Colorado Supreme Court: Odor of Marijuana a Valid Factor in Warrantless Auto Search

The Colorado Supreme Court today ruled that, although personal consumption of small quantities of marijuana is legal in the state, the odor of marijuana, along with other suspicious factors viewed under the totality of circumstances, can be considered in determining whether probable cause exists to conduct a warrantless search of an automobile.

In People v. Zuniga, the Court approved a warrantless search by a Colorado State Trooper of an automobile from which an odor of burned marijuana was emanating.  The Court held that, although personal consumption of marijuana is legal in Colorado, there are other laws pertaining to the illegal possession of marijuana that may have been in play, and the odor, along with the nervous demeanor of the occupants, their diverging stories, and the alert of a drug-sniffing canine, was sufficient to constitute probable cause to search the vehicle in this case.

It is important to remember that a law enforcement agent cannot search an automobile with out a warrant unless he has probable cause that criminal activity has occurred or is occurring.  Absent probable cause or a warrant, an officer must obtain consent of the driver/owner in order to search the automobile.  Consent must be voluntary and not the product of coercion or trickery.  A person is NEVER required to give consent to search his person or property.

Ascertaining the constitutionality of an officer's conduct requires an experienced criminal attorney, so it is important to consult with capable counsel when confronted with a criminal charge.

SCOTUS: No Warrant Needed for DUI Post-Arrest Breath Test; Warrant Still Required for Blood

This week, the U.S. Supreme Court further addressed the issue of mandatory chemical testing in DUI cases.  The Court had previously held that states could not force DUI blood tests without a warrant, and thus prosecuting persons for refusing blood testing absent a warrant violated the Fourth Amendment.  Colorado does not criminalize a refusal to consent to chemical testing, but in light of the SCOTUS rulings regarding warrantless DUI blood draws many Colorado courts have ruled that refusal to consent voluntarily to a blood test could not be used against a defendant at trial except for purposes of impeachment.  Refusal of chemical testing can still be used against a Colorado DUI suspect in administrative proceedings involving his driving privilege, as criminal Constitutional protections did not likewise apply.

Today, the Court issued its ruling in Birchfield v. North Dakota, holding that intoxilizer breath tests do not rise to the same level of intrusion as blood tests and therefore do NOT require a warrant.  As neither blood nor breath samples are "testimonial" evidence, they are not protected by the Fifth Amendment right against self-incrimination.  However, the Fourth Amendment does protect individuals from "unreasonable searches and seizures" and therefore require a warrant or a valid legal exception therefrom.  In Birchfield, the Court held that that the intrusion of requiring a breath sample was extremely minimal and was not comparable to the actual physical intrusion of piercing the skin for a blood draw.  The Court did not carve out a new exception to the Fourth Amendment warrant requirement, but merely applied the long-standing "search incident to lawful arrest" established nearly a half-century ago in California v. Chimel. However, this ruling clearly expands the boundaries of Chimel and its progeny, as the search incident to lawful arrest exception was clearly approved to facilitate officer/community safety by ensuring an arrestee was not carrying weapons/contraband into detention facilities, NOT to discover additional evidence or evidence of new crimes as in the present case.

Criminal law and the law pertaining to DUI is complex and ever-changing, and the assistance of an experience lawyer is important in defending these types of cases.

Absent Scalia, SCOTUS Issues Bizarre Fourth Amendment Ruling

On Monday, the U.S. Supreme Court, still absent one justice following the death earlier this year of Anton Scalia, ruled that evidence obtained after the warrant arrest of a suspect is admissible despite the fact that the basis for detaining the suspect violated the Fourth Amendment.

Writing for the five-justice majority in Utah v. Strieff, Justice Thomas held that, although the officer in question had no reasonable, articulable suspicion to initially detain Strieff, the existence of an active warrant for his arrest gave the officer complete authority under the Fourth Amendment to search Strieff after placing him in custody.  All three female justices--Sotomayor, Kagan and Ginsberg--dissented and pointed out that the discovery of the warrant and the arrest could not have taken place but for the unconstitutional detention of the suspect.  The dissent opined that this ruling will only encourage police to indiscriminantly stop and detain young minorities in a fishing expedition of hoping to find some with active warrants.

Colorado case law holds differently than SCOTUS in this area.  In People v. Martinez, (08SA317) issued seven years ago, the Colorado Supreme Court held that the unlawful detention of a suspect resulting in the discovery of a warrant and subsequent arrest tainted any evidence discovered as the result of the arrest.  Therefore, in the wake of Strieff, Colorado currently offers greater Fourth Amendment protection for persons unlawfully detained by the police who are subsequently found to have active warrants.

As you can see, the Constitutional aspects of criminal law are complex and ever-changing, and the assistance of a seasoned attorney is essential in exploring all aspects of defending a criminal charge.

The Law Concerning DUI Checkpoints

With the holiday season in full-swing, the presence of law enforcement on the roads looking for impaired drivers will be great.  In addition to heightened patrols on the roads, many agencies, especially municipal police departments, will be operating what they commonly refer to as sobriety checkpoints.  If you drive in the Denver Metro Area for very long, you are likely to run across one of these "checkpoints" somewhere, and the holidays are a favorite time for law enforcement to set up these operations, given the frequency of celebrations offering alcoholic beverages.  There are established procedures police must follow in conducting these checkpoints, and many videos may be found online of individuals who have recorded their encounters.  Here are some things to keep in mind should you encounter of these "sobriety checkpoints"...

First, these checkpoints ARE legal/constitutional, as long as they are conducted properly.  These roadblocks or checkpoints are considered administrative searches under the Fourth Amendment, which means that they are conducted for general maintenance of health, safety and/or welfare of the community.  The stopping of vehicles normally requires, at a minimum, reasonable suspicion of illegal activity.  However, in administrative searches, as long as every vehicle coming through the checkpoint is stopped, or if there is a random formula of selection, e.g. every third car is stopped, then the roadblock is permissible.  Colorado law requires that advance notice of the checkpoint be posted to allow persons who do not wish to be subjected to the roadblock the opportunity to take an alternate route.  Although avoiding a checkpoint is NOT in and of itself reasonable suspicion, police can and often do follow vehicles that avoid these checkpoints and, if driving violations are observed, stop these vehicles and contact the driver. 

Once stopped, police are only permitted to contact the driver and require the driver to produce standard, required documentation, such as driver's license, automobile registration and proof of insurance.  Drivers and occupants are not required to answer any questions posed by officers or engage them in conversation if they do not wish to do so.  Officers can only require the driver or occupants to exit the vehicle if the officer has reasonable suspicion of illegal activity.  However, even if you are required to exit your vehicle, you still are not required to answer any questions, make any statement, or perform any type of "roadside sobriety" tests, referred by law enforcement as Standard Field Sobriety Tests.  Should an officer believe he/she has probable cause to believe a driver is impaired or under the influence, the officer can request that a chemical test of the driver's blood or breath be completed; failure to complete such a requested test can result in loss of the driver's license.

Sobriety checkpoints are common this time of year, and although they are legal if properly conducted, your rights are still very much in play as in any police contact.  Should your encounter with a checkpoint result in criminal/traffic charges, an experienced attorney will be helpful in evaluating the validity of your contact and charges and in determining what legal defenses may be available to you.  Have a safe and enjoyable holiday season!

SCOTUS: Police Cannot Prolong Traffic Stops for Dog Sniff Without Reasonable Suspicion

This week, the U.S. Supreme Court held in Rodriguez v. U.S. that detaining a driver stopped for a traffic violation longer than necessary to issue a citation violates the driver's Fourth Amendment right against unreasonable searches/seizures.  In this case, a police officer in Nebraska detained a driver for failing to remain in his lane, and after the officer had run a review of the driver's record and determined there were no outstanding warrants/violations, issued the driver a citation.  However, and despite the admitted absence of probable cause or reasonable suspicion, the officer refused to let the driver go on his way until a canine unit arrived to conduct a dog sniff of the driver's vehicle.  The government argued that the detention of the driver was not unreasonable in that it was a minimal, temporary inconvenience to the driver and that dog sniffs were a common tool of law enforcement.

SCOTUS disagreed, and reiterated rules it had laid out in previous cases holding that the length of an investigatory detention is governed by the scope of the reasonable suspicion that justifies the detention.  While the stop of the driver's vehicle was justified, continuing the detention after the traffic matter was resolved without additional legal grounds was not. 

It is significant to note that the driver in this case did NOT consent to the extended detention or subsequent dog sniff and search of his vehicle.  Consenting to police detentions and/or searches constitutes a WAIVER of your Constitutional rights.  You should never consent to a waiver of your rights for any reason unless/until you have conferred with experienced legal counsel.

Leglislative impacts on DUI and ID

Governor Hickenlooper recently signed new legislation impacting DUI driver's license revocation hearings and criminal identification procedures.

HB15-1073 corrects a confusing and unreasonable decision handed down by the Colorado Supreme Court in Francen v. Dept. of Revenue, which held that, despite language in Colorado statutes permitting drivers to challenge the basis for police contact in appealing a driver's license revocation based on the Express Consent law mandating chemical testing of suspected impaired drivers, DMV hearing officers did not have to ignore evidence obtained from improper/unconstitutional vehicle stops.  The new law requires DMV hearing officers to suppress evidence resulting from an invalid or unconstitutional stop of an appellant driver, legislatively overruling Francen.

SB15-58 will require all state law enforcement agencies to adopt procedures relating to eyewitness identifications with the aim of improving the accuracy of suspect IDs.  Recent studies have shown that many witness ID methods employed by law enforcement are unreliable and susceptible to serious bias/error; this law will attempt to prevent past common procedures that have come to be proven problematic at best and utterly unreliable at worst.

The Rest of the Story About the Proposed Felony DUI Law

We've been hearing a WHOLE lot of misinformation coming from the media and proponents of the felony DUI bill before the Colorado General Assembly...here are the arguments, and why they aren't telling you the whole story...

1. "We need to send repeat offenders to jail!"  Newsflash...we already DO!  Minimum MANDATORY ten days for a second offense and minimum MANDATORY sixty days for a third/subsequent offense.  Most judges impose a minimum of six months on a third offense, and often max offenders out at a year.

2.  "Even if it's your tenth DUI, the most jail you can serve is one year!"  That is correct, but what they fail to mention is that repeat offenders are GUARANTEED to go to jail under current law; the new law would not guarantee felony DUI offenders would do any time at all.  In fact, the original sponsor of the initial bills offered in earlier sessions admitted that felony DUI offenders were likely to get probation rather than jail/prison.

3.  "There needs to be a deterrent so DUI offenders won't repeat!"  Available statistics from states that have passed similar felony DUI laws show that these laws have had NO deterrent effect on reducing DUI recidivism.

4. "Drunk drivers who injure/kill people should face felony charges!"  Another newsflash...CO law already makes it a felony to cause death or serious bodily injury while driving under the influence--the offenses are vehicular assault and vehicular homicide, respectively.

5.  "The projected costs of this law have been over-estimated!"  This law is projected to add nearly $20 million in new Department of Corrections costs.  The original bill's sponsor says that estimate is too high because most felony offenders won't be sent to prison but rather placed on probation.  We thought the reason for this law was to mete out greater punishment for repeat DUI offenders?  The proponents seem to be contradicting themselves.

Bottom line:  This is a bill being pushed by politicians who want to appear tough on crime.  The fact is, CO is tough on DUI offenders, mandating jail for repeat offenders, not to mention the negative consequences regarding driver's licenses.  Even the bill's proponents admit that creating a felony DUI charge will result in LESS incarceration for multiple offenders, not more.

In any case, DUI is a complicated legal charge and the assistance of an experienced attorney is no longer just preferred, it is essential!