Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 12CA1936
Attorneys for Petitioner: Beth McCann, District Attorney,
Second Judicial District Mitchell R. Morrissey, District
Attorney, Second Judicial District Robert J. Whitley, Chief
Appellate Deputy District Attorney Victoria M. Cisneros,
Deputy District Attorney Denver, Colorado
Attorneys for Respondent: Douglas K. Wilson, Public Defender
Lynn Noesner, Deputy Public Defender Denver, Colorado
GABRIEL JUSTICE does not participate.
¶1 This case presents us the opportunity to clarify
whether the voluntariness of consent to a search in Colorado
must be proven by "clear and convincing evidence"
or by "a preponderance of the
evidence." Under federal law, the answer is clear, as
the United States Supreme Court explained more than forty
years ago that voluntariness need only be shown by a
preponderance of the evidence. We hold today that in Colorado
courts the same standard applies and that the People must
prove by a preponderance of the evidence that a search was
consented to voluntarily in order to overcome a motion to
suppress evidence obtained in that search.
Thomas B. Delage was stopped by police when they spotted him
and a companion at 3 a.m. in an alleyway that had been the
scene of recent thefts from cars. Both men were carrying
backpacks and flashlights and they were standing next to
several parked cars. During the ensuing interaction between
Delage and the officers, the police searched Delage's
backpack and found methamphetamines. At a hearing about the
admissibility of the drugs, Delage and the officers involved
gave differing accounts of the details and duration of the
stop. Among other differences, the officers alleged that
Delage twice gave consent to the search of his backpack while
Delage denied having done so at all.
Applying a preponderance-of-the-evidence standard, the trial
court found that "it is probably more likely true than
not there was consent under the circumstances given." On
that basis, the trial court denied Delage's motion to
suppress the methamphetamines. The court of appeals agreed
with the trial court's assessment that Delage had given
consent, but the panel noted that the court had not
considered whether Delage's consent was voluntary.
Because consent must be voluntary to be valid, the court of
appeals vacated Delage's conviction and remanded,
instructing the trial court to consider whether the People
had proven by "clear and convincing evidence" that
Delage's consent was voluntary. The People petitioned for
certiorari, asking us to clarify whether "clear and
convincing evidence" of voluntariness was required or
whether a "preponderance of the evidence" is
instead the proper standard for the voluntariness inquiry. We
granted the petition.
As a threshold matter, we agree with the division below that
the issue of voluntariness must be considered separate and
apart from whether consent to a search was given. We
disagree, however, that the applicable standard for proving
that consent was voluntarily given is "clear and
convincing evidence." Instead, in the face of a motion
to suppress evidence obtained through a consented-to search,
the prosecution must prove by a preponderance of the evidence
that consent to the search was given voluntarily.
¶5 The proper burden of proof is a question of law that
we review de novo. McCallum Family L.L.C. v. Winger,
221 P.3d 69, 72 (Colo.App. 2009).
Both the federal and state constitutions prohibit
unreasonable searches. See U.S. Const. amend. IV;
Colo. Const. art. II, § 7. When the government has
conducted an unreasonable search, the evidence obtained
through that search may be suppressed and therefore not
admitted at trial. See People v. Morley, 4 P.3d
1078, 1080 (Colo. 2000) (defining "the exclusionary
rule" as a "judicially created remedy . . . [that]
operates to suppress evidence obtained in violation of the
Fourth Amendment [of the U.S. constitution] and article II,
section 7 of the Colorado Constitution") (citing
People v. Burola, 848 P.2d 958, 960-61 (Colo.
If an individual voluntarily consents to a search, that
search is reasonable, and suppression of any evidence
obtained is not warranted. See Schneckloth v.
Bustamonte, 412 U.S. 218, 243 (1973); People v.
Licea, 918 P.2d 1109, 1112 (Colo. 1996). The United
States Supreme Court held several decades ago that the burden
of proof for Fourth Amendment suppression issues-including,
but not limited to, the voluntariness of consent to a
search-is proof by a preponderance of the evidence. See
United States v. Matlock, 415 U.S. 164, 177 n.14 (1974)
("[T]he controlling burden of proof at suppression