Chapter 4 - § 4.1 • SUPPRESSION ISSUES GENERALLY

• Jurisdiction: Colorado

§ 4.1 • SUPPRESSION ISSUES GENERALLY

§ 4.1.1—Overview of Suppression Issues

While every DUI case is unique, virtually all cases fall into certain patterns and raise certain issues relating to the suppression of evidence on constitutional grounds. DUI cases begin with an initial contact between a driver and the police, usually as the result of some sort of bad driving. The initial stop is followed by an investigation of the initial offense, during which the police uncover evidence of intoxication. Roadside sobriety maneuvers are administered to the driver, a preliminary breath test (PBT) may be administered, and the driver is arrested for DUI or DUID. A chemical test of the driver's breath, blood, or urine is obtained. Throughout this process, statements are obtained from the driver and observations are made about the driver's behavior. Less frequently, the initial contact occurs as the result of a roadblock, the investigation of another offense, or as a consensual encounter, and this contact then turns into a DUI investigation along the lines just described. This section addresses the constitutional issues raised by this investigative process.

Each of these steps in the investigative process may be challenged by a defendant on constitutional grounds. If a court determines that the initial stop of the defendant's vehicle was an unconstitutional intrusion, then the stop and all evidence acquired as a result of the stop must be suppressed. If the court finds the initial stop to be valid, the court may still find that subsequent actions were unconstitutional, and must suppress evidence obtained after an unconstitutional action. The granting of a motion to suppress all evidence obtained as a result of a stop may well gut the prosecution's case and result in either a dismissal of the charges, a non-alcohol-related disposition of the charges, or an interlocutory appeal by the prosecution.

The suppression of evidence obtained in violation of the constitution is mandated by the exclusionary rule. The use of the exclusionary rule to suppress probative and trustworthy evidence has many critics. "The criminal is to go free because the constable has blundered" is the famous criticism of Justice Cardozo in People v. Defore, 150 N.E. 585, 587 (N.Y. App. 1926). The question whether the exclusionary rule is of constitutional dimension, or merely a court rule, was put to rest in Dickerson v. United States, 530 U.S. 428 (2000). Dickerson addressed an attempt by Congress to overturn the decision in Miranda v. Arizona, 384 U.S. 436 (1966), by legislating the criteria governing the admissibility of a defendant's statements. Dickerson, 530 U.S. at 437. The Fourth Circuit had concluded that Miranda created a non-constitutional rule pursuant to the court's supervisory powers, but the U.S. Supreme Court rejected this analysis and concluded that "Miranda announced a constitutional rule that Congress may not supersede legislatively." Id. at 444.

Miranda related to statements and the exclusionary rule as employed to enforce the Fifth Amendment. The Court has not specifically addressed whether the exclusionary rule, as used to enforce the Fourth Amendment, has the same constitutional character. The Dickerson decision supports the conclusion that it does. Clearly, until the Supreme Court holds otherwise, suppression is the tool employed to enforce the constitutional protections guaranteed by the Fourth and Fifth Amendments.

Defense motions challenging the propriety of the police action may be premised on either federal or state constitutional grounds, or both. A defendant wishing to raise an issue under the state constitution needs to be explicit, and a court deciding an issue on state constitutional grounds must be explicit as well. "In the absence of a clear statement that a suppression ruling is grounded on state as opposed to federal constitutional law, [the Colorado Supreme Court] will presume that a court relied on federal law in reaching its decision." People v. McKinstrey, 852 P.2d 467, 469 (Colo. 1993).

A state court interpreting a state constitution is, of course, free to rule that the state constitution provides greater protection than does the federal constitution. The Colorado Supreme Court has found that the Colorado Constitution creates greater protection than does the U.S. Constitution in certain circumstances. See People v. Oates, 698 P.2d 811 (Colo. 1985) (beepers in commercially purchased, sealed containers); People v. Corr, 682 P.2d 20 (Colo. 1982) (telephone toll records); People v. Sporleder, 666 P.2d 135 (Colo. 1983) (telephone pen registers); People v. Haley, 41 P.3d 666, 672 (Colo. 2001) (a dog sniff); but see People v. Esparza, 272 P.3d 367 (Colo. 2012) (a dog sniff is not entitled to greater protection than that...