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Colorado Arrests Without a Warrant (Warrantless Arrests) The Law of Hot Pursuit and Warrantless Searches…

Warrantless Searchesor Entries Under Emergency (Exigent) Circumstances

This section is about the right of the police to make a warrantless search when the time it takes to get a warrant would jeopardize public safety or lead to the loss of important evidence.

Here are some situations in which most judges would uphold a warrantless search or entry into a residence:

An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.

Following a street drug arrest, an officer runs into the house after the suspect shouts into the house, “Eddie, quick, flush our stash down the toilet.” The officer arrests Eddie and seizes the stash.

A police officer in hot pursuit of a fleeing armed robbery suspect continues the chase into the suspect’s
house, where the officer arrests and searches the suspect.

A police officer on routine patrol hears shouts and screams coming from a residence, rushes in and
arrests a suspect for spousal abuse.

A police officer responding to a “loud party” complaint observes underage drinking and fighting going on inside the residence where the party is taking place (Brigham City v. Stuart, U.S. Sup. Ct. 2006).

In these types of emergency situations, an officer’s duty to protect people and preserve evidence outweighs the warrant requirement.

Arrests Without A Warrant: The Law

As the name implies, a warrantless arrest is simply an arrest without a warrant. When police officers make a warrantless
arrest, a judge does not have a chance to determine ahead of time whether the police have probable cause to make the arrest. Nevertheless, the Fourth Amendment probable cause requirement remains the same. For a suspect to remain in custody following an arrest, the police must speedily satisfy a judge or magistrate that they had probable cause to make the arrest (Gerstein v. Pugh, U.S. Sup. Ct. 1975).

When can a police officer legally make a warrantless arrest?

Assuming that they have probable cause to make an arrest, police officers can legally make warrantless arrests in these two circumstances:

• When the crime is committed in the officer’s presence. For example, a police officer, on routine patrol, sees a driver strike a pedestrian and drive off without stopping (the crime of “hit and run”). The police officer can pursue the driver and place him in custody.

• When the officer has probable cause to believe that the suspect committed a felony, whether or not the deed was done in the officer’s presence. 

Some examples: 

1. While on routine patrol, Officer Martin comes upon Fred Rowan, an individual possessing—and apparently under the influence of— cocaine. Rowan tells Officer Martin that he had bought the cocaine moments earlier from a man around the corner wearing a dark business suit and white loafers. Peering around the corner, Officer Martin sees a suspect matching that description standing on the street.

Question: Does Officer Martin have probable cause to place the suspect described by Rowan in custody?

Answer: Yes. The officer did not personally see the suspect sell the cocaine to Rowan. But selling drugs is a felony everywhere, and Rowan’s appearance and information gives the officer probable cause to believe that the suspect had committed that crime.

2: Officer Winter is told by Mr. Summer, a security guard in an electronics store, that Summer personally saw a red-haired teenage girl wearing a leather jacket bearing the logo “Cafe Rock Hard” and tennis shoes take a $75 Panasonic Portable CD player from the store without paying for it. A few hours later, Officer Winter sees a red-haired girl dressed as Summer described sitting in a park listening to a Panasonic Portable CD player.

Question: Can Officer Winter place the girl in custody?

Answer: No. Even if the girl is guilty, the information given to Officer Winter indicates that, at most, the girl committed a misdemeanor commonly called shoplifting. Since Officer Winter did not personally see the act, he would need to submit an affidavit and obtain an arrest warrant before placing the girl in custody. The officer can, however, issue the girl a citation ordering her to appear in court to answer to a misdemeanor shoplifting charge. However, if the CD player had been worth more than several hundred dollars, Officer Winter could make the arrest on probable cause because the theft would be a felony rather than a misdemeanor.

The bottom line: Warrantless arrests are generally okay if probable cause exists, except if a police officer arrests a suspect for a misdemeanor not committed in the officer’s presence.

Colorado Law of Warrantless Arrests:

(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 16-2-106and shall sign a written acknowledgment of its receipt and a promise to appear at the time and place specified. 

An Important Exception:  Your Home

Can the police make a warrantless entry into my home to arrest me?

Police officers generally need to obtain arrest warrants before arresting suspects in their dwellings (Payton v. New York, U.S. Sup. Ct. 1980). If necessary, another officer can be posted outside a home to prevent a suspect’s escape during the time it takes to obtain the warrant.

However, warrantless in-home arrests are valid under certain circumstances if “exigent circumstances” exist that make
it impracticable for the police to obtain a warrant. Examples of exigent circumstances are:

A police officer who is in hot pursuit of a fleeing suspect who runs into a house or apartment will not generally be required to break off the chase and obtain a warrant.

1: Officer Hernandez arrests Frick for taking part in a string of burglaries. After Frick is taken into custody, he confesses and names Frack as the other person who took part in the burglaries. Frick also tells Officer Hernandez where Frack lives. Officer Hernandez immediately goes to Frack’s house, demands admittance, and arrests Frack.

Question: Is Frack’s arrest proper?

Answer: No. Officer Hernandez should first have gotten a warrant for Frack’s arrest. Officer Hernandez was not in hot pursuit of Frack, and no other emergency circumstances justify the officer’s going into Frack’s home without a warrant.

A police officer who believes that someone in the home is in danger and gains entry for that reason may
then arrest the owner without a warrant.

A police officer who is let into the home by someone answering the door may make the arrest without a warrant.

Do the police have to knock before entering my home to arrest me?

It depends. In the typical case where the police are entering a home to arrest a suspect pursuant to a warrant, the police are supposed to follow what are sometimes called “knock and notice” rules that vary from state to state. But, the police usually need not announce their presence in advance if:

they are in hot pursuit of a fleeing suspect (fresh Pursuit);
they believe that someone is being harmed in the house;
they have reasonable grounds to suspect that announcing their presence might put them in danger;
or
they have reasonable grounds to suspect that announcing their presence would allow a suspect to escape or destroy evidence.

  • 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).

The Actual Colorado Law: 16-3-106  – Peace officer may pursue offender (Fresh Pursuit)

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.

Some Cases interpreting this law:

Purpose of section. The general assembly, in enacting this section, intended tolimit peace officers to exercising their arrest powers and making their law enforcement efforts within the territorial limits of their authority and torequire 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 arrestis 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 asa result of the violation should be suppressed if the violation also infringes aconstitutional right of the defendant, such as the right to be free fromunreasonable searches and seizures. People v. Vigil, 729 P.2d 360 (Colo. 1986).

Anarrest 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 thecocaine 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 constitutesuch a break in the chain of events that at the time of the ensuing arrest hewould have been required to have had a warrant, inasmuch as an arrest incidentalto fresh pursuit need not be immediate, recognizing that considerable time maybe needed to procure necessary assistance; the peace officers had probable causeto arrest, acted without unreasonable delay, and thus a warrant was notrequired. Schindelar v. Michaud, 411 F.2d 80 (10th Cir.), cert. denied, 396 US956, 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).

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).


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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
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