Are there Fourth Amendment Considerations When an Individual is Confronted by a Police Officer?
Yes, almost all police-citizen encounters raise considerations under the Fourth Amendment. The Fourth Amendment of the United States Constitution protects individuals from unreasonable search and seizure. Likewise, Article II, Section 7 of the Colorado Constitution provides similar protection against unreasonable search and seizure. The Federal and State provisions serve to complement each other.
Is There a Preference for an Arrest Warrant in the Bill of Rights?
Yes. There is clearly a preference for a warrant to issue before an arrest is made. Both the United States Constitution and the Colorado Constitution provide that a warrant shall issue upon oath or averment supporting probable cause.
The Police submit an affidavit laying forth enough of the information gathered to support the arrest, and request that an arrest warrant be issued by the Court. A judge is assigned to review the warrant. The judge decides either to issue the warrant or deny the same.
If the judge finds that probable cause exists, the judge signs off on the arrest warrant. The officer takes the arrest warrant and goes forward with a lawful mandate to arrest the person named on the warrant.
What About an Arrest Without Any Warrant?
Neither the United States nor Colorado Constitutions have a specific provision covering a warrantless arrest.
The preference for an arrest warrant is not mandatory, however. When a warrantless arrest of an individual takes place, a defense lawyer can challenge the arrest as unconstitutional and in violation of the client’s rights. The lawyer can seek to suppress all evidence obtained from the unlawful arrest.
What Does Probable Cause Mean?
Probable cause means that a reasonable person would believe that a crime was or appears to have been committed and the party arrested either committed the crime or was engaged in or associated somehow in the criminal activity.
Probable cause does not rely on any type of mathematical certainty.
Probable cause is far short of proof beyond a reasonable doubt.
That said, a mere hunch that criminal activity appears to have taken place does not support probable cause.
What is a Consensual Police-Citizen Encounter?
A consensual police–citizen encounter is not an arrest. It is considered a legitimate encounter even if the individual is questioned.
A common police-citizen encounter is when a car is pulled over by the police for a traffic violation and the driver is asked to produce his driver’s license, registration, and proof of insurance.
Another common police-citizen encounter is when a police officer stops and frisks an individual whom the officer suspects may have been involved in a crime, is planning a crime, or may be armed. The stop-and-frisk procedure, if done properly, will not likely be found to have violated the individual’s rights.
Is a Suspect Required to Speak with the Police?
No, a citizen may be required to give their name and possibly their license or identification but that is it. You do not have to answer a police officer’s questions. You should decline and ask for an attorney to be made immediately available.
If You Are Charged With a Crime, Call Peter Albani at (303) 753-0900
Applying your constitutional rights in a courtroom can be a complicated business. If you are charged with a crime in Park County, Summit County, Lake County, Eagle County, or any other location in Colorado, you will want an experienced attorney to defend you and your case. Peter Albani has been a defense attorney for almost 40 years in Colorado. He has successfully defended all types of cases from DUI to first-degree murder. Mr. Albani has successfully defended all types of misdemeanor and felony crimes
Call me at (303) 753-0900
