Fourth Amendment requires law enforcement personnel to toe the line

Katharhynn Heidelberg

MONTROSE - Television crime dramas have reduced the prosecution of fictional defendants to a formula that plays well with audiences. In the real world, though, the Fourth Amendment is king and all the painstaking assemblage of evidence can be in vain, if proper procedure wasn't followed in obtaining it.

The amendment enshrines a citizen's right to be protected from unreasonable searches and seizures, and requires warrants to be issued based on probable cause. But this is only the threshold standard, Richard Brown, current municipal court judge and former district court judge, told a group of Montrose Police officers during a Friday training session.

Since individual states have the authority to apply the rules even more narrowly, officers have to negotiate a legal minefield, being careful not to step on defendants' rights and yet serve the interests of the community as a whole.

"The rule on constitutional law is everybody has to follow what the U.S. Supreme Court says in terms of constitutional law," Brown said. "That is the base standard. Now, states can give their state a more narrow interpretation."

For example, though other states may hold that trespassers have no reasonable expectation of privacy as to the goods they store on land they do not own, Colorado law says they do. Searching a squatter's tent - or even a crude shelter of cardboard boxes - then requires a warrant or permission.

"The U.S. Supreme court would say that person has no standing to file a motion to suppress anything that you find there," said Brown. "But in Colorado now, you have the right of privacy. It's your home. It's your tent."

The doctrine of plain view applies however - that is, if an officer sees suspicious items without actively searching, they are fair game.

Officers do not need a warrant to use a drug-sniffing dog for a vehicle's exterior, but they do need reasonable suspicion. An interior search requires either a warrant or permission - and a cop is always within his or her rights to ask.

The Montrose officers present said they were amazed at the number of people, even those with something to hide, who gave consent, but agreed consent itself could give rise to a thorny issue - for instance, at what point a suspect could withdraw his or her permission for a search.

Brown said that could depend on the type of case - and that each case would in any event be assessed individually. For the most part, though, "once you give consent, it's valid and even if you try to withdraw it, it's still there."

The consent must be valid, that is, given without undue coercion and the search must be within the scope of the consent - permission to search a handbag, for instance, cannot be extended to, say, the suspect's residence. (Though what is found in the handbag could possibly lead to a warrant for the residence).

"It's still ostensibly a good law," Brown said.

The officer who raised the question said he was aware of newer case law that said he must stop a search if a person tells him to before he's found anything suspicious.

"Once I find something, now I have more probable cause to continue the search or get a warrant," he said. (Those speaking did not provide their names.)

"There's case law on the scope of consent," Brown clarified. "You can only search within the scope." He used the example of a valid traffic stop in which the motorist granted permission for a trunk search. "If you start tearing the seats apart, you've exceeded the scope of authority granted by the consent. There's kind of some fine lines here."

This was the basic rule Brown had applied during his stint on the district court bench. "If I found it was a valid consentŠ I would rule you could, with consent to search the trunk, search all reasonable places."

The officers said quite a few issues ultimately hamper cases, particularly attacks on the warrants themselves for being based on "stale" information.

"One of the most common questions I get asked is in reference to staleness, especially when it comes to getting warrants," an investigator said. "The Colorado Court of Appeals just overturned a conviction from here in Montrose, ruling that anything over 30 days was stale. They just kind of threw a blanket over everything."

The evidence, said the investigator, can vary. Stolen property, for instance, may be retained by the suspect, whereas drugs would be quickly disposed of.

Brown said the bases for warrants would be decided on the totality of the circumstances and context of the case. "Sometimes, the ongoing investigations take years. Of course the information is going to be stale."

A patrol officer wanted guidance as to when "fresh pursuit" applied and a clear directive as to when a warrant for arrest was needed. He said he'd been told three different things when it came to the crime of domestic violence - to make an arrest within four hours of the report, or get a warrant; to simply proceed no matter how long it had been; and to make an arrest within 24 hours of the report.

He said the confusion as to fresh pursuit in general was made apparent with the headline-grabbing case of Denver-area suspected rapist Brent J. Brents. The Aurora police had questioned Brents about the molestation of a child and he allegedly confessed, but they let him walk.

"This was a cold report to them," the officer said. Aurora police had no real standing to arrest Brents, but had to forward the complaint to the district attorney for investigation. "Everyone is saying, 'Why didn't you arrest him?' If I had a guy come in and the incident took place three months agoŠand I took him into custody, my butt is going to be in a sling from my administration."

Others said however that they would arrest an individual upon confession.

"I'd do a warrantless arrest affidavit. I think you're covered there." Brown said."

"But my question is, why not on DVs," the officer said.

Brown said judges and attorneys faced similar dilemmas, particularly with a "hot potato" such as domestic violence. In general, he recommended the officers be as specific as possible in their affidavits for warrantless arrests and not to underestimate their own credibility.

"If the evidence and information say a crime has been committed Š and the guy admits to the offense, you can do a warrantless arrest or let him go and get a warrant," said Brown.

Either way would work, he added, as long as the affidavit was written to establish probable cause for the arrest.

"When I'm looking at a warrantless arrest, I apply the same standards (that are applied to a warrant)," he said. "A judge can't assume things. If there is reasonable cause to believe a crime has been committed and that person committed the crime, you've got it."

Contact Katharhynn Heidelberg at katharhynnh@montrosepress.com