Know Your Rights

The Initial Contact with the Defendant

In most cases the initial contact with a defendant begins as an investigatory stop of their car for some kind of traffic offense. A stop to simply investigate is form of police intrusion and while it isn’t an arrest can feel more of an encounter against your consent. Sometimes this happens without probably cause but as an excuse to make contact.

A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime. Suspicion of DUI by a law enforcement officer may lead to stopping any person who the officer reasonably suspects is committing the violation. This enables the officer to question a person about their name, address, and an explanation of his or her actions, even if it doesn’t constitute an arrest.

These can’t override constitutional rights.Threefactor must be considered to make the stop valid:

1) Did the officer have specific basis for suspecting that criminal activity had occurred or was about to take place?

2) Was the purpose of the intrusion reasonable?

3) Were the scope and character of the intrusion reasonable and related to its purpose?

Consensual Encounters and Emergency Contacts

Colorado law recognizes three types of police-citizen contacts: arrests, investigatory stops, and consensual encounters.A consensual encounter is one in which your liberty as a citizen is acknowledged, but the voluntary cooperation of the citizen comes through questioning that might regard you as a suspect. While an investigatory stop is based on the fourth amendment it must be justified by reasonable suspicion while consensual encounter does not.Not all contacts with citizens involve police initially acting in a law enforcement role either. Sometimes police may be acting to protect the public or doing a welfare check for the person contacted.

Most DUI investigations start as non-consensual encounters. Consensual encounter issues do arise in DUI cases sometimes when police are investigating some event unrelated to DUI. They might start off an interaction with a citizen that begins as a consensual encounter but leads to suspicions that the citizen was driving under the influence.

Many issues arise determining investigatory detentions requiring reasonable suspicion and consensual encounters. The test for determining if the encounter is a consensual one is “whether a reasonable person under the circumstances would believe he or she was free to leave and/or to disregard the official’s request for information.” This test may often feel like an issue to an innocent person, although it is clear that most consensual encounters occur when the police approach individuals because they’re suspected of something.

A court making this determination must consider all the circumstances surrounding the encounter. A car is not seized when they are stopped, making it become a fine line between a stop for a reasonable violation or being investigated for some other reason.

Factors that are appropriate for the trial court to consider include:

1. whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights
2. the number of officers present
3. whether the officer approaches in a non-threatening manner
4. whether the officer displays a weapon
5. whether the officer requests or demands information
6. whether the officer’s tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled
7. whether the officer physically touches the citizen
8. whether an officer’s show of authority or exercise of control over an individual impedes that individual’s ability to terminate the encounter
9. the duration of the encounter
10. whether the officer retains the citizen’s identification or travel documents

A person who is unconscious cannot perceive that there has been a show of authority directed against them so while they areunconscious, they cannot be seized within the contemplation of the Fourth Amendment. Someone who is asleep in their vehicle can’t be seized for purposes of the Fourth Amendment until awoken.

There are a number of circumstances that might make a consensual encounter turn into something more, which includes the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use oflanguage or tone of voice indicating that compliance with the officer’s request must happen.

A request for identification by the police does not, by itself, constitute a Fourth Amendment seizure. Additionally, an officer simply checking for warrants does not transform a consensual police encounter into an investigatory stop that allows for suspicion of criminal activity. If an officer keeps a person’s identification and instructs him or her to remain in the car while checking for warrants, the consensual encounter turns into an investigatory stop requiring reasonable suspicion to be justified and a demand for identification may be treated differently from a request for identification.

Federal law is almost identical. Police officers do not violate the Fourth Amendment by identifying themselves as police officers, asking to see identification and travel documents, and posing a few simple questions to a citizen. Further actions by the police can tum a consensual encounter into something more though. If the police identity themselves as narcotics agents, and told someone they were a suspect, asking them to come with them to the police room, and retained his plane ticket and driver’s license, it is because of seizure due to the Fourth Amendment.

The facts surrounding any particular “encounter” are, of course, unique to that encounter. It is nonetheless instructive to look at some particular circumstances reviewed by appellate courts.

Traffic Stops

Assuming that the encounter at issue was not consensual, the court must then evaluate the why the stop occurred. There are three ways to test the reason for an investigatory stop. The first test for the validity of an investigatory stop is whether the officer had an argument and specific basis for suspecting that criminal activity had occurred or was about to take place. The phrase “articulable and specific basis in fact” is equivalent to the phrase “reasonable suspicion,” and the phrases are used interchangeably in cases addressing the issue.

Whether the officer had a reasonable suspicion is determined by the total evidence. The court should consider the facts known to the officer and any reasonable inferences that may be drawn from those facts. The court may look at circumstances that include objective observations by the officer, information obtained by the officer from fellow officers, and consideration of the modes or patterns of certain kinds of criminals.

Due to his or her training and experience, an officer is entitled to make interfering statements that could throw an untrained person off.The officer’s assessment must center on whether there is an actual reason for suspicion that a particular person is engaged in wrongdoing though. Their must be specific reasons the officer acted.

The issue is one of the probabilities which are not technical but are real practical questions of everyday life. Aberrant driving is sufficient by itself to constitute reasonable suspicion. Even a minor traffic violation will provide reasonable suspicion for the stop, and it is not necessary that the defendant be actually cited for the observed violation. A traffic stop is valid under the Fourth Amendment if the stop is based upon an observed traffic violation or if the police officer has a reasonable, articulable suspicion that a traffic or equipment violation has occurred or is occurring.

The U.S. Supreme Court has also held that reasonable suspicion can rest on a reasonable mistake of law if the officer’s cause is reasonable.

Historically, reasonable suspicion to support an investigatory stop has to exist at the time the police began to follow a suspect. More recent decisions have rejected that principle and held that following is usually not a “detention” at all and does not require even reasonable suspicion. In any event, it has long been true that flight or an inappropriate gesture may constitute reasonablesuspicion when combined with other knowledge connecting the defendant with criminal activity. Whether a particular police pursuit of an individual has turned into a “detention” presumably still needs to be determined on a case-by-case basis.

The third test for determining an investigatory stop is whether the scope and character of the intrusion is reasonably related to its purpose. As the purpose of a traffic stop is usually to investigate abnormal driving and give the driver a chance to explain his or her actions, the reasonable scope of a stop is generally limited to asking the driver for identification, and for an explanation of the driving behavior. The officer can ask the defendant to give his or her name, address, and an explanation of his or her actions along with checking for warrants as part of the stop.

The law sees it as proper within the scope of a traffic stop for an officer to ask a defendant whom he observed weaving whether he had been using intoxicants. An officer asking the defendant during a traffic stop where they are going and where they had been does not constitute “custodial” interrogation. When an officer has an objectively reasonable basis to believe the defendant has committed the traffic offense of weaving, the officer has the authority to request the defendant’s name, license, and registration, and to detain the defendant while checking the information’s validity.

Some further intrusions have been held valid as an incident to the primary purpose of the investigatory stop. It does not violate the constitution to require the defendant to get out of his car and walk to the rear of the car in the course of a valid investigatory stop. This intrusion is to provide officer safety. It doesn’t constitute a search of that person.Placing a defendant in the backseat of a patrol car for 15 minutes while officers perform an investigation does not transform an investigatory stop into an arrest.

However, if the questioning and detention of the driver by the officer are more than brief and cursory, then an arrest has occurred, and it must be supported by either probable cause or the consent of the defendant to be valid. The length of the detention must be reasonable in light of the purpose of the stop. A 20 to 30-minute detention waiting for the chief investigator to arrive to question the defendant is unreasonable as part of an investigatory stop and can only be supported if based on probable cause.

It has been concluded that probable cause to arrest a motorist for DUI does not, by itself, constitute a sufficient basis to conduct a warrantless search of the motorist’s car for further evidence of the DUI. Before engaging in such a search, the police must tell someone specific facts that make it reasonable to conclude that evidence linking the defendant to the DUI offense would be found in a search of the vehicle. The fact that drunken drivers often have containers of alcohol in their cars is not, without more, a sufficient basis.

Overview

In the overwhelming majority of cases, the initial contact with the defendant begins as an investigatory stop of the defendant’s car for some traffic offense. An investigatory stop is an intermediate form of police intrusion – less than an arrest but more than a consensual encounter – that may validly occur, in narrowly defined circumstances, with less than probable cause. A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime.