Police seizure and search of a pill bottle

 A Colorado appellate court recently reversed a conviction following the trial court's refusal to suppress evidence (nonprescribed oxycodone pills) obtained as a result of an illegal search of pill bottles found in defendant's car.

Per the 4th Amendment, police search of a seized container's concealed contents must be pursuant to a search warrant or justified by one of the limited exceptions to the warrant requirement.

Mere police observation of an unlabeled prescription pill bottle does not give them probable cause to associate it with criminal activity.  Although they lawfully seized the bottles under the so-called plain view exception to the warrant requirement, police lacked constitutional authority to further inspect (search) them without a warrant.

Because that unlawfully obtained evidence was used to convict defendant, the conviction could not stand and was reversed.

The case is People v. Alemayehu, 2021 COA 69.

Are releases and injury waivers enforceable?

In Redden v. Clear Creek Skiing Corporation, 490 P.3d 1063 (Colo. App. 2020), the Colorado appellate court recently rejected the case of a Loveland area skier injured while getting off a chair lift.  

Instead, the court upheld the validity of two "exculpatory agreements," a waiver which skier Redden signed nearly a year before the incident when she bought ski boots and had her ski bindings adjusted at defendant Clear Creek's ski shop, and another unsigned waiver consisting of a series of disclaimers listed on the back of her lift ticket.

Though fact specific, the take away is that claim releases, injury waivers, risk disclaimers, liability limits and the like may be enforceable and have ramifications much later, even if contained in the so-called fine print most people read over quickly (if at all).

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As an update, the profession's respected Colorado Lawyer (April 2023 edition) contains a lengthy article by plaintiff's personal injury lawyers asserting (p. 45) "Redden holds that, under exculpatory waivers and releases built into season pass agreements or printed on lift passes, skiers [now] waive their rights to ... sue Colorado ski area operators" for negligence.  The Colorado Supreme Court declined to review the Redden decision, thus making it Colorado law.

Unlawful Arrests

We've all heard that police need probable cause to arrest.  What does that mean exactly?  Can't police arrest you anyway?

Probable cause means reason to believe a crime is being (or was) committed and the person arrested committed it.  Absent a written warrant (which takes time, planning and effort - plus probable cause - to get from a judge or magistrate), it is required to make a "lawful" (a constitutionally valid) arrest.

Of course people with badges, uniforms, guns, tasers, clubs, handcuffs, helpful buddies and sheer "official" force -  have the power to arrest ("take into custody") pretty much anyone anytime.  Fighting with police and resisting arrest are not good ideas.  However, if there is no probable cause, evidence obtained (like confessions or admissions, searches, fingerprints, DNA, contraband etc.) generally is subject to being suppressed (excluded) from a related criminal case against the arrested person.  

For example, recently the Colorado Court of Appeals reversed a murder conviction because "the show-up identification and gunshot residue" were obtained as a result of an arrest lacking probable cause following an otherwise valid stop by police.  The case is People v. Oliver, 2020 COA 150.

To be sure, this is small comfort to the person arrested, jailed for who knows how long, hugely inconvenienced, and prosecuted, but typically it is enough to help limit arrests to valid ones.  (Whether there is proof beyond reasonable doubt needed to convict is a whole different story.)  

In more serious cases, including where the suspect is roughed up, or bad faith otherwise is apparent, a civil lawsuit against the arresting agency and personnel, seeking money damages, might be available as a remedy (usually a long shot in any event).

Like the song says, Just because you've got the power, doesn't mean you've got the right.  (Motorhead:))

- Sanderson Law, P.C.  We can help.