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Colorado Supreme Court Announces ‘Preponderance of the Evidence’ Standard for Determining Voluntariness of Consent to Search

by Dale Chappell

The Supreme Court of Colorado held that the burden of proof in determining whether a person voluntarily consented to a warrantless search is a preponderance of the evidence, rather than the higher clear and convincing evidence standard, thereby clarifying a misapplication by the lower courts over the past 40 years.

After Thomas Delage was searched by the police and drugs were found in his backpack, he moved to suppress the evidence, arguing he never consented to the search. The police, however, claimed he did. The trial court concluded that “it is probably more likely true than not there was consent under the circumstances given” and denied Delage’s motion. The court of appeals, however, remanded on whether Delage’s consent was voluntary, with instructions to consider whether the State had proven by “clear and convincing evidence” his consent was voluntary. The Colorado Supreme Court granted the State’s petition for certiorari and held that the lower standard preponderance of evidence applies in determining whether consent to search is voluntary.

The U.S. and Colorado Constitutions forbid unreasonable searches, which includes warrantless searches. Evidence from such searches must be excluded when challenged in court. One exception, however, is when a person consents to a warrantless search. The two-pronged test for whether a consent to search is legal provides: (1) whether the person actually consented and (2) whether that consent was voluntary.

When a person challenges whether consent was given, the burden is on the state to prove both prongs. In United States v. Matlock, 415 U.S. 164 (1974), the U.S. Supreme Court ruled that for federal purposes, the burden of proof for suppression of evidence issues is proof by a preponderance of the evidence. The Supreme Court has held, though, that the “states are free, pursuant to their own law, to adopt a higher standard.” Lego v. Twomey, 404 U.S. 477 (1972).

The Colorado Supreme Court has never adopted a standard for determining whether consent to search is voluntary. Instead, the court of appeals has incorrectly interpreted the Supreme Court’s decision in People v. Hancock, 525 P.2d 435 (Colo. 1974), as adopting a “clear and convincing evidence” standard, the Supreme Court explained. That decision has not been squarely challenged in the last 40 years, until now.

The Court announced: “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.”

Accordingly, the Court remanded the case for further proceedings consistent with this opinion, and it directed the trial court to determine the voluntariness of Delage’s consent under the newly announced standard. See: People v. Delage, 418 P.3d 1178 (Colo. 2018). 

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