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Colorado Arrests – Searches At The Time of An Arrest

By Colorado Criminal Defense Lawyer for the protection of your Constitutional Rights- H. Michael Steinberg

Colorado Arrests – Searches At The Time of An Arrest – is a question raised by my clients over and over. How far can they search when they arrest me? Can they rummage through my car if I am in handcuffs?

A path breaking recent decision of the United States Supreme Court – Arizona v Gant – changed the answer to this question in a very dramatic way.

Colorado Arrests - Searches At The Time of An Arrest

Colorado Arrests – Searches At The Time of An Arrest

First – The Basics Of The Fourth Amendment

The Fourth Amendment applies when:

1) the intrusion is the product of government action;

2) the intrusion breaches society’s reasonable expectation of privacy;


3) the intrusion breaches the legitimate expectations of privacy of the individual in question.

The new case was Arizona v. Gant – but before discussing the Gant decision – let’s look at the standard answer to the question that existed for decades…. The old law – New York v. Belton and Thornton v. Unites States.

In New York v. Belton, (1981) The Supreme Court held that -incident to an arrest in a vehicle, the police may search entire passenger area of the car and all packages in that area even if the car’s occupants have been removed from the car, so long as the occupants have been lawfully arrested and the search is contemporaneous with the arrest

And in…

Thornton v. United States,(2004) In an even more recent case – the Supreme Court held that incident to an arrest, the police may search a vehicle’s passenger compartment even when the officer does not make contact until the person has already left the vehicle, if the person was a “recent occupant.” The concerns of officer safety and evidence destruction are identical whether the suspect

Arizona v. GantChanged Everything: 

 Colorado Arrests - Searches At The Time of An Arrest

Colorado Arrests – Searches At The Time of An Arrest – Arizona v. Gant,(2009)

In Gant, the Supreme Court held that the police may search the passenger compartment of a car incident to a recent occupant’s arrest only if it “is reasonable to believe” that the arrestee might access the car at the time of the search or that the car contains evidence of the offense of arrest.

What Was Gant About?

Gant was arrested for driving on a suspended license. He was handcuffed and secured in squad car at the time that officers searched his car. They found cocaine. The Supreme Court focused on the fact that since a search incident to arrest – (which is an exception to the Fourth Amendment’s warrant requirement) – derives from interests of officer safety and preservation of evidence that are implicated in arrest situations. 

Police may search a vehicle incident to a recent occupant’s arrest only when:

(1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search


(2) it is reasonable to believe that evidence regarding the arrest might be found in the vehicle.

As a result of the Gant case – Police officers may not search a vehicle incident to arrest for a crime that would not yield evidence in the passenger compartment of the vehicle.

Whether or not a suspect is a “recent occupant” will depend on the time and space in the situation – that is “the suspect’s temporal and spatial relationship to the vehicle.”

When there is no vehicle is involved, then the area that may be searched pursuant to this exception is limited to the reaching distance, or area in the immediate control, of the suspect.

So a backpack on a nearby park bench was NOT close enough to the defendant to be searched incident to arrest. A backpack found 8 to 12 feet from the place of the defendant’s arrest is not within the defendant’s lunge area for purposes of a search incident to arrest.

Colorado Addressed This Question In The Recent Decision of People v. Marshall (2012)

In the Marshal case- the Colorado Supreme Court reversed the lower – trial court’s order suppressing contraband obtained during the search of defendant’s backpack, finding that a search of a container on or near the defendant incident to his lawful arrest was lawful.

The Colorado Supreme Court found that the Gant decision does not apply to a backpack at the feet of a suspect who has been lawfully arrested. They found that Gant did not modify the well-established rule regarding searches incident to a lawful arrest, and that the trial court made an error by suppressing the evidence found in the backpack.

During the lawful arrest of Marshall on indecent exposure charges the officer handcuffing Marshall, searched him and found a baggie of marijuana and two cell phones in his right front pants pocket. The officer then placed Marshall in the back of the squad car. While one officer placed Marshall in the police car, the other officer opened Marshall’s backpack and smelled marijuana. That officer found six individual bags of marijuana weighing 7.4 grams total, an assortment of prescription pills, and a digital scale.

Marshall was then charged with possession with intent to manufacture or distribute marijuana, possession of a schedule-three controlled substance, and five habitual criminal count

Conclusion – Colorado Law – Search Incident to Lawful Arrest – Some Rules 

  • A search incident to a lawful arrest is one of the specifically established exceptions to the warrant requirement.
  • An officer may search a lawfully arrested individual’s person and the area within the arrestee’s immediate control.

“A person, under full custodial arrest based on probable cause, loses his expectation of privacy under the Fourth Amendment as to those items on his person at the time of his arrest.”

“In contrast to the search of a vehicle, the arrest of a person necessarily involves greater officer safety concerns because, unlike items in the compartment of a vehicle, the arrested individual might still be able to access those items on his person even after arrest. Similarly, because the items remain in close proximity to an arrested individual, he might still be able to access that evidence.”

Please call our law firm if you have questions about ..

Colorado Arrests – Searches At The Time of An Arrest

H. Michael Steinberg has been a Colorado criminal law specialist attorney for 30 years (as of 2012). For the first 13 years of his career, he was an Arapahoe – Douglas County District Attorney Senior prosecutor. In 1999 he formed his own law firm for the defense of Colorado criminal cases.

In addition to handling tens of thousands of cases in the criminal trial courts of Colorado, he has written hundreds of articles regarding the practice of Colorado criminal law and frequently provides legal analysis on radio and television, appearing on the Fox News Channel, CNN and Various National and Local Newspapers and Radio Stations. Please call him at your convenience at 720-220-2277. 

In the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg provides quality legal representation to those charged in Colorado adult and juvenile criminal matters.

H. Michael’s Primary Territory:

The Colorado Steinberg Criminal Defense Law Firm serves clients charged with criminal offenses in the Denver Metro Region and throughout Colorado, including Adams County, Arapahoe County, Boulder County, Broomfield County, Denver County, Douglas County, Jefferson County, Larimer County, El Paso County, Pueblo County, Weld County and Grand County; and communities such as ; Centennial, Denver, Boulder, Aurora, Lakewood, Littleton, Westminster, Thornton, Northglenn, Brighton, Greenwood Village, DTC, Denver Tech Center, Highlands Ranch, Castle Rock, Lone Tree, Englewood, Golden, Grand Junction and all across the Front Range.

If you have questions about Colorado Arrests – Searches At The Time of An Arrest in the Denver metropolitan area and throughout Colorado, attorney H. Michael Steinberg will be pleased to answer those questions and will provide quality legal representation to those charged in Colorado with adult and juvenile criminal matters as regards …Colorado Arrests – Searches At The Time of An Arrest.

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H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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