v. Delage — Searches and Seizures —Consent —Voluntariness

1               Opinions of the Colorado Supreme Court are available to the
2           public and can be accessed through the Judicial Branch’s homepage at
3             http://www.courts.state.co.us. Opinions are also posted on the
4             Colorado Bar Association’s homepage at http://www.cobar.org.
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6                                                        ADVANCE SHEET HEADNOTE
7                                                                      May 29, 2018
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9                                        2018 CO 45
0
1   No. 15SC630, People v. Delage — Searches and Seizures —Consent —Voluntariness
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3         In this case, the supreme court considers whether the voluntariness of consent to

4   a search in Colorado must be proven by “clear and convincing evidence” or by “a

5   preponderance of the evidence.” The court holds that the People must prove by a

6   preponderance of the evidence that a search was consented to voluntarily in order to

7   overcome a motion to suppress evidence obtained in that search.

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2

3                         The Supreme Court of the State of Colorado
4                           2 East 14th Avenue • Denver, Colorado 80203


5                                           2018 CO 45

6                              Supreme Court Case No. 15SC630
7                            Certiorari to the Colorado Court of Appeals
8                             Court of Appeals Case No. 12CA1936
9                                           Petitioner:
0                              The People of the State of Colorado,
1                                                v.
2                                          Respondent:
3                                       Thomas B. Delage.

4                                      Judgment Reversed
5                                             en banc
6                                           May 29, 2018
7
8   Attorneys for Petitioner:
9   Beth McCann, District Attorney, Second Judicial District
0   Mitchell R. Morrissey, District Attorney, Second Judicial District
1   Robert J. Whitley, Chief Appellate Deputy District Attorney
2   Victoria M. Cisneros, Deputy District Attorney
3     Denver, Colorado
4
5   Attorneys for Respondent:
6   Douglas K. Wilson, Public Defender
7   Lynn Noesner, Deputy Public Defender
8     Denver, Colorado
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0
1
2
3
4
5
6   JUSTICE HART delivered the Opinion of the Court.
7   JUSTICE GABRIEL 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.”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


1   We granted certiorari on a single issue:
         1. Whether this court should continue to hold the People to the unduly
            high standard of proving by “clear and convincing evidence” that a
            defendant’s consent to search was voluntary, when the Colorado
            Supreme Court case credited for requiring this standard does not stand
            for that proposition, and the United States Supreme Court espouses
            that “preponderance of the evidence” should be the controlling
            standard for suppression hearings.




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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.


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¶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 hearings should impose no greater burden than proof by a preponderance

of the evidence.”). See also Bourjaily v. United States, 483 U.S. 171, 175–76 (1987).

¶8     At the same time, the Supreme Court has been clear that “States are free,

pursuant to their own law, to adopt a higher standard.” Lego v. Twomey, 404 U.S. 477,

489 (1972). Thus, we could conclude that Colorado law provides stronger protections


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against unreasonable searches, and, therefore, that the People should be required to

prove more to avoid the suppression of evidence. We decline, however, to do so.

¶9    Requiring the People to prove voluntariness by a preponderance of the evidence

in this context makes sense for a number of reasons. First, we have required trial courts

to apply the preponderance standard in evaluating the very similar question of the

voluntariness of a confession. People v. Valdez, 969 P.2d 208, 210 (Colo. 1998). We

have also adopted that “standard as the controlling norm for determining preliminary

questions relating to admissibility.” People v. Garner, 806 P.2d 366, 370 (Colo. 1991);

People v. Montoya, 753 P.2d 729, 733 (Colo. 1988); People v. Romero, 745 P.2d 1003,

1016 (Colo. 1987). We see no justification for applying a different standard in this

subset of admissibility determinations. Second, we see no compelling justification for

adopting a different standard than that applied under federal law to guarantee the

protections of the Fourth Amendment.

¶10   It is understandable that the court of appeals directed the trial court to apply the

clear and convincing evidence standard in this case. This court has not analyzed the

merits of imposing a higher burden of proof in our own consent-to-search cases than is

required in federal court before today, but language in several of our earlier opinions

and those from the court of appeals did suggest that a stricter standard applied.

Examining these earlier cases, it appears that the genesis of the confusion was a 1977

court of appeals’ decision that incorrectly cited our opinion in People v. Hancock,

525 P.2d 435, 437 (Colo. 1974), for the proposition that proof of voluntariness of consent

must be shown by clear and convincing evidence. See People v. Trujillo, 576 P.2d 179,


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181 (Colo. App. 1977). Contrary to the court of appeals’ suggestion in Trujillo, we did

not adopt a clear-and-convincing-evidence standard (or any standard) in Hancock.

Neither have we done so since. Unfortunately, however, Trujillo’s assertion that we did

was repeated, and was never squarely challenged over the years.2           Until now.

Correcting that error here, we hold that the proper burden for proving the

voluntariness of a consent to search is proof by a preponderance of the evidence—not

proof by clear and convincing evidence.

                                          III.
¶11     Because we conclude that the voluntariness of a consent to search must be

proven by a preponderance of the evidence, we remand the case for further proceedings

consistent with this opinion. On remand, we direct the trial court to re-evaluate the

voluntariness of Delage’s consent to search, applying this standard.


JUSTICE GABRIEL does not participate.




2 In People v. Magallanes-Aragon, because the prosecution conceded that the trial
court’s voluntariness determination would likely have been the same under either
burden of proof, we did not address the People’s contention that the preponderance-of-
the-evidence standard should apply to consensual searches. 948 P.2d 528, 530, 530 n.5
(Colo. 1997). Later, in People v. Chavez-Barragan, we again declined to address
whether the People’s showing of voluntariness by a preponderance of the evidence
would suffice to defeat a defendant’s suppression motion because we concluded that
the People had met the more onerous burden. 2016 CO 66, ¶ 36, 379 P.3d 330, 338, 338
n.5.


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