an objection is properly raised at trial challenging the voluntariness of a confession, the trial court is obligated to conduct an in camera hearing to determine voluntariness, regardless of whether the confession was made to a police officer or to a private individual. Hunter v. People, 655 P.2d 374 (Colo. 1982).

Psychological pressures may render confession involuntary. Psychological as well as physical pressures may be brought to bear on a suspect to induce his confession and under some circumstances may render it involuntary. People v. Freeman, 668 P.2d 1371 (Colo. 1983).

The possibility of deportation was a uniquely terrifying prospect for defendant, amplifying detective's threats to a level of impermissible coercion and making defendant's statements involuntary. People v. Ramadon, 2013 CO 68, 314 P.3d 836.

Mental disorder of defendant. Taking of statements of defendant who, while mentally ill, approached police officer and confessed to homicide after being advised of his Miranda rights and without any coercion on the part of the police did not violate due process. Colo. v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).

A finding of involuntariness of a statement cannot be supported solely by evidence that the statement was impelled by a serious mental disorder. People v. Rhodes, 729 P.2d 982 (Colo. 1986).

Fact that defendant may have been psychotic when she made inculpatory statements did not render statements involuntary in the absence of showing that statements were induced by coercive police activity. People v. Rhodes, 729 P.2d 982 (Colo. 1986).

The mental condition of the defendant is a relevant consideration in determining whether a defendant effectively waived his Miranda rights. People v. Clements, 732 P.2d 1245 (Colo. App. 1986).

The degree of a person's intoxication is relevant to his mental state and may be pertinent in determining a statement's voluntariness. People v. Rivers, 727 P.2d 394 (Colo. App. 1986).

Intoxication alone does not automatically render statements involuntary, or invalidate an otherwise valid waiver of Miranda rights. People v. Martin, 30 P.3d 758 (Colo. App. 2000).

It is the defendant's obligation to ask the trial court to reconsider a pretrial suppression ruling based on evidence subsequently adduced at trial. People v. Martin, 30 P.3d 758 (Colo. App. 2000).

Where issue of defendant's intoxication at time of Miranda waiver was not raised at pretrial suppression hearing, and evidence of intoxication presented at trial was not of such quality as to suggest defendant's statements would have been suppressed had the evidence been presented at the suppression hearing, the trial court was not required to reconsider, sua sponte, its earlier denial of the motion to suppress the statements. People v. Martin, 30 P.3d 758 (Colo. App. 2000).

Simply because the defendant became upset when learning of the victim's death was not a sufficient basis for the trial court's conclusion that defendant's statement was involuntary. People v. Smith, 716 P.2d 1115 (Colo. 1986).

Privilege against self-incrimination is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion. Colo. v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986).

Where there was no evidence of threats or coercion and where the defendant was adequately advised of the subject matter of the interview at the time of waiver and spoke freely and without reservation, circumstances were sufficient to show knowing, intelligent, and voluntary waiver. Jones v. People, 711 P.2d 1270 (Colo. 1986).

And the presence or absence of official misconduct as factors in the determination of whether a statement is voluntary must be considered within the totality of the circumstances. People v. Cooper, 731 P.2d 781 (Colo. App. 1986).

Police officers' false representation regarding extent of their knowledge and evidence of defendant's participation in attempted robbery and murder did not make defendant's statement involuntary, absent showing that other aspects of the interrogation were improper. People v. Cooper, 731 P.2d 781 (Colo. App. 1986).

Coercive police activity is a necessary predicate to the finding that a confession is not voluntary. People v. Rhodes, 729 P.2d 982 (Colo. 1986).

Defendant's confession to murder made to county court judge during court appearance after having been fully apprised of his rights was properly admitted in murder trial, even though statements were made subsequent to tainted confession, as second confession was voluntary, where factors which necessitated suppression of tainted confession had dissipated by the time defendant appeared before county court. People v. Freeman, 739 P.2d 856 (Colo. App. 1987).

Mere silence by law enforcement officers as to subject matter of interrogation is not "trickery" sufficient to invalidate suspect's waiver of Miranda rights. Colo. v. Spring, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 809 (1987).

C ritical to any finding of involuntariness is the existence of coercive governmental conduct, physical or mental, that plays a significant role in inducing a confession or inculpatory statement. People v. Gennings, 808 P. 2 d 839 ( C olo. 1991); People v. Cisneros, 2 014 COA 49, 356 P.3d 877.

Trial court erroneously suppressed statements of defendant made to polygraph examiner after polygraph test since, in considering the totality of the circumstances, the examiner's statements to defendant did not constitute coercive police activity and defendant had waived his Miranda rights. People v. Hutton, 831 P.2d 486 (Colo. 1992).

Interrogation not coercive and defendant's statements voluntary. Simply saying that "it would be in defendant's best interest" to talk is not enough of a threat or promise to amount to police coercion. Under the totality of the circumstances, there was no coercive police conduct rendering any part of the interrogation questions and answers inadmissible. People v. Zadran, 2013 CO 69, 314 P.3d 830.

When a defendant knowingly and intelligently waived his Miranda rights, knew he was free to leave an interview, and confessed to committing a crime during the course of a conversational, friendly interview devoid of coercive promises or threats, he gave his statements voluntarily. People in Interest of Z.T.T., 2017 CO 48, 394 P.3d 700.

A suspect may waive his right to remain silent as long as the waiver is knowingly, intelligently, and voluntarily made. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

In light of the totality of the circumstances there was no error in the trial court's denial of the motion to suppress the statements of defendant and the record supported a conclusion that the prosecution met its burden of proof to show the validity of the defendant's waiver of his rights by a preponderance of the evidence. The defendant's execution of the written waiver of his rights, his demonstration of his ability to converse in the English language, and the temporal proximity of the subsequent interview to the initial advisement belied his assertion that the waiver was not given knowingly, intelligently, and voluntarily. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

A confession or inculpatory statement will not be deemed involuntary unless there is evidence of some form of coercive governmental action that plays a significant role in inducing the statement. People v. Branch, 805 P.2d 1075 (Colo. 1991).

There need not be evidence of physical abuse or threats directed against the defendant for a confession or inculpatory statement to be deemed involuntary. Subtle forms of psychological coercion, when utilized by a governmental agent, can play a significant role in a court's inquiry into constitutional voluntariness. People v. Branch, 805 P.2d 1075 (Colo. 1991).

Burden of proving waiver is on government. If interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Neitz v. People, 170 Colo. 428, 462 P.2d 498 (1969).

The burden of establishing waiver rests upon the people. People v. Stephens, 188 Colo. 8, 532 P.2d 728 (1975).

The burden is upon the people to show attendant circumstances sufficient from which a knowing and intelligent waiver may be implied. Roybal v. People, 178 Colo. 259, 496 P.2d 1019 (1972).

And burden of proof of admissibility of confession is on people. Neitz v. People, 170 Colo. 428, 462 P.2d 498 (1969); People v. Rhodes, 729 P.2d 982 (Colo. 1986).

But it does not require corroboration of witnesses who testify for people on the issue of admissibility, as when the officer is alone with the defendant when a waiver is signed. Neitz v. People, 170 Colo. 428, 462 P.2d 498 (1969).

The prosecution must establish by a preponderance of the evidence that a defendant's confession or inculpatory statement to a governmental agent was voluntarily made before such confession or statement may be admitted into evidence at trial. People v. Branch, 805 P.2d 1075 (Colo. 1991).

When voluntariness of defendant's statement challenged, prosecution must show a preponderance of the evidence that, under the totality of the circumstances, the statement was made voluntarily. People v. Hutton, 831 P.2d 486 (Colo. 1992); People v. Dracon, 884 P.2d 712 (Colo. 1994); People v. Trujillo, 938 P.2d 117 (Colo. 1997).

Exclusion of incriminating statements given without assistance of counsel. Under the holding of Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), where the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that tends itself to eliciting incriminating statements, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied the assistance of counsel and no statement elicited by the police during the interogation may be used against him at a criminal trial. Bean v. People, 164 Colo. 593, 436 P.2d 678 (1968); Nez v. People, 167 Colo. 23, 445 P.2d 68 (1968).

If written confession is direct exploitation of prior illegality, it is inadmissible. People v. Algien, 180 Colo. 1, 501 P.2d 468 (1972).

When confession will be admitted. Law enforcement officers in their efforts to solve a murder case, and in the interest of justice, must have a reasonable latitude in arresting and questioning one justifiably suspected, and if in so doing the investigating authorities give proper consideration to the comfort and well-being of the suspected person, and conduct themselves in a manner free from threats, promises, or mistreatment of the suspect, a confession thus secured may be received in evidence, even though it was the result of several extended periods of interrogation of the accused. Romero v. People, 170 Colo. 234, 460 P.2d 784 (1969).

Two-step analysis required to resolve suppression motion based on an allegedly inadequate Miranda advisement: First, the court must determine whether the defendant was adequately warned of his privilege against self-incrimination and his right to counsel; and, second, the court must determine whether the defendant knowingly, intelligently, and voluntarily waived these rights. People v. Chase, 719 P.2d 718 (Colo. 1986).

To be admissible, confession must be voluntary. Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959); Gallegos v. People, 145 Colo. 53, 358 P.2d 1028 (1960), rev'd on other grounds, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962); Dyett v. People, 177 Colo. 370, 494 P.2d 94 (1972); Gimmy v. People, 645 P.2d 262 (Colo. 1982).

To be admissible, a confession must be free and voluntary; that is, it must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight. People v. Pineda, 182 Colo. 385, 513 P.2d 452 (1973); People v. Raffaelli, 647 P.2d 230 (Colo. 1982); People v. Rhodes, 729 P.2d 982 (Colo. 1986); People v. Clements, 732 P.2d 1245 (Colo. App. 1986); People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

The trial court did not err in admitting incriminating statements made by defendant subsequent to his indication of a desire to remain silent, where defendant was given a proper warning, knew what his rights were, and then voluntarily waived those constitutional rights. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972).

No rule bars the admissibility of a defendant's voluntary incriminating statement made in answer to a question from his friend. No holding of the United States supreme court interdicts such an extrajudicial statement, where there is nothing in the record to indicate that the statement was made in response to any process of interrogation initiated by the police. Washington v. People, 169 Colo. 323, 455 P.2d 656 (1969).

Where the defendant voluntarily and spontaneously made statements as to his willingness to plead guilty on certain conditions to a jailer who, at the time, was engaged in an activity wholly unrelated to the defendant, if the defendant chooses to make such spontaneous declarations as these, nothing is present to bar the people from presenting them to a jury for their consideration. Lewis v. People, 174 Colo. 334, 483 P.2d 949 (1971).

The fact that no advisement form was signed by defendant after the first advisement of his rights, and that defendant did not expressly decline the verbal offer of counsel did not render his statements concerning his dual identity inadmissible where he was not coerced or forced to give the statements and the record reveals the he may not have been responding to interrogation at all but may simply have responded to preliminary statements by the police officer concerning his identification. Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972).

The issue of the voluntariness of defendant's statement remains the threshold factor in determining whether that statement can even be offered for purposes of impeachment. People v. Salazar, 44 Colo. App. 242, 610 P.2d 1354 (1980), rev'd on other grounds, 627 P.2d 246 (Colo. 1981).

Statements obtained through promises, threats, violence, or any other improper influence may not be admissible. People v. Cummings, 706 P.2d 766 (Colo. 1985).

To be admissible in evidence, a confession must be shown to be free and voluntary, made without threats of violence or promises of special consequences, and made without the exertion of improper influences. People v. Bookman, 646 P.2d 924 (Colo. 1982); People v. Smith, 716 P.2d 1115 (Colo. 1986).

Once the requirements for a valid waiver are satisfied, then whether the statement was voluntarily made must be considered. The test of voluntariness, in this context, means that the statement was the product of a rational intellect and a free will and was not the result of any force, threats, promises, or other forms of undue influence that affected the defendant's decision to speak. People v. Chase, 719 P.2d 718 (Colo. 1986).

The goal of the voluntariness inquiry is to determine whether the challenged statement was the product of a rational intellect and a free will. People v. Rhodes, 729 P.2d 982 (Colo. 1986).

To be admissible for any purpose, confessions, admissions, and statements given by a defendant must be voluntary. People v. Amato, 631 P.2d 1172 (Colo. App. 1981); People v. Garcia, 690 P.2d 869 (Colo. App. 1984); People v. Kurts, 721 P.2d 1201 (Colo. App. 1986); People v. Jensen, 747 P.2d 1247 (Colo. 1987).

Whether an alleged promise by a police detective to keep defendant's girlfriend out of homicide investigation rises to the level of coercion that would render the defendant's confession involuntary is a question of fact for trial court's determination on remand. People v. Sparks, 748 P.2d 795 (Colo. 1988).

The prosecution may not use a defendant's involuntary statement for any purpose at trial. People v. Branch, 805 P.2d 1075 (Colo. 1991).

Confessions, admissions, and statements given by a defendant, unless voluntary, are not admissible for any purpose. People v. Salazar, 44 Colo. App. 242, 610 P.2d 1354 (1980), rev'd on other grounds, 627 P.2d 246 (Colo. 1981).

Defense counsel's failure to challenge voluntariness of confession in the trial court that counsel challenged on appeal resulted in forfeiture, instead of waiver, and required plain error review. Cardman v. People, 2019 CO 73, 445 P.3d 1071.

Where defendant's will was overborne by police coercion, defendant's statements were involuntarily made. It was plain error for the court to admit them. Cardman v. People, 2019 CO 73, 445 P.3d 1071.

Confession otherwise admissible is not rendered inadmissible simply because it is oral, and not written. Moore v. People, 164 Colo. 222, 434 P.2d 132 (1967).

When taint of illegal questioning is purged. The taint of initial illegal questioning is purged if sufficient time has passed, if there are sufficient intervening circumstances between the statements, and if there was a valid purpose to the official misconduct which led to the suppression of the earlier statement. People v. Mann, 646 P.2d 352 (Colo. 1982).

However, the United States supreme court in Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985), ruled that a careful and thorough administration of Miranda warnings may cure the condition that rendered the previous unwarned statement inadmissible. People v. Harris, 703 P.2d 667 (Colo. App. 1985).

Reading Miranda rights not necessarily sufficient to purge taint of initial illegal questioning. Simply reading a defendant his Miranda rights is not necessarily sufficient to purge the taint of an initial illegal questioning by breaking the causal chain between that questioning and the statement obtained subsequent to the time the defendant received his Miranda rights. People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980); People v. Jones, 828 P.2d 797 (Colo. 1992).

But taint of illegal questioning on a written confession is not purged where there was no break in time between the invalid interrogation and the written confession, there was no change in location and no change in persons involved, and police officer's coercive and threatening questions were designed to elicit incriminating statements. People v. Thomas, 839 P.2d 1174 (Colo. 1992).

Police threat to defendant's family relationship operated in a continuum through the interview at which defendant confessed, and nothing occurred that relieved or removed the taint of illegality. Because trial court's finding of fact and conclusion of law that threat had a significant role in inducing defendant's confession is supported by the evidence, trial court's suppression order upheld. People v. Medina, 25 P.3d 1216 (Colo. 2001).

Only if the defendant's initial statement was voluntary in a constitutional sense and his subsequent statements were preceded by a valid waiver of Miranda rights, and were otherwise constitutionally voluntary, would the defendant's subsequent statements be admissible under Oregon v. Elstad. People v. Hamilton, 831 P.2d 1326 (Colo. 1992).

Under Oregon v. Elstad, a finding of constitutional voluntariness with respect to the defendant's initial and subsequent inculpatory statements is fundamental to a resolution of the constitutional admissibility of those statements. People v. Hamilton, 831 P.2d 1326 (Colo. 1992); People v. Trujillo, 938 P.2d 117 (Colo. 1997).

Admissible statement not invalidated for noncompliance with Crim. P. 5. If a statement is admissible as being in compliance with Miranda supreme court decision, it should not be invalidated because of noncompliance with Crim. P. 5 if the record also shows, as it does here, that there was no studied attempt to avoid taking the defendant before a county judge. People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972).

Failure to comply with Crim. P. 5 did not result in prejudice to the defendant, inasmuch as the defendant was properly advised as required by Miranda and thereafter chose to make incriminating statements rather than to remain silent. People v. Gilmer, 182 Colo. 96, 511 P.2d 494 (1973).

Rules governing admissibility of confession as outlined in Miranda, are not retrospective in operation. Arthur v. People, 165 Colo. 63, 437 P.2d 41 (1968).

Even though defendant's initial voluntary statements to police officer prior to Miranda warnings were not admissible, defendant's subsequent confession, made after belated Miranda warnings were read to defendant, was admissible where there was no evidence that either the environment or the manner of the initial interrogation was coercive, and, although belated, the reading of defendant's rights was complete and was repeated three times. People v. Harris, 703 P.2d 667 (Colo. App. 1985).

If a pre-advisement statement is voluntary, Miranda warnings given and validly waived before a post-advisement statement render the later statement admissible. People v. Verigan, 2 015 COA 13 2 , __ P.3d __, aff'd on other grounds, 2018 CO 53, 420 P.3d 247; People v. Triplett, 2016 COA 87, 411 P.3d 1054.

The absence of a Miranda warning does not require the suppression of a statement given by the defendant in the presence of the defendant's lawyer. People v. Mounts, 784 P.2d 792 (Colo. 1990).

A defendant's statement which is constitutionally voluntary but which nevertheless has been obtained in violation of procedural safeguards designed to ensure protection of the defendant's privilege against self-incrimination and defendant's right to counsel may not be used by the prosecution as substantive evidence in its case-in-chief but may be used to impeach the defendant's testimony at trial. People v. Branch, 805 P.2d 1075 (Colo. 1991).

When a defendant does not testify, the defendant's voluntary, unwarned custodial statements may not be used either to rebut the defendant's theory of defense or to impeach a witness other than the defendant. People v. Trujillo, 49 P.3d 316 (Colo. 2002) (following James v. Illinois, 493 U.S. 307 (1990)).

Court must make findings that statements voluntary and admissible. Before a trial court may find that statements to which objections have been made are admissible in evidence, the court must make findings of fact and law that the statements under consideration were voluntarily given with full understanding of the accused's rights. Martinez v. People, 174 Colo. 125, 482 P.2d 375 (1971).

Preferred practice is for the trial judge to make clear and explicit findings as to the voluntariness of a confession at the conclusion of the in-camera hearing. People v. Apple, 186 Colo. 180, 526 P.2d 311 (1974).

Whether or not a confession is voluntary is primarily a question for a trial court. Its admissibility is largely within the discretion of that court, and on review, its ruling will not be disturbed, unless there has been a clear abuse of discretion. Castro v. People, 140 Colo. 493, 346 P.2d 1020 (1959).

Before a criminal defendant's extrajudicial statement is admissible as evidence against him, a trial court must find beyond a reasonable doubt that the defendant was fully informed of his constitutional rights, and that he intelligently and expressly waived them. People v. Vigil, 175 Colo. 373, 489 P.2d 588 (1971).

The question of admissibility is for the court. The jury is not permitted to pass on that question. Gallegos v. People, 145 Colo. 53, 358 P.2d 1028 (1960), rev'd on other grounds, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962); Deeds v. People, 747 P.2d 1266 (Colo. 1987).

Trial court's findings of fact concerning voluntariness shall be given deference by appellate court. People v. Hutton, 831 P.2d 486 (Colo. 1992).

Where a suppression order is based on conclusions that statements were the product of an illegal arrest and of a custodial interrogation not preceded by Miranda warnings, a district court must make sufficient findings of fact and conclusions of law to identify each of the statements at issue and to permit appellate review of its rulings with regard to whether the statements must be suppressed. People v. Haurey, 859 P.2d 889 (Colo. 1993).

And must consider totality of facts and conduct of accused. In passing on whether a statement is voluntary and whether the accused waived his right to counsel, the court must consider and examine the totality of the facts and circumstances of the case, and also the conduct of the accused. Duncan v. People, 178 Colo. 314, 497 P.2d 1029 (1972); People v. York, 189 Colo. 16, 537 P.2d 294 (1975).

The totality of the circumstances is to be considered by the trial court in determining whether a confession is voluntary. Gimmy v. People, 645 P.2d 262 (Colo. 1982); People v. Bookman, 646 P.2d 924 (Colo. 1982); People v. Sandoval, 685 P.2d 215 (Colo. App. 1983); Kwiatkowski v. People, 706 P.2d 407 (Colo. 1985); People v. Cummings, 706 P.2d 766 (Colo. 1985); People v. Hutton, 831 P.2d 486 (Colo. 1992).

The fact that a statement is made during a polygraph examination does not automatically render it involuntary; rather, the examination is a factor to be considered in determining voluntariness under the circumstances. People v. Cummings, 706 P.2d 766 (Colo. 1985).

A trial court must consider all of the circumstances surrounding the making of the statement, and the mental condition of the person making the statement at the time the statement is made is one of the factors relevant to the question of voluntariness. People v. Rhodes, 729 P.2d 982 (Colo. 1986).

Under the totality of the facts and circumstances, the defendant's statements were voluntary since the defendant willingly accompanied police officers to the police station where he was reminded of his Miranda rights before each interview and was repeatedly told he was free to leave. People v. Cummings, 706 P.2d 766 (Colo. 1985); People v. Sandoval, 736 P.2d 1201 (Colo. 1987).

Under the totality of the circumstances, a reasonable person in defendant's position would not have considered himself deprived of his freedom of action to the degree associated with a formal arrest. People v. Smith, 312 P.3d 1173 (Colo. App. 2010), rev'd on other grounds, 2014 CO 10, 318 P.3d 472.

In determining whether a confession is voluntary, the totality of the circumstances must be considered, and an appellate court is bound by the trial court's factual findings in that regard when supported by adequate evidence in the record and will not lightly disturb the trial court's findings. People v. Harris, 703 P.2d 667 (Colo. App. 1985); People v. Rivers, 727 P.2d 394 (Colo. App. 1986).

In determining voluntariness, the trial court is required to access the totality of the circumstances surrounding the statement, including the atmosphere and events surrounding the elicitation of the statement, the conduct of the defendant before and during the interrogation, and the defendant's mental condition at the time the statement is made. People v. Clements, 732 P.2d 1245 (Colo. App. 1986).

Term "totality of circumstances" refers to the significant details surrounding and inherent to the interrogation. People v. Hutton, 831 P.2d 486 (Colo. 1992).

Among the circumstances court examines in determining the voluntariness of a confession are: Whether the defendant was in custody; whether the defendant was free to leave; whether the defendant was aware of the situation; whether the police read Miranda rights to the defendant; whether the defendant understood and waived Miranda rights; whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation; whether the statement was made during the interrogation or volunteered later; whether the police threatened defendant or promised anything directly or impliedly; the method or style of the interrogation; the defendant's mental and physical condition just prior to the interrogation; the length of the interrogation; the location of the interrogation; and the physical conditions of the location where the interrogation occurred. People v. Medina, 2 5 P.3d 1 2 16 ( C olo. 2001); People v. McIntyre, 2014 C O 39, 325 P.3d 583; People v. Springsted, 2016 COA 188, 410 P.3d 702.

In analyzing the totality of the circumstances, factors to consider include, but are not limited to: The time interval between the initial Miranda advisement and any subsequent interrogation; whether the defendant or the interrogating officer initiated the interview; whether and to what extent the interrogating officer reminded the defendant of his rights prior to the interrogation by asking him if he recalled his rights, understood them, or wanted an attorney; the clarity and form of the defendant's acknowledgment and waiver, if any; the background and experience of the defendant in connection with the criminal justice system; any language barriers encountered by a defendant; and the defendant's age, experience, education, background, and intelligence. People v. Kaiser, 32 P.3d 480 (Colo. 2001).

The totality of the circumstances test is applied in People v. Lesko, 701 P.2d 638 (Colo. App. 1985); People v. Lytle, 704 P.2d 331 (Colo. App. 1985); People v. Robinson, 713 P.2d 1333 (Colo. App. 1985); People v. Pearson, 725 P.2d 782 (Colo. 1986); People v. Jensen, 747 P.2d 1247 (Colo. 1987); People v. Bowman, 812 P.2d 725 (Colo. App. 1991); People v. Dracon, 884 P.2d 712 (Colo. 1994); People v. Al-Yousif, 49 P.3d 1165 (Colo. 2002); People v. Aguilar-Ramos, 86 P.3d 397 (Colo. 2004); People v. Clark, 2020 CO 36, __ P.3d __.

Including any suggestion of voluntariness from defendant. The premise that the court must proceed to determine voluntariness of defendant's confession independent of any suggestion thereof from the defendant is faulty. Ciccarelli v. People, 147 Colo. 413, 364 P.2d 368 (1961).

Voluntariness of confession induced by promise. Generally, for confessions induced by the promises of private parties to be involuntary, the promises must be made by one with apparent power to perform the promise, such as the prosecuting attorney or one representing him. People v. Amato, 631 P.2d 1172 (Colo. App. 1981).

People bear the burden of showing that incriminating statements are result of fully voluntary action. People v. Allen, 185 Colo. 190, 523 P.2d 131 (1974).

Where the question was whether the defendants' statement to the authorities was voluntary, the burden of proof lies with the people, for it must be shown by the preponderance of the evidence that the statements were made voluntarily. People v. Martinez, 185 Colo. 187, 523 P.2d 120, aff'd, 186 Colo. 225, 526 P.2d 1325 (1974).

Once the issue of voluntariness has been raised, the burden is upon the state to establish that the statement in question was voluntarily given. People v. Salazar, 44 Colo. App. 242, 610 P.2d 1354 (1980), rev'd on other grounds, 627 P.2d 246 (Colo. 1981).

Prosecution must prove by clear and convincing evidence that a defendant voluntarily, knowingly, and intelligently waived his Miranda rights. People v. Clements, 732 P.2d 1245 (Colo. App. 1986).

Waiver of Miranda rights need only be proven by a preponderance of the evidence. Colo. v. Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); People v. Sandoval, 736 P.2d 1201 (Colo. 1987).

The burden is on the prosecution to show voluntariness by a preponderance of the evidence. Gimmy v. People, 645 P.2d 262 (Colo. 1982); People v. Raffaelli, 647 P.2d 230 (Colo. 1982); People v. Corley, 698 P.2d 1336 (Colo. 1985); People v. Cummings, 706 P.2d 766 (Colo. 1985); People v. DeBaca, 736 P.2d 25 (Colo. 1987); Deeds v. People, 747 P.2d 1266 (Colo. 1987); People v. Gennings, 808 P.2d 839 (Colo. 1991); People v. Bowman, 812 P.2d 725 (Colo. App. 1991); People v. Hutton, 831 P.2d 486 (Colo. 1992).

Two-step procedure is proper to resolve issue of voluntariness of confession: First, the trial judge must determine whether the confession is voluntary; and second, if the confession is voluntary and is admitted into evidence, the trial judge should instruct the jury on the weight to be given the confession. People v. Shearer, 181 Colo. 237, 508 P.2d 1249 (1973).

Where the defendant initiates the contact with the police, the resulting promises of leniency do not render the statement involuntary. People v. Mounts, 784 P.2d 792 (Colo. 1990).

Stereotype warning cannot be sole basis of court's determination that statement was voluntary and that the defendant was aware of his rights and waived and relinquished his rights. People v. Moreno, 176, Colo. 488, 491 P.2d 575 (1971).

Question should be considered as to substance rather than form. The question of constitutional inhibition of self-incrimination whether raised by motion or plea should be considered as to its substance rather than its form. People v. Clifford, 105 Colo. 316, 98 P.2d 272 (1939).

Circumstances demonstrating effective waiver of constitutional rights by defendant. Massey v. People, 179 Colo. 167, 498 P.2d 953 (1972); People v. Weaver, 179 Colo. 331, 500 P.2d 980 (1972).

Where officers twice gave defendant complete Miranda warnings after arrest and defendant twice stated he understood his rights yet failed to exercise them, and where confession immediately followed second warning, circumstances were sufficient to show knowing, intelligent and voluntary waiver. People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972).

Where counsel fails to object on direct examination to testimony that may have been a transgression of Miranda, but cross-examines on the subject, there is a waiver. People v. Sanchez, 180 Colo. 119, 503 P.2d 619 (1972).

When statement is reversible error. Even if a statement allowed into evidence can be construed as a violation of the defendant's constitutional right, reversible error exists only under circumstances in which the prosecution directs the attention of the jury to the defendant's silence and uses it as a means of inferring guilt. People v. Key, 185 Colo. 72, 522 P.2d 719 (1974); People v. Benevidez, 679 P.2d 125 (Colo. App. 1984).

Defendant's statement to police made after request for counsel was result of unlawful interrogation, and, since such statement contained the only evidence of an element of the crime (forgery), use of the statement at trial constituted prejudicial error. People v. Johnson, 712 P.2d 1048 (Colo. App. 1985).

Defendant was in custody for Miranda purposes and was exposed to risk of self-incrimination when initially questioned by police officer prior to being advised of Miranda rights and the officer testified that defendant was not free to leave, the undisputed facts do not allow an inference that the defendant was not in custody and the police questioning was reasonably likely to evoke an incriminating response. People v. Harris, 703 P.2d 667 (Colo. App. 1985).

Defendant was in custody for purposes of Miranda. Considering the totality of the circumstances, by the time police officers began questioning defendant about illegal items found in the car, defendant's freedom of action had been curtailed to the degree associated with a formal arrest and defendant was in custody for Miranda purposes. People v. Verigan, 2 015 COA 13 2 , __ P.3d __, aff'd on other grounds, 2018 CO 53, 420 P.3d 247.

Evidence held sufficient to support finding of voluntary confession. People v. Valencia, 181 Colo. 36, 506 P.2d 743 (1973).

And questioning a suspect over a period of time does not automatically render a statement involuntary. People v. Cummings, 706 P.2d 766 (Colo. 1985).

But custody alone is not sufficient to render statements involuntary. People v. Cummings, 706 P.2d 766 (Colo. 1985).

Whether suspect clearly invoked the right to remain silent is determined under a reasonableness standard. Before the police must scrupulously honor a suspect's right to remain silent, the suspect must clearly articulate that right so that a reasonable police officer in the circumstances would understand the suspect's words and conduct to mean that the suspect wants to exercise his or her right to cut off further questioning. People v. Arroya, 988 P.2d 1124 (Colo. 1999).

The fact that the subject of the second interrogation is the same as the first has significance only as it bears on the overriding question of whether the defendant's right to cut off questioning at any time was scrupulously honored. People v. Quezada, 731 P.2d 730 (Colo. 1987).

Subsequent statement not tainted by prior refusal to make statement. People v. Quezada, 731 P.2d 730 (Colo. 1987).

Statements made during second interrogation 45 minutes after defendant invoked her right to cut off questioning in first interrogation concerning same crime were admissible where police immediately ceased initial interrogation upon defendant's request, defendant was given sufficient opportunity to assess her interests in making statement, second interrogating officer gave new Miranda warnings, and second officer was unaware of prior invocation of right to cut off questioning. People v. Quezada, 731 P.2d 730 (Colo. 1987).

Requirement that police scrupulously honor suspect's assertion of right to remain silent is independent of requirement that any waiver of rights be knowing, intelligent, and voluntary. People v. Quezada, 731 P.2d 730 (Colo. 1987).

Defendant's statements held properly admitted. Where the trial court made finding supported by the evidence to the effect that defendant's intoxication was not to an extent which would make his statement inadmissible, the jury was properly instructed as to the requirement of voluntariness of a statement, and the defendant did not attempt to introduce evidence as to his intoxication, offered no instruction on the subject, and did not mention the point in the motion for new trial, it was not reversible error to admit defendant's statements. Carroll v. People, 177 Colo. 288, 494 P.2d 80 (1972).

Lengthy conversation about wanting to end the police interview did not show that defendant had stopped agreeing to talk on a voluntary basis or that defendant had invoked the right to remain silent. A reasonable police officer could have understood the statements as an expression of defendant's desire to go home promptly, rather than as an invocation of the right to remain silent. Accordingly, the district court did not abuse its discretion in denying defendant's motion to suppress. People v. Muniz, 190 P.3d 774 (Colo. App. 2008).

Defendant's statements held inadmissible. Once the right to remain silent is clearly articulated, some additional circumstances must occur before police may resume questioning. Merely giving the suspect a short break from the interrogation was insufficient. People v. Arroya, 988 P.2d 1124 (Colo. 1999).

Police threat played a significant role in inducing defendant's statements, rendering those statements involuntary. Trial court found that police conduct calculated to cause defendant to believe that, (1) unless he confessed, detective would cause child to lose his mother and the mother, her child; and (2) if he did confess, mother and child would be together and detective would help defendant be reunited with them. Trial court's findings regarding the existence of the threat, its duration, and effect on the defendant, in light of his emotional and psychological condition, are supported by the evidence. Trial court's conclusion of involuntariness, based on its totality of the circumstances analysis, was justified. People v. Medina, 25 P.3d 1216 (Colo. 2001).

Police conduct did not improperly coerce defendant into making statements and thus did not render those statements involuntary. In evaluating whether police conduct is coercive, a court must examine both the defendant's ability to resist coercive pressures and the nature of the police conduct. People v. McIntyre, 2014 CO 39, 325 P.3d 583.

"Public safety" exception to Miranda not applicable where defendant had invoked his constitutional right to remain silent, had been safely in custody for several hours such that there was no immediate necessity to justify the detective's decision not to scrupulously honor defendant's invocation of this right to silence, and there was no exigency in the circumstances surrounding the interrogation. The detective's interrogation was investigatory since his questioning did not relate to an objectively reasonable need to protect the police or the public from any immediate danger. People v. Ingram, 984 P.2d 597 (Colo. 1999).

Defendant's prior knowledge of the crime about which he is questioned and the source of that understanding are factors to be considered in the totality of the circumstances surrounding the making of a statement for purposes of determining a voluntary, knowing, and intelligent waiver of Miranda rights. People v. Spring, 713 P.2d 865 (Colo. 1985), rev'd on other grounds, 479 U.S. 564, 107 S. Ct. 851, 93 L. Ed. 2d 809 (1987).

Defendant must be aware of the consequences of making the statement to satisfy the requirement that waiver of Miranda rights must be knowing and intelligent. People v. May, 859 P.2d 879 (Colo. 1993).

When issue in suppression hearing is voluntariness of defendant's statements, trial court should base decision upon fifth and fourteenth amendment analysis of the totality of the circumstances, including the conduct of the police and the defendant's mental condition at the time the statements were made, and not blur legal concepts by considering fourth amendment doctrines regarding the expectation of privacy in telephone conversations. People v. Smith, 716 P.2d 1115 (Colo. 1986); People v. May, 859 P.2d 879 (Colo. 1993).

But in instructing the jury on the issue of voluntariness of a confession, the court need not define the term since the general understanding of the word is clear. Kwiatkowski v. People, 706 P.2d 407 (Colo. 1985).

However, an appellate court may not ignore uncontradicted credible evidence in the record. People v. Cummings, 706 P.2d 766 (Colo. 1985); People v. DeBaca, 736 P.2d 25 (Colo. 1987).

It is proper for the trial court to instruct the jury that, although the defendant's confession had been admitted into evidence, it is the sole prerogative of the jury to determine what weight, if any, is to be given to the confession and any testimony directly related to the confession. Deeds v. People, 747 P.2d 1266 (Colo. 1987).

Review of trial court's finding on voluntariness. A trial court's finding of fact on the voluntariness of a confession will be upheld by the supreme court on review where it is supported by adequate evidence in the record. People v. Raffaelli, 647 P.2d 230 (Colo. 1982); People v. Corley, 698 P.2d 1336 (Colo. 1985); People v. Kurts, 721 P.2d 1201 (Colo. App. 1986); People v. Clements, 732 P.2d 1245 (Colo. App. 1986); People v. Jensen, 747 P.2d 1247 (Colo. 1987); People v. Bowman, 812 P.2d 725 (Colo. App. 1991).

Admission of oral and written incriminating statements held improper. Nez v. People, 167 Colo. 23, 445 P.2d 68 (1968).

Evidence of prior criminal transactions not admissible where defendant was acquitted of similar act. The doctrine of collateral estoppel prevents the introduction of similar transactions for which a defendant has been acquitted. People v. Arrington, 682 P.2d 490 (Colo. App. 1983).

Evidence from former trial admissible. Defendant's testimony from prior trial at which he was acquitted does not constitute hearsay and is admissible as defendant's statement in his individual capacity. People v. Arrington, 682 P.2d 490 (Colo. App. 1983).

Admission not to be product of illegally obtained statement. The burden is on the prosecution to establish that a tape-recorded statement by the defendant was not the product of the defendant's prior incriminating response, which was illegally obtained. People v. Lowe, 200 Colo. 470, 616 P.2d 118 (1980).

Defendant's statement to police made after request for counsel was result of unlawful interrogation, and, since such statement contained the only evidence of an element of the crime (forgery), use of the statement at trial constituted prejudicial error. People v. Johnson, 712 P.2d 1048 (Colo. App. 1985).

A consent to search is not the type of incriminating statement toward which the fifth amendment is directed. Trial court correctly found that defendant's written consent to search the trailer was voluntary and that the refusal to talk did not extend Miranda protection to his right to give consent to search. People v. Beaver, 725 P.2d 96 (Colo. App. 1986).

Courts have duty to quash indictment based upon testimony which violates defendant's constitutional guarantee against self-incrimination. People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956).

Jury must determine weight to be given confession. Where the court has admitted the confession in evidence, it is for the jury to determine the weight to which it is entitled, great weight, little weight, or no weight at all, depending upon the circumstances surrounding the making of the confession. Gallegos v. People, 145 Colo. 53, 358 P.2d 1028 (1960), rev'd on other grounds, 370 U.S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962).

Where trial court conducts full in camera hearing to determine whether defendant's confession was voluntary and to ascertain whether defendant was advised of rights afforded him by Miranda and where these issues are resolved against defendant, weight to be given to defendant's confession is properly left to jury. People v. Lovato, 180 Colo. 445, 506 P.2d 361 (1973).

Where a defendant elects neither to testify nor to offer any explanation of the evidence in his own behalf, he cannot later successfully complain upon review that the jurors drew inferences of his guilt which were warranted by the circumstantial evidence. Pooley v. People, 164 Colo. 484, 436 P.2d 118 (1968); Deeds v. People, 747 P.2d 1266 (Colo. 1987).

Not every reference to a defendant's silence mandates reversal; reversible error occurs only if the jury's attention is directed to a defendant's exercise of the right not to testify and defendant's silence is used to infer guilt. People v. Reali, 895 P.2d 161 (Colo. App. 1994).

Fifth amendment error does not occur when the prosecution elicits evidence of and comments upon a defendant's conduct, demeanor, and lack of concern on the night of the crime. The evidence and comments defendant challenged referred not to his silence in the face of police questioning but rather his failure, while speaking to the police, to show concern even for the welfare of his girlfriend. People v. Rogers, 68 P.3d 486 (Colo. App. 2002).

Inferences drawn when defendant fails to testify permissible. Where the defendant does not choose to testify, the jury may draw any reasonable inference of guilt warranted by the evidence in the case. Montoya v. People, 169 Colo. 428, 457 P.2d 397 (1969).

As, in protecting accused against unfair comment, the court is not compelled to limit advocacy or to gag the prosecution in legitimate oral argument covering the evidence and inferences which can be drawn from the evidence. People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975).

But defense shall not call witness, when it is known that witness will claim valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege. People v. Dikeman, 192 Colo. 1, 555 P.2d 519 (1976).

And the exercise of privilege against self-incrimination is not evidence to be used in case by any party. People v. Dikeman, 192 Colo. 1, 555 P.2d 519 (1976).

Once the defendant has indicated in any way that he does not wish to answer a question or questions, the interrogating officers have an affirmative and emphatic duty to determine whether the suspect is in fact exercising his privilege against self-incrimination with regard to specific questions or the entire subject from that point forward. People v. Spring, 713 P.2d 865 (Colo. 1985).

So state may not comment on refusal to testify. Comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice, which the constitution outlaws because it is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. Montoya v. People, 169 Colo. 428, 457 P.2d 397 (1969).

The prosecution cannot comment on or in any way use the silence of the accused as an instrument for inferring or suggesting guilt. People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973); People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973).

At trial the prosecution may not allude to defendant's silence after arrest as indicating a consciousness of guilt, as that would impermissibily penalize the defendant for exercising his privilege against self-incrimination during police custodial interrogation. People v. Campbell, 187 Colo. 354, 531 P.2d 381 (1975).

The defendant was unconstitutionally prejudiced by the district attorney's questioning and closing argument, the composite of which brought forth with clarity for the jury's consideration the fact that he had exercised his right to remain silent when questioned by the police after his arrest. Hines v. People, 179 Colo. 4, 497 P.2d 1258 (1972).

Defendant's assertion that court ruling affected testimonial rights sufficient for review. When a defendant asserts that a ruling of the trial court has affected the exercise of his constitutionally protected testimonial rights, he has alleged prejudice sufficient to seek review of that ruling. People v. Salazar, 44 Colo. App. 242, 610 P.2d 1354 (1980), rev'd on other grounds, 627 P.2d 246 (Colo. 1981).

Such comment reversible error if calculated to influence jury. Any direct, or even indirect, statement concerning a defendant's failure to testify in a criminal proceeding may well constitute reversible error, to be determined by the "true test" of whether the comment, in context, was calculated or intended to direct the attention of the jury to the defendant's neglect or failure to exercise his right to testify in his own behalf. Montoya v. People, 169 Colo. 428, 457 P.2d 397 (1969); People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975).

Improper comment by the prosecution on a defendant's failure to testify constitutes plain error. People v. Ortega, 198 Colo. 179, 597 P.2d 1034 (1979).

If a defendant does not waive or otherwise justify comment by the prosecutor, reversal and a new trial must be ordered when the prosecutor causes the defendant's silence to be highlighted in his closing arguments to the jury. People v. Storr, 186 Colo. 242, 527 P.2d 878 (1974).

Intent to steal being an essential element of proof of the crimes charged, the district attorney's comments were clearly directed to defendant's failure to testify concerning his intent at the time of the transaction and were prejudicial. Montoya v. People, 169 Colo. 428, 457 P.2d 397 (1969).

Factors determinative of whether argument constitutional. Factors which have entered into the determination of whether the prosecution's argument constituted fair comment or an unconstitutional reference to the failure of the accused to testify have been: (1) Whether the comment referred specifically to the defendant's failure to take the stand or to rebut the evidence against him; (2) whether the trial judge, after objection was made, gave a cautionary instruction to the jury to disregard the comments or the remarks relating to the failure of the accused to testify; (3) whether the prosecutorial comments were aggravated or repetitive; (4) whether the defendant was the only person who could refute the evidence which caused the comments to be directly pointed at the accused. People v. Todd, 189 Colo. 117, 538 P.2d 433 (1975).

Where references to silence of defendant are not intentionally designed to provoke adverse inferences of guilt in the minds of the jury, nor so repeated or gross in character as to provoke such inferences of guilt, reversal is not required. People v. Hauschel, 37 Colo. App. 114, 550 P.2d 876 (1976); People v. Nave, 689 P.2d 645 (Colo. App. 1984).

Defendant held not prejudiced by district attorney's remarks. Where the district attorney's remarks are directed toward calling the jury's attention to the sufficiency of the evidence rather than to the defendant's exercise of the right to refrain from testifying, the defendant is not prejudiced. Meader v. People, 178 Colo. 383, 497 P.2d 1010 (1972).

Where the district attorney said of the accused, "He can take the witness stand if he so desires like any other witness in this case", and where the court instructed the jury that the arguments, objections, and statements of counsel were not evidence and should not be considered, the trifling comment that occurred in the heat of trial did not impinge upon the defendant's right to silence and did not constitute reversible constitutional error. People v. Gilkey, 181 Colo. 103, 507 P.2d 855 (1973).

Prosecutor's opening statement reference regarding defendant's invoking his right to remain silent did not require a mistrial. The prosecutor's statement was brief and not repeated and the court issued a curative instruction to the jury, so the statement was not so prejudicial to warrant a mistrial. People v. Burnell, 2 019 COA 14 2 , 459 P.3d 736.

Where the prosecutor's remarks in summation are not reasonably calculated to direct the jury's attention to the defendant's post-arrest silence, there is no violation of the defendant's privilege against self-incrimination. People v. DeHerrera, 697 P.2d 734 (Colo. 1985).

Prosecutor's comments about "uncontradicted" evidence did not impermissibly infringe on defendant's right to remain silent. Prosecutor never referred directly to defendant's failure to testify; the trial court corrected any error with a limiting instruction; and prosecutor abided by court's direction to stop using the word. People v. Gomez, 211 P.3d 53 (Colo. App. 2008).

The trial court did not abuse its discretion in denying a motion for mistrial when prosecutor's remarks during closing argument referred to defendant's silence. At the time of the silence, defendant was not in custody and there was no interrogation. Any prejudice created by prosecution's remarks did not result in a miscarriage of justice. People v. Richardson, 58 P.3d 1039 (Colo. App. 2002).

Improper allusion to defendant's silence. Not only does a defendant have the right to remain silent, but it is improper for the prosecution to allude to his exercise of that right as indicating a consciousness of guilt. People v. Wright, 182 Colo. 87, 511 P.2d 460 (1973).

Trial testimony as to defendant's silence in custodial interrogation inadmissible. Testimony introduced at trial showing that the defendant refused to answer certain questions while undergoing custodial interrogation by police officers was inadmissible and violated privilege against self-incrimination. People v. Mingo, 180 Colo. 390, 509 P.2d 800 (1973).

Court may properly allow testimony concerning defendant's pre-advisement silence concerning failure to contact authorities to correct discrepancies in documents if defendant testified and the evidence of defendant's pre-advisement silence was elicited in the cross-examination of defendant for credibility purposes. People v. Taylor, 159 P.3d 730 (Colo. App. 2006).

Cross-examination regarding defendant's silence, when considered in light of the direct examination, pointed out that defendant's pre-Miranda phone interview with the detective was inconsistent with defendant's statement that he told her "everything". People v. Davis, 312 P.3d 193 (Colo. App. 2010), aff'd on other grounds, 2013 CO 57, 310 P.3d 58 (Colo. 2013).

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, and commenting on slamming the door cannot be construed to be analogous to prosecutorial comments upon defendant's right to remain silent. People v. Turner, 730 P.2d 333 (Colo. App. 1986).

But testimony as to refusal to sign Miranda forms admissible. Where the defendants did not claim their constitutional rights against self-incrimination but instead talked freely when questioned by police, they could not at their trial object to the introduction of Miranda advisement forms which showed that the defendants understood their rights but refused to sign the forms. People v. Trujillo, 186 Colo. 329, 527 P.2d 52 (1974).

Waiver of Miranda rights valid even though advisement on witness statement form contained an inaccurate statement of privilege against self-incrimination at trial. People v. Owens, 969 P.2d 704 (Colo. 1999).

Police testimony as to defendant's oral confession was proper and permissible in all its aspects, where the record indicates that before being questioned the defendant was advised of her complete rights; that she read and signed a rights advisement form; that she understood her rights; that she indicated a willingness to talk; and that she "freely and voluntarily" told the police about her involvement in the crime. People v. Gallegos, 181 Colo. 264, 509 P.2d 596 (1973).

Jury instructions regarding defendant's failure to testify. Jury instructions stating that defendant's failure to testify in a criminal case should not be taken by the jury as evidence of defendant's guilt or innocence is frowned upon when the defendant has objected to the instruction, but it does not constitute prejudicial error. White v. People, 175 Colo. 119, 486 P.2d 4 (1971); People v. Roark, 643 P.2d 756 (Colo. 1982).

It is error to refuse a tendered instruction containing language that the defendant is not compelled to testify and that the fact that he does not cannot be used as an inference of guilt and should not prejudice him in any way. People v. Crawford, 632 P.2d 626 (Colo. App. 1981).

Call of coconspirator to witness stand prejudiced defendant. Where the district attorney was alerted, as was the trial court, that the coconspirator was facing criminal charges and did not intend to testify, he could not have entertained a good faith belief that the coconspirator would testify if called. Thus, calling him appears as a studied attempt to bring to the attention of the jury his refusal to testify and his claim of the "fifth amendment". This staged incident is prejudicial to the rights of the defendant. Absent good faith on the part of the district attorney instructions that the jury disregard the byplay, it is impossible to conclude that such procedure did not have an adverse affect on the rights of the defendant. DeGesualdo v. People, 147 Colo. 426, 364 P.2d 374 (1961).

Attorney of defendant who took stand may not comment on another defendant's silence. In a joint prosecution of two roommates for possession of hashish which has been discovered in a closet shared by them and each contends that the hashish belongs to the other, where one defendant fails to take the stand, the attorney of the defendant who did take the stand cannot comment on the other defendant's silence, for to do so would violate the silent defendant's constitutional rights. Eder v. People, 179 Colo. 122, 498 P.2d 945 (1972).

Where prosecution requests in front of jury that defendant participate in physical demonstration to illustrate the correctness of the prosecution's theory and defendant refuses, the request violates the defendant's privilege against self-incrimination and warrants reversal. Serratore v. People, 178 Colo. 341, 497 P.2d 1018 (1972).

Privilege not violated by prosecution as accessory after fact. Defendant's constitutional privilege against self-incrimination was not violated by prosecution as an accessory after the fact. Such an accessory by definition does not assent to the commission of the principal's crime, and the statute defining the offense did not impose liability upon defendant for his failure to reveal his complicity, but rather for his affirmative acts which constituted the interdicted conduct. Self v. People, 167 Colo. 292, 448 P.2d 619 (1968).

Or by cross-examination of defendant at pretrial suppression hearing. Where no evidence elicited at a pretrial suppression hearing from the defendant compelling him to testify against himself was offered either on direct or cross-examination by the prosecution at defendant's trial and the record did not support the contention by the defendant that trial testimony by police officers was based upon evidence adduced upon his cross-examination at the pretrial suppression hearing, any error in permitting such cross-examination of the defendant was harmless. Dickerson v. People, 179 Colo. 146, 499 P.2d 1196 (1972).

Suppression of statement under use-immunity principle. Where a police officer obtains a statement from a suspect in exchange for his implicit promise not to prosecute her for what she tells him, and the suspect has reasonably and detrimentally relied upon the promise, a remedy that accords substantial justice is to treat the statement as if it has been obtained pursuant to a grant of use-immunity. The statement must be suppressed under the use-immunity principle, as well as any evidence derived directly or indirectly from the statement. People v. Manning, 672 P.2d 499 (Colo. 1983).

Defendant who introduces a statement as part of his or her case-in-chief cannot later claim that that same statement, or portions thereof, if being used by the prosecution, was admitted in violation of Miranda. People v. Grant, 174 P.3d 798 (Colo. App. 2007).

Once a criminal defendant demonstrates that he has been compelled to testify under a grant of use immunity, the prosecution is prohibited from using the compelled testimony in any respect and the prosecution has the duty to prove that evidence it proposes to use is derived from an independent source. People v. Reali, 895 P.2d 161 (Colo. App. 1994).

A waiver of the right to remain silent resulting from an election to testify must be made by the defendant personally and must be made voluntarily, knowingly, and intelligently if it is to be effective. People v. Mozee, 723 P.2d 117 (Colo. 1986).

The absence of an on-the-record advisement and determination of waiver before the defendant testifies will not automatically render a defendant's waiver invalid. People v. Mozee, 723 P.2d 117 (Colo. 1986).

Failure of court to advise defendant that he could testify despite his attorney's advice did not require reversal of conviction where defendant stated on the record that his waiver of the right to testify was made freely and voluntarily. People v. Woodard, 782 P.2d 1212 (Colo. App. 1989).

Trial court is not required to ask the defendant personally, on the record, whether he wishes to waive his right to testify as long as competent evidence exists to support the trial court's determination that the defendant has effectively waived his right to testify. Roelker v. People, 804 P.2d 1336 (Colo. 1991).

Right to testify on own behalf. An accused in a criminal trial has the right to testify in his own behalf even in the face of contrary advice from his attorney. People v. Palmer, 631 P.2d 1160 (Colo. App. 1981).

The defendant has a constitutionally protected right to testify on his own behalf. People v. Curtis, 657 P.2d 990 (Colo. App. 1982), aff'd, 681 P.2d 504 (Colo. 1984).

In deciding as to a waiver of the defendant's right to testify on his own behalf, the defense counsel must be governed by the will of the defendant. People v. Curtis, 657 P.2d 990 (Colo. App. 1982), aff'd, 681 P.2d 504 (Colo. 1984).

Waiver of the right must be voluntary, knowing, and intentional, and the existence of effective waiver should be ascertained by the trial court on the record. People v. Curtis, 681 P.2d 504 (Colo. 1984); People v. Clouse, 859 P.2d 228 (Colo. App. 1992).

However, this holding was given only prospective effect, and, therefore, in trials conducted prior to People v. Curtis it was necessary only to determine from the record whether the waiver was voluntary, knowing, and intentional. People v. Somerville, 703 P.2d 615 (Colo. App. 1985).

Trial court has a duty to determine whether the waiver of the right to testify by the defendant was in fact voluntary, knowing, and intentional. People v. Pietrantonio, 727 P.2d 407 (Colo. App. 1986).

Satisfactory advisement prior to waiver of the right to testify should inform defendant of the right to testify; the fact that this decision is personal; the prosecution's ability to cross-examine the defendant; the fact that prior felony convictions could be disclosed to the jury; the limited purpose for which such prior convictions would be admitted; and the consequences of testifying. People v. Gray, 920 P.2d 787 (Colo. 1996); People v. Ziglar, 45 P.3d 1266 (Colo. 2002).

Failure of the court to give a proper People v. Curtis advisement constitutes reversible error. People v. Gray, 920 P.2d 787 (Colo. 1996).

Requirements of People v. Curtis substantially complied with. People v. Roelker, 780 P.2d 17 (Colo. App. 1989); People v. Whitley, 998 P.2d 31 (Colo. App. 1999); People v. McDaniel, 74 P.3d 454 (Colo. App. 2003).

The right to testify is so fundamental that only the defendant may waive it, and this waiver must be voluntary, knowing, and intentional. People v. Ball, 813 P.2d 759 (Colo. App. 1990).

Defendant who was facing habitual criminal charges received adequate advisement about his right to testify and thus made a knowing, voluntary, and intentional waiver of his right to testify. Defendant was given advisements twice to the effect that he had a right to testify, that nobody could prevent him from testifying, that if he did testify the prosecution was entitled to cross-examine him and ask him about prior felony convictions, and that, if a felony conviction was disclosed to the jury, then the jury could be instructed to consider the felony conviction only as it had bearing on the defendant's credibility. People v. Ball, 813 P.2d 759 (Colo. App. 1990).

Trial court's advisement that was episodic, discursive, and given in colloquial terms but which was not deficient in substance did not constitute a denial of defendant's right to remain silent. People v. Tyler, 854 P.2d 1366 (Colo. App. 1993).

Trial court's advisement that the jury would be instructed to consider the defendant's felony conviction as it bears on the defendant's character was deficient. The evidentiary concept of character and the trait of credibility are substantively different terms when used by the trial court. By using character instead of credibility, the trial court incorrectly advised the defendant of the consequences of testifying at his or her trial. People v. Harding, 104 P.3d 881 (Colo. 2005).

Although a deficient Curtis advisement entitles a defendant to a post-conviction hearing concerning the validity of his waiver of the right to testify, a deficient trial court advisement does not invariably render the defendant's waiver invalid. People v. Blehm, 983 P.2d 779 (Colo. 1999).

A criminal defendant who voluntarily takes the witness stand in his or her own defense waives the fifth amendment protection against incrimination to the extent necessary to permit effective cross-examination. People v. Sallis, 857 P.2d 572 (Colo. App. 1993).

The procedure of conducting a mock cross-examination of defendant outside the presence of the jury was improper. Having waived the protection of the fifth amendment, the defendant should not have the benefit of procedures that are not extended to other witnesses. People v. Sallis, 857 P.2d 572 (Colo. App. 1993).

Proper response to a deficient trial court advisement is a post-conviction hearing concerning the validity of the defendant's waiver of the right to testify. People v. Blehm, 983 P.2d 779 (Colo. 1999); People v. Harding, 17 P.3d 183 (Colo. App. 2000).

Trial record alone was not sufficient to prove that the defendant was fully aware of the impeachment consequences of testifying. People v. Harding, 104 P.3d 881 (Colo. 2005).

Crim. P. 16 part II (b) and (c), do not violate privilege against self-incrimination. People v. District Court, 187 Colo. 333, 531 P.2d 626 (1975).

The court's limiting instruction and surrounding instructions regarding the expert's testimony on the issue of defendant's sanity adequately protected defendant's privilege against self-incrimination. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).

Defendant was entitled to a new trial when the trial court inadvertently forgot to include a jury instruction regarding defendant's right to remain silent. Defendant preserved the issue when he requested an instruction and the court indicated it would include the pattern instruction on remaining silent, but ultimately forgot. The court's discussion regarding the right to remain silent during voir dire did not suffice for a jury instruction on the right to remain silent. Deleon v. People, 2019 CO 85, 449 P.3d 1135.