Mountain Law: Know your rights when a cop stops you
The Fourth Amendment to the United States Constitution and Article II, Section 7 of the Colorado Constitution guarantee the right of people to be secure in their persons against “unreasonable seizures” by law enforcement authorities. In general terms, this means law enforcement cannot arrest a person – i.e. restrict the person’s movement – without having “probable cause” that an offense has been or is being committed. This is an important issue for a person accused of a crime because evidence obtained through an unlawful arrest generally cannot be used by the prosecution at trial, making it more likely the accused will avoid judgment. This article discusses the rules that apply to a common form of seizure known as the investigatory stop.
A law enforcement officer is permitted to stop a person in his vehicle or on the street without having probable cause if the officer reasonably suspects that the person has committed or is about to commit a crime. This type of stop is not technically considered an arrest (even if the officer has a gun drawn) and is instead considered a lesser form of seizure known as an investigatory stop. The officer can require the person stopped to provide identification and explain his actions. If the officer has a reasonable suspicion that the person may be armed, the officer may pat down the person for weapons. Any greater intrusion or detention amounts to an arrest which requires probable cause.
When a law enforcement officer makes an investigatory stop of a motor vehicle, she can order the driver, as well as any passengers, to exit the vehicle pending completion of the stop. The officer may make inquiries of the driver that are reasonably related to the offense being investigated. The officer may search the passenger compartment of the vehicle for weapons if the officer reasonably believes that there is a safety risk. The officer cannot search the trunk of the vehicle without probable cause to do so. The officer may not prevent a passenger from leaving the scene unless the officer has a reasonable suspicion that the passenger is involved in criminal activity. The officer may not unreasonably prolong a vehicle stop or it will be deemed an arrest that requires probable cause.
Law enforcement officers may not routinely use force during investigatory stops without probable cause to support an arrest. However, law enforcement officers may draw their weapons, use handcuffs, place suspects in cruisers, and employ other measures of force if the measures are reasonable to ensure their safety while they confirm or dispel suspicions that a crime has occurred. The fact that a suspect evades law enforcement officers or flees from them is not sufficient grounds by itself to justify an investigatory stop, but if an investigatory stop is otherwise justified, the use of force to prevent a suspect from fleeing may be justified while police officers investigate whether a crime has occurred.
Law enforcement officers are permitted to set up checkpoints for the purpose of conducting suspicionless stops and brief visual examinations of motor vehicles in limited circumstances such as policing borders, ensuring driver sobriety, or looking for violations of fish and game laws. Checkpoints are not permissible if their primary purpose is to uncover evidence of ordinary criminal activity. Generally, law enforcement officers must stop every vehicle at checkpoints rather than stopping vehicles at random.
The law concerning search and seizure has developed through landmark court decisions interpreting the state and federal constitutions … and continues to evolve as new factual situations present themselves. Investigatory stops are one type of seizure that occur with frequency, and everyone should know their rights in this area.
Noah Klug is principal of The Klug Law Firm, LLC, a general law practice in Summit County emphasizing real estate, litigation and business law. He may be reached at (970)468-4953 or Noah@TheKlugLawFirm.com.
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