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When Is A Colorado Search Warrant Legally Sufficient? – When you have had your car, home or even your person searched pursuant to a search warrant.. it is not an experience you will soon forget.
If a search warrant has been illegally issued or illegally executed – you – as a defendant – have a constitutional right to challenge that warrant.
If you file a Motion to Suppress you are called the “moving party.” You are seeking suppression of the evidence that can be used against you at trial. Recent Colorado cases have held that – as the moving party – you, the defendant have “the burden of proof” to allege and show that the search or seizure in your case violated your right to privacy under the Fourth Amendment.
A motion to suppress under Crim. P. 41(e) is a claim that defendant’s Fourth Amendment rights have been violated.
Here Is The Relevant Section In Question – Rule 41(e)
(e) Motion for Return of Property and to Suppress Evidence.
A person aggrieved by an unlawful search and seizure may move the district court for the county where the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that:
(1) The property was illegally seized without warrant; or
(2) The warrant is insufficient on its face; or
(3) The property seized is not that described in the warrant; or
(4) There was not probable cause for believing the existence of the grounds on which the warrant was issued; or
(5) The warrant was illegally executed.
The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.
The motion to suppress evidence may also be made in the court where the trial is to be had. The motion shall be made and heard before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court, in its discretion, may entertain the motion at the trial.
A motion to suppress must state with reasonable specificity the legal grounds upon which the motion is based.
If you are charged with a crime in Colorado and have been the target of a search – either warrantless or with a warrant, as the defendant under Crim. P. 41 you bear the burden of going forward with a showing that:
(1) the property was illegally seized without a warrant;
(2) (if there was a warrant) – the warrant is insufficient on its face;
(3) the property seized is not that described in the warrant;
(4) there was not probable cause for believing the existence of the grounds on which the warrant was issued;
(5) the warrant was illegally executed.
(Crim. P. 41(e)(1))
If you, as the defendant, satisfy your burden of proof under the Rule – then the prosecution / DA must show that your Fourth Amendment rights were not violated.
The typical allegation of an illegally issued or executed warrant alleges that “[t]he warrant was executed illegally and the scope of the search exceeded the matters set forth in the warrant.”
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Sex Crimes Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.
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