Colorado Criminal Law – Am I Safe To Sit In My Car – Police Intrusion Issues
By H. Michael Steinberg Colorado DUI – DWAI – DUID Criminal Defense Lawyer – Attorney
Colorado Criminal Law – Am I Safe To Sit In My Car – Police Intrusion Issues – Many DUI cases in Colorado begin with police contact with individuals in parked cars. This article addresses the rights of persons who are in their automobiles – such as in a private parking lots. The article addresses the rights of the police to contact Colorado citizens in the rights of citizens to be left alone.
Understanding Your Basic Right To Be Left Alone – The Fourth Amendment
The Fourth Amendment to the US Constitution lays the foundation of the laws and court decisions that regulate police-citizen encounters.
The Fourth Amendment states:
A critical part of the Fourth Amendment is the requirement that, before a person or place can be searched or seized, a warrant should be secured. While there are exceptions to the “warrant requirement” those exceptions are narrowly defined. The law is ever attempting to balance the need to apprehend criminals against the rights of innocent citizens to be free from government harassment.
The Three Tiers (Levels) Of Colorado Police – Citizen Encounters
It is critical to first point out that not all contact between law enforcement officers and the public involves Federal or Colorado State constitutional protections against unreasonable searches and seizures.
Under Colorado law there are essentially THREE TIERS of police citizen contact. The three tiers of police-citizen encounters are:
Tier I. Consensual Encounters,
Tier II. Investigative Detentions, and
Tier III. Arrests.
I. Police – Citizen Consensual Encounters
Consensual encounters are among the most common interactions between the police of Colorado and the Colorado citizens they serve.
Consensual encounters must be just that – consensual. These encounters require the cooperation of the citizen. As long as the person “encountered” agrees, that is continually consents to the contact, a police officer can ask any question he or she wishes…. even to the point of obtaining consent to search the person or the person’s property.
During a consensual encounter, the citizen is free to leave at any point and may refuse to answer any questions which includes asking the police officer to leave their property.
There is no quantum (level) of evidence of the commission or attempted commission of any crime required to initiate a consensual encounter, and the encounter can be terminated by either party at any point of the encounter.
If you are sitting in your car and the police approach the car and wish to talk to you with no evidence that you have committed any crime, you do NOT have to speak to those officers.
How Are These “Voluntary” Contacts Defined?
To fully understand the true nature of consensual encounters you must understand that there are basically two categories of voluntary contacts. These contacts are further be defined as:
1. Social Contacts – A voluntary, consensual encounter between the police and a citizen with an intent to engage in casual and / or non-investigative conversation. As with all consensual encounters, the citizen is free to leave and / or decline any of the officer’s requests at any point.
2. Non-Custodial Interviews – While not a social contact, and more of an intended interview – this kind of contact must also be a voluntary and consensual investigatory interview that a police officer conducts with a subject. The subject of the interview is always free to end the interview and is free to leave and / or decline any of the officer’s requests at any point.
It is critical to understand this – true voluntary contacts are not seizures. The very definition of a voluntary contact requires police officers to not use any words, actions, or other show of authority that would tend to message the subject of the interview that that person is not free to leave.
Again, the citizen encountered is in total control at every moment of a consensual encounter.
An encounter between the police and a citizen becomes a seizure within the contemplation of the Fourth Amendment only at the point at which a reasonable person in the citizen’s position would no longer feel free to leave, or to disregard inquiries or directions from the officer…
II. Investigative Detentions – The First Of The Two Levels Of Detention That Require Evidence Of A Crime
There are essentially two distinct levels of seizure of a person sanctioned by the Fourth Amendment. To understand the difference between them one needs to focus on what distinguishes one from the other. That difference detentions that will be discussed below is the extent to which the individual liberty of the person being detained is infringed upon.
The first level of non-consensual encounter is the investigatory detention which requires a quantum of evidence of a suspected commission or attempted commission of a crime that is called “reasonable suspicion.” The second level of seizure is an arrest based upon “probable cause.”
Level I Detentions – The Investigative Detention Also Known As The Terry Stop And Detention
The low less intrusive of the two levels of police intrusion into Colorado citizens’ lives is called an “investigatory stop” or “investigative detention.” The level of proof required to justify this level of intrusion is termed “reasonable articulable suspicion” to believe that the person detained is committing, has committed, or is about to commit a crime.
The intrusion must be limited in scope to a brief detention to either confirm or to dispel that quantifiable and articulable original “reasonable suspicion.”
An investigative detention is also known as a “Terry stop,” – named after the US Supreme Court Case of Terry v. Ohio. The Terry case stands for the rule that an investigative detention is a reasonable investigatory tool that is less than an arrest, during which a citizen’s free movement is temporarily restrained.
Importantly, an officer may forcibly stop a suspect if they have legal justification for a Terry stop.
Stated differently, in a Terry stop, a police officer must have:
The Terry Investigative Detention Stop…reasonable, articulable suspicion that a specific person has committed, is committing or is about to commit a specific crime. The stop may not be based on “mere suspicion” or a “hunch.” The stop must be supported by facts and observations that the officer can articulate as likely criminal behavior based on his training and experience.
One thing must be made absolutely clear – in an investigative detention the person detained is not allowed to leave. On the other hand any investigative detention that lasts beyond a reasonable amount of time becomes a de facto arrest.
Summary – Investigative Detentions – “Terry Stops”
Terry stops are seizures and must be based on reasonable suspicion in order to be lawful. A Terry stop must be based on reasonable suspicion based upon specific articulable facts.
A Terry stop IS a seizure for investigative purposes. The definition of a “seizure” is when a police officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. If a police officer uses words, actions, or a demeanor that would make a reasonable person believe that he or she is not free to go, this is a seizure for the purposes of the Fourth Amendment.
Whether a Terry Stop is considered legally reasonable it is viewed under the totality of the circumstances that will include the officer’s training and experience, and what the officer knew before the stop. Furthermore, it is important to note that information learned during a stop can lead to additional reasonable suspicion or probable cause that a crime has occurred, but cannot be used to provide the justification for the original stop.
Colorado Courts have recently said this about Terry Stops:
It is now long established that a limited seizure of a person, designated an investigatory stop, is permitted by the Fourth Amendment upon reasonable articulable suspicion, not rising to the level of probable cause, that the person is committing, has committed, or is about to commit a crime.
…an “investigatory stop” can be justified only for the purpose of confirming or dispelling that articulable suspicion and may be no more intrusive than required to diligently do so.
Under Colorado law, in evaluating whether the scope and character of an investigatory detention the Courts review whether the detention was reasonably related to the investigative purpose to be served by it – “common sense and ordinary human experience must govern over rigid criteria.” While the factual scenarios will necessarily vary by the individual case, the Colorado Court’s of Appeal find the following factors, while not exhaustive, to be of particular relevance.
The considerations are:
- the length of the detention,
- the extent of and reasons for any movement of the suspect from one location to another,
- the diligence exercised by the investigating officer in pursuing the investigative purpose that justified the detention, and
- the availability of less intrusive means of resolving the questions raised by his reasonable suspicion.
A Key Issue In Colorado Investigatory Stops Is The Application Of Delay – Time
During an investigatory stop the police officer clearly cannot inquire into matters of which the investigating officer lacks reasonable suspicion. On the other hand, if during the investigatory stop other matters are discovered for which there is reasonable suspicion to continue the investigation – then the detention can be extended.
[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.
Examples Of Reasonable Delays – Terry Stops
The conversion of a Terry Stop into an arrest must usually be resolved in a measure of minutes, not hours. While there is no specific “time limit” that is applied in the analysis , in the seminal case of United States v. Place the United States Supreme Court said this:
“Although we decline to adopt any outside time limitation for a permissible Terry stop, we have never approved a seizure of the person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case,”
“In assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation.”
how long a Terry stop is permitted to last is determined by two factors:
1. The purpose of the stop, and
2. What is reasonably necessary for the police to achieve that purpose.
Examples of “acceptable” delays under Colorado law are:
…the minimal delay required for a computer search for outstanding warrants or other proscriptive order barring a detainee’s suspicious conduct has been universally sanctioned….so long as this does not unreasonably extend duration of temporary detention.
… after a valid traffic stop where defendant detained for purpose of running clearance check that a driver’s license had not been revoked.
…[in a domestic violence investigation] – separating two witnesses/suspects in order to question each outside the presence of the other was both minimally intrusive and necessary to ensure that each detainee could speak without influencing or being influenced by the other.
When an investigating officer has reason to believe that one of two persons under investigation for an act of domestic violence and may be dominating or threatening the other, the time needed to finish the investigation where there may have been an act of domestic violence “is clearly a reasonable investigative technique” and does nothing more to infringe on the defendant’s liberty.
Level II Detentions – The Arrest – Or The Terry Stop That Evolves Into An Arrest
The higher level, or more intrusive of the two non-consensual encounters with the police, are actions by the police amounting to an arrest.
An arrest can be justified only upon the acquisition of probable cause to believe a crime has been committed by the person detained.
To understand the context of this next level encounter – a Terry stop either progresses to probable cause to arrest, or failing to develop into probable cause, requires law enforcement to RELEASE the suspect.
There is no requirement that the police announce an arrest. Whether a suspect is formally told he or she is under arrest is not a key factor. The focus of the courts in reaching a conclusion that there has been an arrest is to determine whether the infringement on the liberty of a detainee exceeded that permitted in an investigatory stop. At the point the Court finds there has been an arrest, the Court must determine whether the police officer had probable cause to arrest.
In the absence of probable cause in this context – the suspect’s loss of liberty amounts to an unlawful seizure and would therefore be an unconstitutional act on the part of law enforcement.
What Is The Definition Of Probable Cause?
Probable cause to arrest is essentially reasonably trustworthy information sufficient to warrant a man of reasonable caution in the belief that the arrestee has committed an offense.
Probable cause is considered to be a practical, nontechnical conception and not a rigid, hyper technical requirement. Some courts describe the term as no more than a “fair probability” that the person arrested has committed a crime.
Probable cause for arrest exists where the facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy information are sufficient to cause a reasonably cautious and prudent police officer to believe that an offense has been committed and the person arrested probably committed it
Comparing “Probable Cause” To “Reasonable Articulable Suspicion”
The lawfulness of any encounter in Colorado between a police officer and a citizen is always a function of the extent of official intrusion on the citizen’s liberty at any point in time and the corresponding nature and extent of suspicion surrounding the citizen’s activities.
Unlike probable cause, reasonable articulable suspicion required to support an investigatory stop is described as “some minimal level of objective justification.” This level of intrusion is much less of a quantum of proof of wrong doing than probable cause to arrest. Reasonable suspicion can arise from information that is significantly less reliable than that required to show probable cause.
Am I Under Arrest?
What then turns a legal investigatory stop into an illegal arrest? It is important to note that a seizure does not occur simply because citizens feel an inherent social pressure to cooperate with the police. Much more is required. Colorado Courts focus on the acts of the police during the encounter that reflect on the intrusiveness of that encounter.
Only when the police officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen, may a court conclude that ‘a seizure’ has occurred.”
While not exhaustive, the following factors are examined:
1. A threatening presence of several officers,
2. The display of a weapon by an officer,
3. Physical touching of the person of the citizen, or
4. The language or tone of voice indicating that compliance with the officer’s requests might be compelled.
Again, if a Colorado police officer develops “probable cause” during the investigative detention phase – that detention no longer need be justified as an investigatory stop – but is rather justified as an arrest.
Colorado Law On Police Contact With Parked Vehicles – The Automobile Exception To The Requirement For A Search Warrant
Traffic stops are analogous to Terry stops. And like Terry Stops, traffic stops or contacts with individuals just sitting in a parked car, also cannot be prolonged unnecessarily. If a person is approached in a vehicle or stopped by the police, unless the contact is a consensual encounter, that stop or contact may be lawful at its inception but if it exceeds a reasonable period that is necessary to accomplish the purpose of the traffic stop, it may evolve into an unlawful, unconstitutional contact.
Once the purpose of a traffic stop is achieved – (traffic enforcement) , and the stop is not extended beyond the time that was necessary for normal questioning and interaction associated with a traffic stop, the citizen must be released.
This is what the Colorado Court’s of Appeal has said on this issue:
“a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”
Colorado Criminal Law – Am I Safe To Sit In My Car – Police Intrusion Issues
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The contents of this article are based upon my research, my personal experience and my personal analysis and opinions developed from my thirty six years (as of 2018) of criminal trial experience from both sides of the courtroom – as a former career prosecutor for Arapahoe and Douglas Counties (13 years) and as the owner of my own Criminal Defense Law Firm since 1999 (19 years).
The reader is also admonished that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.
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