Your Rights Regarding Police "Knock and Talk" Contacts

Many people are unaware of their basic Constitutional rights when it comes to warrantless police contacts at the entrance of a residence. A recent Colorado Court of Appeals case, People v. Nelson, gives a comprehensive summary and review of these "knock-and-talk" situations.

Everyone knows that police can enter a home without consent if they have a valid search and/or arrest warrant. But what happens when the police show up at your door just wanting to "talk and have a look around?" In the Nelson case, police officers acting on a tip of illegal drug use, actually said they were maintenance personnel in an attempt to get Mr. Nelson to open the door of his apartment. Once Mr. Nelson opened the door, officers spied what appeared to be drug paraphernalia inside the apartment and another man running into the back of the apartment. Officers entered the apartment and arrested both Mr. Nelson and the other occupant. Officers then obtained consent from Mr. Nelson's girlfriend to search the rest of the apartment and conducted a search over Nelson's objection. Drugs and paraphernalia were found and the police later obtained a search warrant and a search of the entire apartment turned up more drugs and weapons.

The Court of Appeal held that the ruse of posing as maintenance personnel to get Nelson to open the door of his apartment was legally permissible, as long as it did not extend to coercing Nelson to actually admit the officers. The Court went on to justify the warrentless entry of the apartment by holding that it was reasonable for the officers to conclude that the man running was trying to flee, obtain a weapon or destroy evidence, and such circumstances established a need for immediate response. However, the Court held that the consent of the girlfriend to conduct a further warrantless search of the apartment after the arrest of Nelson and the other man was not valid because of Nelson's objection. Citing the 2006 U.S. Supreme Court case of Georgia v. Randoph which held that consent to search a premises is not valid unless all residents present consent to the search, the Court held that evidence obtained from the consent search was inadmissible. However, the Court went to to hold that, even when discounting the suppressed evidence of the consent search, there was sufficient probable cause to justify the subsequent search warrant and the fruits thereof.

To summarize, police cannot enter a residence without a warrant unless the resident grants consent or exigent circumstances exist that necessitate immediate police entry and response. Police can use deception in getting someone to open the door, but cannot use deception in gaining consent for entry. The lessons from the Nelson case: 1) You should never open the door for someone you do not know; and 2) You never have to admit law enforcement into your home unless they present a valid warrant, and you never have to consent to police entry or search of your home.

Drug Court Launched for Arapahoe and Douglas Counties

Commencing October 14, Douglas and Arapahoe Counties will be served by a new "Recovery Court," traditionally referred to as a drug court. These courts are alternative sentencing mechanisms designed to reduce the number of defendants convicted of drug offenses who are sentenced to jail by placing them in a comprehensive supervision and treatment program that is overseen directly by a judge. Persons sentenced to drug court must appear regularly before the judge to have their compliance and recovery progress reviewed, and if necessary, modify certain aspects of their supervision.

The program has been used for several years now in Denver, where it has shown noticeable success in reducing both the jail population and recidivism. Denver has also pioneered a similar review court system for DUI offenders, but so far no other jurisdictions have followed suit.

Several sentencing alternatives may be available to criminal defendants here in Colorado, depending on the offense and surrounding circumstances. Before pleading guilty to any crime, an experienced criminal defense attorney should be consulted in order to learn the various possible consequences of a criminal conviction.

No Per Se Levels for Marijuana DUI...For Now

The DUI(Drugs)--Marijuana Working Group, operating under the auspices of the Colorado Commission on Criminal and Juvenile Justice, has decided not to recommend a specific blood-level concentration of THC, the intoxicant contained in marijuana, to establish per se proof of intoxication and/or impairment. Earlier this year, the Colorado General Assembly addressed the issue (HB 11-1261) and decided that there was insufficient scientific evidence to conclusively establish that a particular level of THC resulted in intoxication and/or impairment in drivers. The aim of the bill was to establish a THC level that could be accepted as prima facie evidence that a person was impaired or under the influence with respect to operating a motor vehicle, much as the .08 and .05 alcohol levels operate to establish whether a driver is under the influence and impaired under current state law. Given the far greater use of marijuana in light of relaxed Colorado laws pertaining to marijuana use and possession in recent years, the Colorado criminal justice system has seen a significant increase in the number of cases alleging driving under the influence or driving while ability impaired caused by marijuana use.

The decision by the Working Group reinforces the findings by the General Assembly that, at least for the time being with the level of scientific knowledge and research available, THC levels cannot be used to conclusively establish intoxication or impairment in a broad application to the population as a whole. It is unlikely, however, that we have heard the last of the debate on this issue. A charge of driving under the influence or while ability impaird by marijuana is a serious charge that can be even more complex than a similar case involving alcohol, and an experienced attorney is essential in helping a defendant assess his legal options.

Members of the Working Group include marijuana legal advocate Sean McAllister, Arapahoe County Sheriff Grayson Robinson, State Judicial Department rep Heather Garwood, Division of Behavorial Health rep Christine Flavia, Colorado Spring Police rep Rod Walker, Eagle County DA Mark Hurlbert and drug addiction counselor Laura Spicer. Their formal report will be presented to the Commission next week.

Denver Adopts "Sobriety Courts" for Repeat DUI Offenders

Repeat DUI offenders in Denver will now be given the opportunity to participate in the city's "Sobriety Court" program as an alternative to lengthy jail sentences traditionally imposed. Based on the "Drug Court" program that has enjoyed extended success, defendants with previous drug/alcohol-related driving offenses can participate in an intense court-supervised treatment regimen that requires frequent (often weekly) reviews by the court of the defendant's progress in the program. Before institution of this new option, most judges relied on lengthy jail sentences of six months or more in addressing cases involving DUI/DWAI defendants with more than one prior offense. The goal of the program is to ensure complete compliance with substance-abuse treatment regimens and prevent recidivism. It has been reported that in Denver, about a third of alcohol-related driving offenses are committed by previous offenders.

Criminal Defense Bar Seeks Public's Assistance in Enforcing New Consent Search Law

Earlier this year, Colorado's new law went into effect requiring officers who conduct consent searches without probable cause to advise the party searched that they have the right to refuse consent (see earlier posts below on this subject). The Colorado Criminal Defense Bar is seeking to ensure that this law is observed and enforced, and requests that anyone who was subjected to a consensual search since June of this year without the required advisement being given to contact Art Way at (303) 867-0305 or art@progressivecoalition.org.

In most cases, law enforcement officers must have, at a minimum, probable cause to search a person or his/her property. However, if a person grants consent to search, probable cause is not necessary. Beginning this summer, officers in Colorado are required to advise a person from whom consent to search is sought to advise the person that their consent must be voluntary and that they have a right to refuse consent to search. Evidence that is obtained illegally may be excluded in court--an experienced attorney is essential in evaluting these situations.

COA: No Statutory Preference for State's Chemical Test in Determining "Persistent Drunk Driver"

The Colorado Court of Appeals has ruled that Department of Revenue hearing officers cannot, as a matter of law, disregard conflicting chemical test evidence in determining whether a driver is a "persistent drunk driver" under Colorado law. In Garcia v. Huber, a Dept. of Revenue hearing officer refused to consider the driver's independent chemical test results which conflicted with the state's blood test results which showed the driver's BAC at .174, claiming that Colorado statute established legal preference for chemical tests conducted by the state over private testing done on behalf of the driver. The COA clearly found that, while a preference for state-conducted tests exists in determining Blood/Breath Alcohol Content for per se revocations, no such preference exists regarding BAC levels in determining whether a driver is a "persistent drunk driver."

Colorado law provides enhanced criminal penalties and harsher driver's license restrictions for persons found to be "persistent drunk drivers." In order for a person to be designated a "persistent drunk driver," he/she must be found driving a vehicle with a Blood/Breath Alcohol content of .170 or greater. This is but one example of the many unique provisions of Colorado DUI law which necessitate the assistance of an experienced attorney to understand all implications of this type of criminal charge.

COA: No "Good Faith" Exception to Unlawful Entry Element of "Make My Day" Law

The Colorado Court of Appeals has ruled that there is no intruder "good faith" exception concerning the unlawful entry element of Colorado's "Make My Day" law. In People v. Zukowski, the defendant was convicted of first degree assault of a person who entered the defendant's condominium after 1 AM. The defendant was denied pre-trial immunity based on the "Make My Day" law, but asserted the law as an affirmative defense at trial. At trial, the jury was instructed, in part, that "...in order for the [Make My Day defense] to apply, the other person's unlawful entry into the dwelling must have been made in knowing violation of the criminal law. An entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law." (emphasis added) On appeal, the COA ruled that the instruction was not in accordance with the "Make My Day" statute, which makes no such provision for a "good faith" exception to the unlawful entry element of the defense. As a result, Zukowski's conviction was reversed and the case remanded for a new trial consistent with the COA's ruling.

To review, Colorado law provides immunity and/or an affirmative defense when the occupant of a dwelling uses deadly force against a person who has unlawfully entered the occupant's dwelling and the occupant has a reasonable belief that the intruder 1) has committed, is committing or intends to commit a crime inside the dwelling other than the unlawful entry, and 2) uses or may use physical force, no matter how slight, against any occupant of the dwelling. All three elements--unlawful entry, additional criminal activity, and use/threat of force against an occupant--must be present to assert immunity/defense under "Make My Day." This is but one example of many legal defenses that can be asserted to refute criminal charges; anyone charged with a crime should consult an experienced attorney to explore all possible legal defenses.