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People v. Delage

Supreme Court of Colorado, En Banc

May 29, 2018

The People of the State of Colorado, Petitioner
v.
Thomas B. Delage. Respondent

          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.

          OPINION

          HART JUSTICE

          ¶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."[1] 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.

         I.

         ¶2 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.

         ¶3 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.

         II.

         ¶4 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).

         ¶6 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. 1993)).

         ¶7 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 ...


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