Authority Of Peace Officer To Make An Arrest — C.R.S. 16-3

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Index

Current law

16-3-101 - Arrest - when and how made.

16-3-102 - Arrest by peace officer.

16-3-103 - Stopping of suspect.

16-3-104 - Arrest by peace officer from another jurisdiction.

16-3-105 - Release by arresting authority.

16-3-106 - Peace officer may pursue offender.

16-3-107 - Custodial care of prisoner in transit.

16-3-107.5 - Transportation of prisoners.

16-3-108 - Issuance of arrest warrant without information or complaint.

16-3-109 - Peace officer, level I - authority to make arrest while off duty.

16-3-110 - Peace officers - duties.

Suggested revisions

16-3-102 - Arrest by peace officer


 

Current law (November, 2002)

16-3-101 - Arrest - when and how made.

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(1) An arrest may be made on any day and at any time of the day or night.

(2) All necessary and reasonable force may be used in making an arrest.

(3) All necessary and reasonable force may be used to effect an entry upon any building or property or part thereof to make an authorized arrest.

 

Source: L. 72: R&RE, p. 197, § 1. C.R.S. 1963: § 39-3-101.

Am. Jur.2d. See 5 Am. Jur.2d, Arrest, § § 11, 81, 85, 87, 89, 91-95, 104.

C.J.S. See 6A C.J.S., Arrest, § § 45, 49, 51-56.

Persons and evidence may be protected. Police officers can, when in hot pursuit and when confronted with exigent circumstances, act to protect themselves and to prevent the destruction of evidence or injury to another. People v. Vaughns, 175 Colo. 369, 489 P.2d 591 (1971) (decided prior to enactment of § 39-3-101, C.R.S. 1963, the earliest source of § 16-3-101).


 

16-3-102 - Arrest by peace officer.

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(1) A peace officer may arrest a person when:

(a) He has a warrant commanding that such person be arrested; or

(b) Any crime has been or is being committed by such person in his presence; or

(c) He has probable cause to believe that an offense was committed and has probable cause to believe that the offense was committed by the person to be arrested.

 

Source: L. 72: R&RE, p. 198, § 1. C.R.S. 1963: § 39-3-102. L. 77 : (1)(c) amended, p. 850, § 1, effective May 20.


 
I. General Consideration.
II. Arrest Pursuant to Warrant.
III. Warrantless Arrest.
A. In General.
B. Commission of Crime.
C. Probable Cause.

 
I. GENERAL CONSIDERATION.

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Am. Jur.2d. See 5 Am. Jur.2d, Arrest, § § 9, 10, 25, 26, 39, 42, 47, 49.

C.J.S. See 6A C.J.S., Arrest, § § 7, 8, 10, 11, 16-28, 46-48.

Law reviews . For article, "Criminal Law", see 32 Dicta 409 (1955). For article, "Highlights of the 1955 Legislative Session — Criminal Law and Procedure", see 28 Rocky Mt. L. Rev. 69 (1955). For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For comment, "Payton v. New York: The Supreme Court Reverses the Common Law Warrantless Arrest Requirements", see 58 Den. L.J. 197 (1980). For article, "The Demise of the Aquilar-Spinelli Rule: A Case of Faulty Reception", see 61 Den. L.J. 431 (1984). For comment, "People v. Thomas: Furtive Gestures as an Element of Reasonable Suspicion — The Ongoing Struggle to Determine a Standard", see 61 Den. L.J. 579 (1984). For article, "Criminal Procedure", which discusses a recent Tenth Circuit decision dealing with stops and arrests, see 62 Den. U.L. Rev. 165 (1985). For article, "Using Local Police Powers to Protect the Environment", see 24 Colo. Law. 1063 (1995).

Annotator's note. Since § 16-3-102 is similar to repealed § 39-2-20, C.R.S. 1963, and CSA, C. 48, § 432, relevant cases construing those provisions have been included in the annotations to this section.

Unlawful arrest is not official act. If an arrest is not a lawful one, if it is made under a void warrant or without a warrant in a case where a warrant is required, or if it is not made in such circumstances as justify the arrest without a warrant, the officer is not acting in his official capacity, either by virtue of, or under color of, office; and they are merely his private or personal acts for which his sureties are not liable. Johnson v. Enlow, 132 Colo. 101, 286 P.2d 630 (1955).

And question is for jury. Where there is a dispute in the evidence as to whether there was in fact an unlawful arrest, the question is for the jury. McDaniel v. People, 179 Colo. 153, 499 P.2d 613, cert. denied, 409 U.S. 1060, 93 S. Ct. 558, 34 L. Ed.2d 512 (1972).

The probable cause requirement is applicable whether the arrest is made with or without a warrant. People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976).

An arrest with or without a warrant must stand on firmer ground than mere suspicion. People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971).

Applied in People v. Apodaca, 38 Colo. App. 395, 561 P.2d 351 (1976), aff'd, 194 Colo. 1324, 571 P.2d 1109 (1977); People v. Conner, 195 Colo. 525, 579 P.2d 1160 (1978); People v. Lott, 197 Colo. 78, 589 P.2d 945 (1979); People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979); People v. Smith, 620 P.2d 232 (Colo. 1980); People v. Eichelberger, 620 P.2d 1067 (Colo. 1980); People v. Wolf, 635 P.2d 213 (Colo. 1981); People v. Bustam, 641 P.2d 968 (Colo. 1982); People v. Roybal, 655 P.2d 410 (Colo. 1982); People v. Hamilton, 666 P.2d 152 (Colo. 1983); People v. Florez, 680 P.2d 219 (Colo. 1984).


 
II. ARREST PURSUANT TO WARRANT.

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Even though an arrest warrant is invalid, the arrest may be upheld if the arresting officer had probable cause to believe that an offense had been committed by the defendant apart from the complaint and the officer was confronted with exigent circumstances. People v. Moreno, 176 Colo. 488, 491 P.2d 575 (1971).


 
III. WARRANTLESS ARREST.

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A. In General.

Law reviews. For note, "The Evolution of the Police Officer's Right to Arrest Without a Warrant in Colorado", see 43 Den. L.J. 366 (1966).

Annotator's note. For further annotations concerning warrantless arrests, see § 7 of art. II, Colo. Const.

Authority to arrest outside territorial jurisdictions. All Colorado police officers have the power to make arrests, even when outside of their territorial jurisdictions, when a crime has been committed in their presence. People v. Bloom, 195 Colo. 246, 577 P.2d 288 (1978).

A peace officer has authority to make arrests without a warrant of persons committing or attempting to commit offenses in his presence, whether the offense be a felony or a misdemeanor, of persons who have committed felonies out of his presence, of persons he has reasonable cause to believe guilty of a felony that has been committed, and of persons charged, upon reasonable cause, with having committed a felony. Johnson v. Enlow, 132 Colo. 101, 286 P.2d 630 (1955).

An officer may make an arrest for violation of a misdemeanor without a warrant if the officer has probable cause or reasonable grounds to believe that an offense has been committed and probable cause or reasonable grounds to believe that a certain individual committed that offense. Beyer v. Young, 32 Colo. App. 273, 513 P.2d 1086 (1973).

Only probable cause and exigent circumstances will excuse statutory warrant requirements. People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed.2d 419 (1978).

Absent exigent circumstances, it is necessary to obtain arrest warrant in order to justify entry into private home to make an arrest. People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980).

Even where probable cause exists. Although police officers have probable cause to believe a suspect committed a crime, nevertheless they may not enter a private residence to effect an arrest in the absence of exigent circumstances. McCall v. People, 623 P.2d 397 (Colo. 1981).

Exigent circumstances encompasses compelling need for immediate police action. The doctrine of exigent circumstances encompasses those situations where, due to an emergency, the compelling need for immediate police action militates against the strict adherence to the warrant requirement. McCall v. People, 623 P.2d 397 (Colo. 1981).

People's burden to rebut presumption of unconstitutional arrest without warrant. An arrest without a warrant is presumed to have been unconstitutional, and the state has the burden of rebutting that presumption by showing both that the arrest was supported by probable cause and that it fell within a recognized exception to the warrant requirement. People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980).

The lawfulness of an arrest without a warrant by state officers for a state offense must be determined by state law. People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971).

Remedy for violation of arrest warrant requirement is the exclusion of evidence seized which is tainted as "fruit of the poisonous tree". People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed.2d 419 (1978).

Officer not liable for false arrest and false imprisonment. Where police officer had both probable cause to believe that an offense had been committed and that the plaintiff was the person who had committed it, he was not civilly liable for false arrest and false imprisonment. Beyer v. Young, 32 Colo. App. 273, 513 P.2d 1086 (1973).

Failure of deputy to obtain arrest warrant was justified. People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974).

Voluntary consent by occupant may constitute valid waiver of warrant requirement. A voluntary consent by an occupant of premises authorizing entry by the police for the purpose of effecting an arrest inside the home may constitute, under appropriate circumstances, a valid waiver of the warrant requirement. McCall v. People, 623 P.2d 397 (Colo. 1981).

Entry into home by preconceived deception lacks consent. Where entry into the home is gained by a preconceived deception as to purpose, consent in the constitutional sense is lacking. McCall v. People, 623 P.2d 397 (Colo. 1981).

Appearance in open doorway may excuse warrant. Where defendant was arrested while standing in the open doorway of his apartment, the warrant requirement was excused. People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980).

When detention by police permissible. The police may detain and require identification of a person if they have a reasonable suspicion, based on objective facts, that the person is involved in criminal conduct. People v. Archuleta, 616 P.2d 977 (Colo. 1980).

Applied in Stubert v. County Court, 163 Colo. 535, 433 P.2d 97 (1967).

B. Commission of Crime.

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Arrest not limited to where crime has in fact been committed. The theory that under this section a lawful arrest without a warrant cannot be made unless a crime has in fact been committed and that the person arrested committed it is without merit. Van Camp v. Gray, 440 F.2d 777 (10th Cir. 1971).

However, a court must determine whether the facts available to a reasonably cautious officer at the moment of arrest would warrant his belief that an offense has been or is being committed. People v. Navran, 174 Colo. 222, 483 P.2d 228 (1971).

Warrant is unnecessary where breach of peace witnessed. Schindelar v. Michaud, 411 F.2d 80 (10th Cir.), cert. denied, 396 U.S. 956, 90 S. Ct. 426, 24 L. Ed.2d 420 (1969).

C. Probable Cause.

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This section permits warrantless arrests by an officer when a criminal offense had in fact been committed and the officer had reasonable grounds for believing the person to be arrested had committed the offense. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978).

And such is "constitutional." This section, which authorizes an officer to make an arrest without a warrant when a criminal offense has in fact been committed and he has reasonable grounds for believing that the person to be arrested has committed it, is consonant with the case law of the United States supreme court and the supreme court of Colorado. People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970).

The terms "probable cause" and "reasonable grounds" are substantially equivalent in meaning. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed.2d 709 (1965); People v. Bueno, 173 Colo. 69, 475 P.2d 702 (1970); People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); Glass v. People, 177 Colo. 267, 493 P.2d 1347 (1972).

And so this section authorizing an arrest without a warrant is satisfied if the arresting officer has probable cause or reasonable grounds to believe that a crime has been committed and that the person arrested committed it. Van Camp v. Gray, 440 F.2d 777 (10th Cir. 1971).

For a warrantless arrest, officers must have probable cause to believe not only that an offense had been committed, but that the person to be arrested had committed it. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975); People v. Hoinville, 191 Colo. 357, 553 P.2d 777 (1976).

Probable cause is the touchstone for measuring the right to arrest without a warrant. People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974).

And valid arrest by a peace officer must be supported by probable cause. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Violation of municipal ordinance included. Since the violation of a municipal ordinance is a criminal offense, then as a matter of law, where the police have reasonable ground for believing that defendants have committed such offense, an attempted arrest is altogether lawful and the police would be derelict in the performance of their duty if they refuse to act. Boyer v. Elkins, 154 Colo. 294, 390 P.2d 460, appeal dismissed, 379 U.S. 47, 85 S. Ct. 208, 13 L. Ed.2d 183 (1964).

Flight does not solely justify warrantless arrest. Where the arresting officer knew that a burglary had been committed, his dispatcher had told him of the burglars' purported return, and when he arrived back at the scene he observed the hasty departure of a man who had been talking with the son-in-law, flight may legitimately give rise to suspicion, and evidence of flight may be admissible at trial to show consciousness of guilt, but defendant's running was not in and of itself sufficient to justify a warrantless arrest. People v. Bates, 190 Colo. 291, 546 P.2d 491 (1976).

Exigent circumstances. A police officer may make a warrantless arrest where he has probable cause to believe that the suspect has committed a crime and where the officer is confronted by exigent circumstances. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

Exigent circumstances obviously exist when suspects are speeding from the scene of the crime. To require a warrant would impose an impracticable burden. People v. Cox, 190 Colo. 326, 546 P.2d 956 (1976).

Exigent circumstances sufficient to justify warrantless arrest. People v. Litsey, 192 Colo. 19, 555 P.2d 974 (1976).

Exigent circumstances sufficient to justify warrantless entry into home to make arrest. People v. Williams, 200 Colo. 187, 613 P.2d 879 (1980).

Public security may outweigh warrant preference. When immediate police action is essential to protect the public safety, the warrant preference expressed by this section must, and does, give way to the public security. People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed.2d 419 (1978).

Failure to obtain arrest warrant justified whenever circumstances require immediate action to protect the public safety; this includes the situation where the police are faced with the choice of arresting a suspect without a warrant or allowing him to escape. People v. Cardenas, 42 Colo. App. 61, 592 P.2d 1348 (1979).

Fact that officers may have probable cause to arrest someone else is of no consequence, for, where a defendant is arrested without a warrant, the burden of proving the existence of probable cause in defendant's case is on the prosecution. Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972).

And physical presence with others, in and of itself, does not provide probable cause to arrest, for guilt by association has never been an acceptable rationale. Mora v. People, 178 Colo. 279, 496 P.2d 1045 (1972).

The mere association with one who commits or has committed crimes, standing alone, does not amount to probable cause for arrest. People v. Crespin, 635 P.2d 918 (Colo. App. 1981).

Nor where one merely changes his direction upon seeing police. Where officers already had one suspect in their car and were questioning him when defendant approached, and at a distance of approximately one block from unmarked police car hesitated, then turned and walked the other way, disappearing around a corner, such circumstances did not show probable cause to arrest, especially where there was nothing in the testimony of the officer to indicate that he considered defendant a suspect in the crime in question or a suspect in any other known criminal act. People v. Bueno, 173 Colo. 69, 475 P.2d 702 (1970).

Probable cause deals with the probability that a crime has been or is being committed. People v. Martinez, 173 Colo. 17, 475 P.2d 340 (1970).

The burden of proving probable cause in justification of a warrantless arrest is upon the state. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); People v. Vaughns, 175 Colo. 369, 489 P.2d 591 (1971); People v. Chacon, 177 Colo. 368, 494 P.2d 79 (1972).

But a belief beyond a reasonable doubt is not required. People v. Martinez, 173 Colo. 17, 475 P.2d 340 (1970).

Rather, probable cause deals with probabilities which are not technical, but rather the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed.2d 709 (1965); Lavato v. People, 159 Colo. 223, 411 P.2d 328 (1966); People v. Bueno, 173 Colo. 69, 475 P.2d 702 (1970); People v. Clark, 173 Colo. 129, 476 P.2d 564 (1970); People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978).

Consequently, probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed.2d 709 (1965); Lavato v. People, 159 Colo. 223, 411 P.2d 328 (1966); People v. Bueno, 173 Colo. 69, 475 P.2d 702 (1970); People v. Weinert, 174 Colo. 71, 482 P.2d 103 (1971); People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); Glass v. People, 177 Colo. 267, 493 P.2d 1347 (1972); People v. Williams, 186 Colo. 72, 525 P.2d 463 (1974); People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

Probable cause exists where the facts and circumstances within the arresting officer's knowledge are sufficient to warrant a person of reasonable caution to believe an offense has been or is being committed. People v. Rueda, 649 P.2d 1106 (Colo. 1982); People v. Martinez, 689 P.2d 653 (Colo. App. 1984).

Probable cause arises only where the facts and circumstances within the officer's knowledge suffice to warrant a reasonably prudent person in the belief that the person to be arrested committed or is committing a criminal offense. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Although precise point of officer's belief cannot be determined. If the circumstances at the time of an arrest are sufficient to justify a finding that probable cause existed, the court will so find even though the precise point at which the officer's hunch became suspicion and then progressed to reasonable belief is impossible to determine with certainty. Lanford v. People, 176 Colo. 109, 489 P.2d 210 (1971).

This level of probability must exist at the actual moment of arrest, and must be based on known facts, not on mere rumor or conjecture. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Suspicion and rumor alone would fall short of probable cause. Lucero v. People, 165 Colo. 315, 438 P.2d 693, cert. denied, 393 U.S. 893, 89 S. Ct. 217, 21 L. Ed.2d 173 (1968); People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).

It is basic that an arrest without a warrant must stand upon firmer ground than suspicion, though the arresting officer need not have in hand evidence which would suffice to convict. People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973); People v. Gonzales, 186 Colo. 48, 525 P.2d 1139 (1974).

Mere suspicion does not constitute probable cause for a warrantless arrest. People v. Montoya, 189 Colo. 106, 538 P.2d 1332 (1975).

Information relied upon to satisfy a warrantless arrest is sufficient if it warrants a reasonably cautious and prudent police officer in believing, in light of his training and experience, that an offense has been committed and that the person arrested probably committed it. However, it need not be of that quality and quantity necessary to satisfy beyond a reasonable doubt. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).

All evidence within knowledge of arresting officer may be considered. In assessing probable cause to arrest without a warrant, all evidence within the knowledge of the arresting officer may be considered even though it may not be competent evidence at trial. People v. Gonzales, 186 Colo. 48, 525 P.2d 1139 (1974).

As well as officer's training and experience. Whether or not the arresting officer reasonably believed a crime had been or was being committed such as to make a warrantless arrest is to be considered in light of the officer's training and experience. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

Same standards for determining probable cause for search or arrest. The same constitutional standards for determining probable cause apply whether a search or an arrest is being effected by police officers, and whether or not the officers have obtained a judicially authorized warrant to arrest or search. People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973).

Probable cause standards applicable with or without warrant. Probable cause standards for searches or arrests are applicable whether of not the police have obtained a warrant. People v. Burns, 200 Colo. 387, 615 P.2d 686 (1980).

Probable cause is measured by facts of particular case. The quantum of information which constitutes probable cause for a warrantless arrest must be measured by the facts of the particular case. People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973).

The circumstances in each case of warrantless arrest must be considered to determine the reasonableness of police action and the existence of probable cause. People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974).

Even if the information received by an officer from an informer is hearsay, such information from a reliable informer corroborated by the officers' own observations is sufficient to support a reasonable belief that a crime is being committed. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed.2d 709 (1965).

For the reasonably trustworthy information relied on may be based upon hearsay and need not be evidence sufficiently competent for admission at the guilt-finding process. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).

In fact, either heavy or almost exclusive reliance on hearsay does not destroy the validity of an arrest without a warrant. Lucero v. People, 165 Colo. 315, 438 P.2d 693, cert. denied, 393 U.S. 893, 89 S. Ct. 217, 21 L. Ed.2d 173 (1968).

The "Aguilar" test for determining probable cause for arrest based upon information received from a police informer is as follows:

First, the officer must know the underlying circumstances from which the informant concluded that a crime was being or had been committed by the accused; and second, there must be underlying circumstances from which the officer concluded that information received was reliable. (Based upon Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed.2d 723 (1964)). People v. Martinez, 173 Colo. 17, 475 P.2d 340 (1970).

The test to measure probable cause to arrest, which is based upon information provided by a confidential informant, is met by setting forth the underlying circumstances which established that the informant had a basis in fact for his information and also provided facts which supported the reliability of the informant. People v. Fratus, 187 Colo. 52, 528 P.2d 392 (1974).

First prong of "Aguilar" met. Where informer was not just relying on suspicion or rumor but stated with particularity details of stolen check, such as, amount, payee, maker, and endorsement, and also stated that defendant had talked with him, showed him the check, and told him of defendant's own attempt to cash it, these underlying circumstances were sufficient to lead a reasonable person to believe that a crime had been or was being committed, as they met the first prong of the "Aguilar test" for determining probable cause for arrest. People v. Martinez, 173 Colo. 17, 475 P.2d 340 (1970).

And the second prong of the test was met by virtue of the following evidence: (1) That the informant had previously given reliable information to police; (2) verification by the officer that the stolen check was missing by talking to the payee before defendant's arrest; (3) defendant was riding in the same car described by the informant; and (4) prior to arrest defendant was seen by the officer putting an envelope in a small paper sack. Hence, when such evidence was considered as a whole, it was sufficient for the officer to reasonably believe that informant's information was reliable. People v. Martinez, 173 Colo. 17, 475 P.2d 340 (1970).

Totality of circumstances test. Since the Aguilar-Spinelli two-pronged test for determining probable cause has been abandoned by the United States supreme court in Illinois v. Gates (462 U.S. 213, 103 S.Ct. 2317, 76 L. Ed.2d 527 (1983)) in favor of the totality of the circumstances test, such test was used by the court to make the probable cause determination. People v. Gallegos, 680 P.2d 1294 (Colo. App. 1983); People v. Sullivan, 680 P.2d 851 (Colo. App. 1983).

No factor alone is conclusive in establishing exigent circumstances necessary for a warrantless arrest, as the totality of the circumstances must be examined. People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed.2d 419 (1978).

Informant's information must be reliable. When a tip is received from a confidential informant, there must also be information supplied which establishes the credibility of the informant or indicates that the information was reliable. People v. Hubbard, 184 Colo. 225, 519 P.2d 951 (1974).

Uncorroborated accusation by an informant whose identity and reliability remains untested cannot constitute probable cause. People v. Williams, 186 Colo. 72, 525 P.2d 463 (1974).

When the source of the information is a citizen-informant who was an eyewitness to the crime and is identified, the information is presumed to be reliable, and the prosecution is not required to establish either the credibility of the informant or the reliability of his information. People v. Hubbard, 184 Colo. 225, 519 P.2d 951 (1974); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978).

Presumption as to trustworthiness of citizen-informant. Although one who qualifies as a "citizen-informant" is presumed trustworthy, this presumption only relates to the likelihood of truthfulness, not to the weight to be accorded the information provided. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Report to authorities does not make uncorroborated speculation probable. Uncorroborated speculation and conjecture by an inexperienced citizen is not transformed into probability by a report to the authorities. Different standards govern observations by experienced peace officers. People v. Severson, 39 Colo. App. 45, 561 P.2d 373 (1977).

Where there is conflicting evidence as to several critical points regarding an informant's information, the prerogative for deciding whether or not probable cause for arrest without a warrant is established is within the domain of the trial judge and, absent a showing of abuse of this prerogative, a reviewing court will not overturn a trial court's ruling. People v. Trujillo, 179 Colo. 428, 500 P.2d 1176 (1972).

Furthermore, details of the crime given to investigating officers by the victim of the crime can be relied upon by the officers and can furnish the basis for their conclusion that a crime had been committed and that certain described persons probably committed it. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).

And where, after investigation, an officer, by his own knowledge, knows that an offense has been committed and corroboration of the suspect's name is obtained by identifying photographs, the officer has probable cause for arrest without a warrant. Lucero v. People, 165 Colo. 315, 438 P.2d 693, cert. denied, 393 U.S. 893, 89 S. Ct. 217, 21 L. Ed.2d 173 (1968).

But it is not necessary for the arresting officer to know of the reliability of the informer or to be himself in possession of information sufficient to constitute probable cause, if he acts upon the direction of, or as a result of, communication with a brother officer or that of another police department and provided the police as a whole are in possession of information sufficient to constitute probable cause to make the arrest. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971).

Thus, a police officer has the right to rely upon information relayed to him by his fellow law enforcement officers. People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971). As the fellow-officer rule permits a police officer to rely upon and accept information provided by another officer in determining whether there is probable cause for warrantless arrest. People v. Vaughns, 175 Colo. 369, 489 P.2d 591 (1971).

So when police officers are informed by a telephone call from officers in another jurisdiction from which a package of contraband was sent, the officers have probable cause to arrest a person without a warrant when he claims the package. People v. Hankin, 179 Colo. 70, 498 P.2d 1116 (1972).

All officers at arrest need not be informed. Where the officer who made the arrest had talked to the informant and had knowledge of all of the facts comprising probable cause, whether another officer who was present at the arrest was aware of the information given by the informant is immaterial. People v. Crespin, 635 P.2d 918 (Colo. App. 1981).

Illegal arrest cannot be justified. Neither the fellow-officer rule nor the validity of an exchange of information between police officers can justify an otherwise illegal arrest. People v. Hubbard, 184 Colo. 225, 519 P.2d 951 (1974); People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978).

By claiming package, defendant becomes an active participant. Where officers had probable cause to believe that a course of criminal conduct involving packaged contraband had been initiated in another state in which defendant was likely to become involved and defendant appears to claim the package, then, under the circumstances, the defendant became an active participant in the criminal conduct for which his arrest could be lawfully effected without a warrant. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).

Moreover, evidence in plain view can be relied on. Where police officers are in a place where they have a right to be, they are not required to close their eyes to evidence in plain view, and the sight of such evidence can properly form the basis for a determination of probable cause to make an arrest. People v. McGahey, 179 Colo. 401, 500 P.2d 977 (1972); Avalos v. People, 179 Colo. 88, 498 P.2d 1141 (1972).

And in a situation involving an "arrangement" by the police to purchase drugs, where an officer, by prearranged signal, flashed his brake lights to indicate to other officers hiding nearby that the deal was completed, whereupon the officers approached a vehicle which had previously pulled up to the scene and ordered its driver to come out, and where, after arresting defendant as he stepped from the vehicle, the officer noticed that a package on the front seat was in plain view, which he seized and which later proved to contain additional quantities of illegal drugs, then, under the circumstances, the officer had probable cause to arrest the driver. People v. Clark, 173 Colo. 129, 476 P.2d 564 (1970).

Also, probable cause existed where marijuana seen while validly checking registration in vehicle. Where an officer detained defendant for an admitted traffic violation and while performing his duties in this regard inquired for the auto registration, which by statute must be either in the possession of the operator or in the vehicle, then, upon the defendant's failure to produce the registration, the officer had the right to look in the vehicle for the registration to inspect it, and when at this time he observed a plastic bag containing what he suspected was, and which turned out to be, marijuana, the officer had probable cause to believe a crime was being committed in his presence and had the right and duty to make an arrest. Marquez v. People, 168 Colo. 219, 450 P.2d 349 (1969).

However, facts must be available prior to arrest. The arrest of a defendant can only be justified by the information available to the officer immediately prior to the arrest, and the discovery of contraband on the person of one who is unlawfully arrested does not validate an arrest. People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970).

Hence, where the mistaken suspicion of an informant on one matter triggered a police investigation which discovered other illegal matters during a search, the officer had no knowledge of any offense being committed in his presence which would have justified the arrest and he had had no report of any crime having been committed in the area by anyone resembling the defendant, and so, since the courts have a responsibility to guard against police conduct which is overbearing or harassing in order to protect the constitutional rights of the individual, the arrest of the defendant was "unreasonable" when tested by the need to arrest under the exigencies of the situation against the invasion of privacy which the arrest entailed, and any evidence obtained was not admissible. People v. Nelson, 172 Colo. 456, 474 P.2d 158 (1970).

Probable cause for arrest without warrant held to exist. Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S. Ct. 1788, 14 L. Ed.2d 709 (1965)(marijuana); People v. Bengston, 174 Colo. 131, 482 P.2d 989 (1971)(marijuana); People v. Ramey, 174 Colo. 250, 483 P.2d 374 (1971); People v. Vaughns, 175 Colo. 369, 489 P.2d 591 (1971); People v. Vigil, 175 Colo. 421, 489 P.2d 593 (1971)(marijuana); Lanford v. People, 176 Colo. 109, 489 P.2d 210 (1971); Hafer v. People, 177 Colo. 52, 492 P.2d 847 (1972); People v. Duncan, 179 Colo. 253, 500 P.2d 137 (1972); People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973); People v. Vaughns, 182 Colo. 328, 513 P.2d 196 (1973); People v. Duleff, 183 Colo. 213, 515 P.2d 1239 (1973)(marijuana); People v. Marquez, 183 Colo. 231, 516 P.2d 1134 (1973); People v. Hubbard, 184 Colo. 225, 519 P.2d 951 (1974); People v. Cruz, 186 Colo. 295, 526 P.2d 1315 (1974); People v. Crespin, 635 P.2d 918 (Colo. App. 1981).

If probable cause for arrest does in fact exist, the officer is entitled to make a reasonable search incident to arrest. People v. Bueno, 173 Colo. 69, 475 P.2d 702 (1970); People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971); People v. Nanes, 174 Colo. 294, 483 P.2d 958 (1971); People v. Hankin, 179 Colo. 70, 498 P.2d 1116 (1972).

And may seize evidence. In a search conducted incident to warrantless arrest, the arresting officers have authority to search for instrumentalities or evidence of the specific crime for which they had probable cause to arrest. People v. Valdez, 182 Colo. 80, 511 P.2d 472 (1973).

If probable cause to arrest is present, evidence can be seized as incident to a lawful arrest. People v. Boileau, 36 Colo. App. 157, 538 P.2d 484 (1975).

An officer conducting a reasonable search, incident to a valid arrest, may seize contraband or articles, the possession of which gives the police officer reason to believe a crime has been committed, even though such articles do not relate to the crime for which the defendant was initially arrested. People v. Ortega, 181 Colo. 223, 508 P.2d 784 (1973).

Probable cause for arrest without warrant not shown. People v. Trujillo, 179 Colo. 428, 500 P.2d 1176 (1972)(burglary).

Where the court finds that probable cause for arrest without a warrant is not shown, the subsequent search and seizures are invalid. People v. Trujillo, 179 Colo. 428, 500 P.2d 1176 (1972).

Evidence obtained subsequent to illegal arrest need not be suppressed, if the taint of the official misconduct has been purged. People v. Henry, 195 Colo. 309, 578 P.2d 1041, appeal dismissed, 439 U.S. 961, 99 S. Ct. 445, 58 L. Ed.2d 419 (1978).

When persons are arrested for minor traffic violations or minor municipal offenses, the instrumentalities or evidence of such crimes is minimal or nonexistent, and thus the scope of a search incident to such a warrantless arrest would be quite limited. People v. Valdez, 182 Colo. 80, 511 P.2d 472 (1973).


 

16-3-103 - Stopping of suspect.

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(1) A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. A peace officer shall not require any person who is stopped pursuant to this section to produce or divulge such person's social security number. The stopping shall not constitute an arrest.(2) When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may conduct a pat-down search of that person for weapons.

(2) When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may conduct a pat-down search of that person for weapons.

 

Source: L. 72: R&RE, p. 198, § 1. C.R.S. 1963: § 39-3-103. L. 83: (1) amended, p. 663, § 2, effective July 1. L. 2001: (1) amended, p. 941, § 9, effective July 1.

Cross references: For the stopping of persons suspected of alcohol- or drug-related traffic offenses, see § 42-4-1302.

C.J.S . See 6A C.J.S., Arrest, § § 38-42.

Law reviews. For comment, "People v. Thomas: Furtive Gestures as an Element of Reasonable Suspicion — The Ongoing Struggle to Determine a Standard", see 61 Den. L.J. 579 (1984). For article, "Criminal Procedure", which discusses a recent Tenth Circuit decision dealing with stops and arrests, see 62 Den. U.L. Rev. 165 (1985). For article, "A DUI Primer", see 16 Colo. Law. 2179 (1987).

Different standards govern full-scale arrest and investigatory stops. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Limited, temporary detention permissible though no probable cause to arrest exists. A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigation of possible criminal behavior even though there is no probable cause for arrest. People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973); People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974).

There is an area of proper police procedure in which an officer having less than probable cause to arrest may temporarily detain an individual for limited purposes. People v. Marquez, 183 Colo. 231, 516 P.2d 1134 (1973); People v. Schreyer, 640 P.2d 1147 (Colo. 1982).

A temporary police detention in the nature of "field investigation" can be justified by less than probable cause for arrest. People v. Stevens, 183 Colo. 399, 517 P.2d 1336 (1973).

Police officers may make a limited stop on less than probable cause. People v. Montoya, 185 Colo. 299, 524 P.2d 76 (1974).

In certain circumstances a police officer having less than probable cause to arrest may stop an individual for identification purposes and not violate the fourth amendment prohibition against unreasonable search and seizure. People v. Mascarenas, 726 P.2d 644 (Colo. 1986).

Where officer has a reasonable suspicion that an automobile temporary sticker has been altered, officer has authority to make a stop under this section since such alteration would constitute a misdemeanor traffic offense. People v. Thomas, 839 P.2d 1174 (Colo. 1992).

In order to lawfully detain an individual for questioning: (1) A police officer must have a reasonable suspicion that the individual has committed, or is about to commit, a crime; (2) the purpose of the detention must be reasonable; and (3) the character of the detention must be reasonable when considered in light of the purpose. People v. Stevens, 183 Colo. 399, 517 P.2d 1336 (1973); People v. Montoya, 185 Colo. 299, 524 P.2d 76 (1974); People v. Mascarenas, 726 P.2d 644 (Colo. 1986); People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Wilson, 784 P.2d 325 (Colo. 1989); People v. Sutherland, 886 P.2d 681 (Colo. 1994); People v. Rodriguez, 924 P.2d 1100 (Colo. App. 1996), aff'd, 945 P.2d 1351 (Colo. 1997).

The first of these requirements is determined by whether there were specific and articulable facts known to the officer, which taken together with rational inferences from these facts, created a reasonable suspicion of criminal activity to justify the intrusion into the defendant's personal security. People v. Mascarenas, 726 P.2d 644 (Colo. 1986); People v. Wilson, 784 P.2d 325 (Colo. 1989).

Permissible purposes for investigatory stops. Investigatory stops constitute an intermediate response by the police between nondetention and arrest. These procedures are permissible only for the purpose of questioning a suspect, who might otherwise escape, regarding his identity or observed behavior in order temporarily to maintain the status quo while seeking to procure more information regarding possible wrongdoing. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Police may detain and require identification if reasonable suspicion of criminal conduct. The police may detain and require identification of a person if they have a reasonable suspicion, based on objective facts, that the person is involved in criminal conduct. People v. Archuleta, 616 P.2d 977 (Colo. 1980).

The reasonableness of an officer's suspicion is determined from the totality of the circumstances in which the suspicion arose. People v. Bell, 698 P.2d 269 (Colo. 1985); People v. Mascarenas, 726 P.2d 644 (Colo. 1986); People v. Coca, 829 P.2d 385 (Colo. 1992).

Officer's suspicion that the defendant's were connected to the reported criminal activity held reasonable given the defendants' evasive actions and their proximity to the location of the reported burglary shortly after the officer received the dispatch call. People v. Mascarenas, 726 P.2d 644 (Colo. 1986); People v. Sosbe, 789 P.2d 1113 (Colo. 1990).

Investigatory stops. A police officer, lacking probable cause to arrest, may stop a person for investigatory purposes if the officer has a reasonable suspicion that the person stopped is involved in criminal activity. People v. Sosbe, 789 P.2d 1113 (Colo. 1990).

Construction of § 42-2-113 inconsistent with this section. A construction of § 42-2-113, which requires that drivers' licenses be displayed to peace officers upon demand, which would give to a police officer unlimited discretionary authority to stop any car at any time for any reason as long as he asked contemporaneously for display of a driver's license would be inconsistent with this section, which specifically limits an officer's authority to stop persons for investigation in the absence of probable cause to arrest. People v. McPherson, 191 Colo. 81, 550 P.2d 311 (1976).

Limited searches of a person for weapons during an investigative detention, when probable cause for arrest is lacking, is permissible, but there must be: (1) Some reason for the officer to confront the citizen in the first place; (2) something in the circumstances, including the citizen's reaction to the confrontation, must give the officer reason to suspect that the citizen may be armed and, thus, dangerous to the officer or others; and (3) the search must be limited to a frisk directed at discovery and appropriation of weapons and not at evidence in general. People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974); People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).

In determining the reasonableness of a search in the situation where the search is not full blown but is rather just a protective search for weapons, the inquiry is a dual one: (1) Was the officer's action justified at its inception; and (2) was the search reasonably related in scope to the circumstances which justified the interference in the first place. People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974).

So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974).

Protective search for weapons is justified only when circumstances of an otherwise valid stop provides the officer with a reasonable basis to suspect person stopped may be armed and dangerous. People v. Ratcliff, 778 P.2d 1371 (Colo. 1989); People v. Sutherland, 886 P.2d 681 (Colo. 1994).

Based not on hunches and limited in scope. In order to uphold the stop and frisk as reasonable, both the initial confrontation and the subsequent search must have been prompted by the officers' reliance on particular facts, rather than on inarticulable hunches, and the scope of the frisk must be limited to that necessary for the discovery of weapons. People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).

Sufficient basis for weapons search to be excepted from warrant requirement. The reasonable apprehension of danger or injury to the police officers — judged by objective standards — provides a sufficient basis for a search to fall within the search for weapons exception to the fourth amendment's warrant requirement. People v. Burley, 185 Colo. 224, 523 P.2d 981 (1974).

Based on the totality of the circumstances, the trial court properly denied defendant's motion to suppress evidence obtained during a vehicle search. Trial court properly found that police officer had reasonable suspicion that defendant was engaged in drug trafficking sufficient to justify the investigatory stop. People v. Ramirez, ___ P.2d ___ (Colo. 1999).

Reasonable grounds to fear suspect armed. Where the arresting officers stopped defendant because he matched description of a suspect who had allegedly committed an act of violence, these circumstances constituted reasonable grounds to fear that the suspect might well be armed, and thus, be potentially dangerous. The officers therefore acted properly in initiating a pat-down search for weapons. People v. Shackelford, 37 Colo. App. 317, 546 P.2d 964 (1976).

Doctrine of allowing investigative stops based upon "reasonable cause" was extended to include information supplied by informants' tips as well as the personal observations of police officers. People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973).

Stop, search, and seizure of evidence reasonable and justified under circumstances even though conduct was compatible with innocent activity. Informant told police there were three males in the area and that one was wearing a poncho and possibly carrying a rifle. When officers spotted three males, one wearing a poncho, they stopped them for questioning. People v. D.F., 933 P.2d 9 (Colo. 1997).

Officers do not have to observe criminal conduct to corroborate anonymous tip. People v. D.F., 933 P.2d 9 (Colo. 1997).

The record revealed no circumstances which could legitimate the stopping of defendant's vehicle as a temporary detention within the contemplation of this section, where the officers had never seen or heard of defendant before, did not even know if drug trafficking actually had taken place in the house under surveillance, and had no reason to believe the sack defendant carried contained drugs, and where defendant did not violate any traffic laws as he drove away. People v. McPherson, 191 Colo. 81, 550 P.2d 311 (1976).

Stopping of defendant held not arrest but proper temporary detention in nature of field investigation. People v. Cruz, 186 Colo. 295, 526 P.2d 1315 (1974).

Detention held a full-scale arrest. People v. Severson, 39 Colo. App. 95, 561 P.2d 373 (1977).

Discovery of evidence of crime while searching for weapons. Where the search was limited to a frisk directed at the discovery and appropriation of weapons, and not to uncover evidence as such, evidence of a crime having thus been lawfully uncovered, it is competent and admissible in evidence as relevant proof of the charges of which defendant is accused. People v. Martineau, 185 Colo. 194, 523 P.2d 126 (1974).

Where police officer obtained probable cause to search a vehicle and seize evidence in the process of making a lawful stop for threshold investigatory purposes, the defendant's motion to suppress this evidence was properly denied. People v. Lucero, 182 Colo. 39, 511 P.2d 468 (1973).

Discovery of evidence of crime while responding to taxicab driver's plea. Where the search was the result of police responding to the plea of a taxicab driver who thought he was about to be robbed, but the search revealed that the defendant, who was the passenger, was in possession of narcotics, the defendant's motion to suppress was properly denied. People v. McNeal, 191 Colo. 490, 553 P.2d 757 (1976).

Seizure of heroin under plain-view doctrine held proper. Where police officer, who had legitimately stopped defendant, observed what he believed to be heroin in plain view on seat of automobile which defendant had just exited, he could seize the heroin under the "plain-view doctrine". People v. Montoya, 185 Colo. 299, 524 P.2d 76 (1974).

Trial court properly suppressed evidence seized during search of defendant when fact that defendant ran in opposite direction from companions did not satisfy constitutional requirement of reasonable suspicion for investigatory stop and scope of resulting search exceeded a pat down for weapons. People v. Wilson, 784 P.2d 325 (Colo. 1989).

There was no probable cause to stop defendant's vehicle where the officer observed a crack in the windshield but could not recall the severity or position of the crack and did not issue a citation for the crack. Evidence that defendant was driving on a suspended license obtained as a result of the unwarranted stop was therefore suppressed. People v. Cerda, 819 P.2d 502 (Colo. 1991).

Trial court properly denied motion to suppress statements made by the defendant between the time he was detained and the time he was actually placed under arrest. The record supported a finding that the defendant was not in custody at the time he was detained as part of a proper investigatory stop, but that he was placed in custody after the arresting officer had probable cause for the arrest based on identification of the defendant by the victim and the finding of an outstanding warrant for the defendant's arrest. People v. Young, 923 P.2d 145 (Colo. App. 1995).

Applied in People v. Taylor, 190 Colo. 144, 544 P.2d 392 (1975); People v. Derrera, 40 Colo. App. 86, 570 P.2d 558 (1977).


 

16-3-104 - Arrest by peace officer from another jurisdiction.

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(1) As used in this section:

(a) "State" means any state of the United States and the District of Columbia;

(b) "Peace officer" means any officer of another state having powers of arrest in that state;

(c) "Fresh pursuit" means the pursuit without unnecessary delay of a person who has committed a crime or who is reasonably believed to have committed a crime.

(2) Any peace officer of another state who enters this state in fresh pursuit and continues within this state in fresh pursuit of a person in order to arrest him on the ground that he has committed a crime in the other state has the same authority to arrest and hold such person in custody as a peace officer of this state has to arrest and hold a person in custody.

(3) Except as otherwise provided by law, if an arrest is made in this state by a peace officer of another state in accordance with the provisions of this section, he shall without unnecessary delay take the person arrested before the nearest available judge of a court of record. Such judge shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful, he shall commit the person arrested to await the time provided by law for issuance of an extradition warrant by the governor of this state, or the waiver thereof, and shall set bail if the offense is bailable under the laws of the state of Colorado. If the judge determines that the arrest was unlawful, he shall order the discharge of the person arrested.

 

Source: L. 72: R&RE, p. 198, § 1. C.R.S. 1963: § 39-3-104.

Am. Jur.2d. See 5 Am. Jur.2d, Arrest, § § 69, 72.

C.J.S . See 6A C.J.S., Arrest, § § 16-18.

Law reviews. For article, "Criminal Procedure in Colorado — A Summary, and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950)(written under repealed CSA, C 48, § 564).

Three criteria used in determining "fresh pursuit". Three criteria are to be utilized in analyzing what police activity can be categorized as fresh pursuit. They are: (1) The police must act without unnecessary delay; (2) the pursuit must be continuous and uninterrupted, but there need not be continuous surveillance of the suspect or uninterrupted knowledge of his whereabouts; and (3) the relationship between the commission of the offense, the commencement of the pursuit, and the apprehension of the suspect — the greater the length of time, the less likely the police action constituted fresh pursuit. Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979).

Characterization as "fresh pursuit" not precluded even though officer does not follow suspect's route. Where the police responded immediately to a call concerning a hit-and-run accident and promptly pursued the only lead available, the address of the owner of the vehicle, the fact that the officer did not follow the suspect's route did not preclude the characterization of his action as fresh pursuit. Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979).


 

16-3-105 - Release by arresting authority.

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(1) When a person has been arrested without a warrant, he may be released by the arresting authority on its own authority if:

(a) The arresting officer or a responsible command officer of the arresting authority is satisfied that there are no adequate grounds for criminal complaint against the person arrested; or

(b) The offense for which the person was arrested and is being held is a misdemeanor or petty offense and the arresting officer or a responsible command officer of the arresting authority is satisfied that the person arrested will obey a summons commanding his appearance at a later date.

(1.5) No person arrested for any crime or offense, the underlying factual basis of which includes an act of domestic violence as defined in section 18-6-800.3 (1), C.R.S., shall be released at the scene of the alleged crime pursuant to subsection (1) of this section.

(2) If the person is released in accordance with subsection (1) (b) of this section, he shall be given a summons and complaint as provided for in sections 16-2-104 and 16-2-106 and shall sign a written acknowledgment of its receipt and a promise to appear at the time and place specified.

 

Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-105. L. 94: (1.5) added, p. 2034, § 12, effective July 1.

The statutes and procedural rules do not require that person charged with a misdemeanor be given a copy of the complaint prior to being released on bail. Weld County Court v. Richards, 812 P.2d 650 (Colo. 1991).

Applied in People v. Rothe, 43 Colo. App. 274, 606 P.2d 79 (1979).


 

16-3-106 - Peace officer may pursue offender.

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When any peace officer is in fresh pursuit of any alleged offender, having a warrant for his arrest or having knowledge that such warrant has been issued, or, in the absence of an arrest warrant, when the offense was committed in the officer's presence or the officer has reasonable grounds to believe that the alleged offender has committed a criminal offense, and the alleged offender crosses a boundary line marking the territorial limit of his authority, such peace officer may pursue him beyond such boundary line and make the arrest, issue a summons and complaint, or issue a notice of penalty assessment.

 

Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-106.

Am. Jur.2d. See 5 Am. Jur.2d, Arrest, § § 69, 72.

C.J.S. See 6A C.J.S., Arrest, § 18.

Purpose of section. The general assembly, in enacting this section, intended to limit peace officers to exercising their arrest powers and making their law enforcement efforts within the territorial limits of their authority and to require that local peace officers be advised of, and participate in, the extraterritorial law enforcement activities of other peace officers. People v. Wolf, 635 P.2d 213 (Colo. 1981); People v. Florez, 680 P.2d 219 (Colo. 1984).

This section, by negative inference, limits peace officers' authority to arrest to the territorial boundaries of their jurisdiction unless they are in fresh pursuit or are accompanied by officers of the jurisdiction in which the arrest is made. People v. Lindsey, 805 P.2d 1134 (Colo. App. 1990).

Violations of this section are not per se violations of constitutionally protected rights. People v. Thiret, 685 P.2d 193 (Colo. 1984); People v. Vigil, 729 P.2d 360 (Colo. 1986).

When this section has been violated by a peace officer, evidence obtained as a result of the violation should be suppressed if the violation also infringes a constitutional right of the defendant, such as the right to be free from unreasonable searches and seizures. People v. Vigil, 729 P.2d 360 (Colo. 1986).

An arrest in violation of the statute does not mandate suppression of evidence obtained therefrom unless the violation is willful or so egregious as to violate the defendant's constitutional rights. People v. Lindsey, 805 P.2d 1134 (Colo. App. 1990); People v. Loggins, 981 P.2d 630 (Colo. App. 1998).

This section held not to require the suppression of evidence where police officer accompanied injured person to a hospital outside his jurisdiction, emergency room personnel discovered cocaine on the injured person, and the cocaine was delivered to the officer. People v. Loggins, 981 P.2d 630 (Colo. App. 1998).

The departure by an officer from the scene of the crime to get the assistance of other officers, returning forty-five minutes later, did not constitute such a break in the chain of events that at the time of the ensuing arrest he would have been required to have had a warrant, inasmuch as an arrest incidental to fresh pursuit need not be immediate, recognizing that considerable time may be needed to procure necessary assistance; the peace officers had probable cause to arrest, acted without unreasonable delay, and thus a warrant was not required. Schindelar v. Michaud, 411 F.2d 80 (10th Cir.), cert. denied, 396 US 956, 90 S. Ct. 426, 24 L. Ed.2d 420 (1969) (decided under repealed § 39-14-5, C.R.S. 1963).

Where the police officer began chasing the defendant in Denver and remained in fresh pursuit until the automobile was finally stopped in Aurora, his authority to partake in the arrest and related matters in the form of an inventory search existed beyond the boundaries of his original jurisdiction by virtue of this section. People v. Roddy, 188 Colo. 55, 532 P.2d 958 (1975).

"Fresh pursuit" defined as in section 16-3-104. Although the definition in § 16-3-104(1)(c) was promulgated by the general assembly to define "fresh pursuit" as used in that section, it is persuasive in defining the same term as used in this section. Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979).

Three criteria used in determining "fresh pursuit". Three criteria are to be utilized in analyzing what police activity can be categorized as fresh pursuit. They are: (1) The police must act without unnecessary delay; (2) the pursuit must be continuous and uninterrupted, but there need not be continuous surveillance of the suspect or uninterrupted knowledge of his whereabouts; and (3) the relationship between the commission of the offense, the commencement of the pursuit, and the apprehension of the suspect — the greater the length of time, the less likely the police action constituted fresh pursuit. Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979).

Characterization as "fresh pursuit" not precluded even though officer does not follow suspect's route. Where the police responded immediately to a call concerning a hit-and-run accident and promptly pursued the only lead available, the address of the owner of the vehicle, the fact that the officer did not follow the suspect's route did not preclude the characterization of his action as fresh pursuit. Charnes v. Arnold, 198 Colo. 362, 600 P.2d 64 (1979).

Execution of arrest warrant where no fresh pursuit. Where the element of "fresh pursuit" is not present, it is immaterial who executes an arrest warrant provided that individuals with lawful authority to make an arrest are actually present at the scene of the arrest and participate in the arrest process. People v. Schultz, 200 Colo. 47, 611 P.2d 977 (1980).

Applied in People v. Lott, 197 Colo. 78, 589 P.2d 945 (1979).


 

16-3-107 - Custodial care of prisoner in transit.

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It is lawful for any peace officer who has the custody of any alleged offender following an arrest to pass through any counties which lie on his route between the place of arrest and the county to which he is taking the alleged offender and to lodge him in any jail on his route for safe custody for one night or more, as the occasion requires.

 

Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-107.


 

16-3-107.5 - Transportation of prisoners.

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(1) As used in this section, unless the context otherwise requires:

(a) "Contracting entity" means any person or entity contracting with this state, another state, or a political subdivision of this or another state to transport a prisoner; except that "contracting entity" shall not include the department of corrections, any community corrections program operated pursuant to this title, or a county sheriff of a county located within the state of Colorado.

(b) "Prisoner" means any person convicted of an offense in Colorado or any other state or any person under arrest for suspicion of the commission of a crime in Colorado or any other state.

(c) "Secure facility" means a county, city and county, or municipal jail or a nonstate-owned prison facility, as defined in section 17-24-125 (1) (b), C.R.S.

(d) "Supervising individual" means a person employed by a contracting entity to transport prisoners from one location to another.

(e) "Transport" means to move a prisoner within, into, out of, or through the state of Colorado.

(2) (a) A supervising individual in each vehicle in which one or more prisoners are being transported by a contracting entity shall maintain a log book that documents for each prisoner:

(I) His or her name, date of birth, social security number, and any prescribed medication;

(II) The name of the jurisdictional authority authorizing the transportation, the date and time that the prisoner was first picked up, and the date and time that the prisoner was released to the jurisdictional authority;

(III) The date, time, length, and purpose of any stop made by the vehicle transporting any prisoner; and

(IV) Information concerning any injuries suffered by the prisoner while being transported.

(b) Upon request, a supervising individual shall surrender for inspection the log book required by paragraph (a) of this subsection (2) to any federal, state, county, or municipal law enforcement officer.

(3) Whenever a prisoner is transported by a contracting entity, the prisoner:

(a) At a minimum, shall be shackled and placed in a transport belt or chains with handcuffs and shall be under the observation of at least one supervising individual who shall remain awake;

(b) (Deleted by amendment, L. 2000, p. 852, § 59, effective May 24, 2000.)

(c) Shall not be shackled to another prisoner; and

(d) Shall have available in the vehicle in which the prisoner is being transported appropriate attire for the season, including footwear.

(3.5) Any vehicle in which one or more prisoners are being transported by a contracting entity shall only contain as many individuals as the vehicle was designed to carry.

(4) (a) At least once every twenty-four hours that a prisoner is being transported by a contracting entity, the prisoner shall be housed unshackled in a cell at a secure facility for a period of not less than six hours and permitted to shower and sleep.

(b) The contracting entity or the supervising individual shall, if practicable, notify the chief law enforcement officer in charge of the secure facility in which the prisoner is to be housed, at least twenty-four hours prior to the delivery of the prisoner to the secure facility, of each prisoner's name, date of birth, criminal history, and any special medical needs.

(5) Whenever a vehicle transporting one or more prisoners for a contracting entity stops for more than two hours for any reason:

(a) The supervising individual shall promptly notify, if practicable, the law enforcement agency of the local jurisdiction in which the vehicle is stopped; and

(b) All prisoners shall be housed in a secure facility unless, according to the chief law enforcement officer of the secure facility, it would be impractical to do so.

(6) Whenever a vehicle transporting prisoners for a contracting entity enters the state, a supervising individual shall promptly notify the Colorado bureau of investigation of the number of prisoners and the location or locations within the state where the vehicle is scheduled to stop.

(7) Whenever a prisoner is housed in a secure facility, the contracting entity shall pay to the operator of the secure facility providing the housing the actual cost of housing the prisoner.

(8) Any individual or entity who violates any provision of subsections (2) to (5) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than five thousand dollars.

(9) If any prisoner being transported escapes due to the negligence of the contracting entity or a supervising individual, the contracting entity shall be held liable for all actual costs incurred by any governmental entity in recapturing the escaped prisoner and all actual damages caused by the escaped prisoner while at large.

 

Source: L. 98: Entire section added, p. 699, § 1, effective May 18. L. 2000: (3)(b) amended and (3.5) added, p. 852, § 59, effective May 24.


 

16-3-108 - Issuance of arrest warrant without information or complaint.

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A court shall issue an arrest warrant only on affidavit sworn to or affirmed before the judge or a notary public and relating facts sufficient to establish probable cause that an offense has been committed and probable cause that a particular person committed that offense. The court shall issue a warrant for the arrest of such person commanding any peace officer to arrest the person so named and to take the person without unnecessary delay before the nearest judge of a court of record. Once a person is brought before the judge, the Colorado rules of criminal procedure are applicable.

 

Source: L. 72: R&RE, p. 199, § 1. C.R.S. 1963: § 39-3-108. L. 95: Entire section amended, p. 463, § 3, effective July 1.

Am. Jur.2d. See 5 Am. Jur.2d, Arrest, § § 16, 18, 20.

C.J.S. See 6A C.J.S., Arrest, § § 10, 16.

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962).

Annotator's note . Since § 16-3-108 is similar to repealed § 39-2-3, C.R.S. 1963, relevant cases construing that provision have been included in the annotations to this section.

An arrest warrant is not appropriate where there are no facts to show that the arrestee has yet committed a criminal offense. People v. Hively, 173 Colo. 485, 480 P.2d 558 (1971).

But federal warrants supported by affidavits provide basis for arrest. Even though the complaint filed by a district attorney, standing alone, would not support an arrest warrant because no facts were set forth to establish probable cause, where federal warrants were supported by affidavits which complied with all constitutional requirements, they provided a legitimate basis for an arrest. Sergent v. People, 177 Colo. 354, 497 P.2d 983 (1972).

Applied in People v. Schultz, 200 Colo. 47, 611 P.2d 977 (1980).


 

16-3-109 - Peace officer, level I - authority to make arrest while off duty.

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A peace officer, level I, as defined in section 18-1-901 (3) (l) (I), C.R.S., who, while off duty, is employed in a capacity specifically permitted by policies and procedures adopted by such officer's governmental entity employer shall possess the status and authority which would otherwise be afforded an on-duty level I peace officer acting within the course and scope of such officer's employment. To be within the scope of this section, a level I peace officer employed by a nongovernmental entity must be in uniform with the peace officer's public entity badge plainly visible, or such level I peace officer must have been approved for plain clothes work by the peace officer's governmental employer.

 

Source: L. 92: Entire section added, p. 438, § 1, effective June 3. L. 93: Entire section amended, p. 1776, § 36, effective June 6.


 

16-3-110 - Peace officers - duties.

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(1) For the purposes of this section, "peace officer" means:

(a) A peace officer, level I, or peace officer, level Ia, as defined in section 18-1-901 (3) (l) (I) and (3) (l) (II), C.R.S., respectively; or

(b) A federal law enforcement officer who, pursuant to federal statutes and the policy of the agency by which the officer is employed, is authorized to use deadly physical force in the performance of his or her duties.

(2) A peace officer shall have the authority to act in any situation in which a felony or misdemeanor has been or is being committed in such officer's presence, and such authority shall exist regardless of whether such officer is in the jurisdiction of the law enforcement agency that employs such officer or in some other jurisdiction within the state of Colorado or whether such officer was acting within the scope of such officer's duties when he or she observed the commission of the crime, when such officer has been authorized by such agency to so act. The local law enforcement agency having jurisdiction shall be immediately notified of the arrest and any person arrested shall be released to the custody of the local law enforcement agency.

(3) This section shall not be construed to authorize any federal officer to use deadly physical force in excess of that authorized in section 18-1-707, C.R.S.

 

Source: L. 93: Entire section added, p. 703, § 1, effective July 1. L. 96: Entire section amended, p. 735, § 4, effective July 1.


 

Suggested revisions

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Proposed changes follow the format:

• Text in ordinary font is language that exists now.

Note: indicates intention of proposed changes.

• Language to be removed is indicated by striking it out.

• Language to be added is indicated by text in [ non-proportional Courier font] surrounded by square brackets [ ].

16-3-102 Arrest by peace officer

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(1) A peace officer may arrest a person when:

(a) He has a warrant commanding that such person be arrested; or

(b) Any crime has been or is being committed by such person in his presence; or

Note: An officer should not take the word of others as to what crime has occurred unless it is borne out by his own investigation. Further, with modern communications there should be no reason that a warrant can't be obtained if a crime occurred more than four hours previously.

(c) He has probable cause [ based on his own investigation ] to believe that an offense [ a felony] was committed [within the past four (4) hours] and has probable cause to believe that the offense was committed by the person to be arrested.

Note: All too often arrests are made in domestic violence cases based on nothing more than hearsay and with no real evidence that violence has occurred or will occur if a party is not arrested. Aside from the civil liberties issue, such arrests clog both law enforcement facilities and the courts with trivial cases.

[(d) He has probable cause to believe that violence has occurred and that the person or persons to be arrested were a party to that violence.]

Note: Why take an officer off the streets for several hours to make a misdemeanor arrest if there is no discernible danger?

[(e) If the crime an officer witnesses is a misdemeanor and there is no stated or perceivable further danger to life or property, the officer shall issue a summons rather than arresting the person or persons responsible.]

Note: With modern communications there is no conceivable reason a warrant cannot be obtained to arrest a person who remains on their own property.

[(2) A person remaining within or on the threshold of his house or other dwelling, or on property he owns, rents, or leases may not arrested without a warrant unless the officer witnessed the crime or has probable cause to believe that violence has occurred or will shortly occur if an arrest is not made.]

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