Can a driver who is not the owner of a vehicle consent to a search of the vehicle?
The answer is YES, the driver absolutely can consent to the search of a vehicle, even if they are not the owner.
When a vehicle is validly stopped by an officer, the person driving is presumed to have immediate “possession and control” of the vehicle, and can consent to the police searching the vehicle. However, if the actual owner of the vehicle is also present in the vehicle and does not give his/her consent to search, the police cannot search the vehicle even if the driver does give consent. The final decision on voluntary consent to searches stays with the actual owner of the vehicle, and (if the owner is not present) secondarily rests with the driver. If you are merely a passenger, you cannot consent to (nor can you prevent) a search of a vehicle, but you do retain the ability to prevent a search of your person and your belongings without probable cause.
What must an officer do to legally search my vehicle?
C.R.S. § 16-3-310 requires that prior to obtaining a consensual search of a vehicle, an officer must articulate two things to the driver/owner of the vehicle to obtain their consent:
(I) The person is being asked to voluntarily consent to a search; and
(II) The person has the right to refuse the request to search.
When determining whether a driver has properly consented to a search of their vehicle, courts examine the voluntary nature of the consent to search. If the consent to search the vehicle was not justified, any evidence acquired cannot be used against the driver.
You have the Right to Remain Silent – Use it!
If you are stopped by an officer, there is no legal obligation to answer ANY questions. The 5th Amendment to the Constitution enshrines the right of every citizen to not be a witness against themselves when interacting with law enforcement officers, whether state or federal.
Refusing to answer ANY questions from an officer cannot be used against you, but ANY answer you voluntarily give can/will be used against you at a later time.
Are there times when a person can be required to not remain silent?
YES, but in very limited situations. The government cannot use torture or overly forceful means to elicit information from a citizen, but there are times when a person can be legally required to answer questions. The 5th Amendment “right to silence” applies to information that might implicate the citizen in a criminal prosecution. You cannot be forced to testify against yourself in criminal matter.
In Colorado, giving identification to an officer when the officer reasonably suspects a crime has been committed is not deemed to be a 5th Amendment violation. C.R.S. § 16-3-103 allows an officer to ask for identification (or name and address) and ask the citizen to explain their actions if the officer has reasonable suspicion that the citizen is, or has, or is about to commit a crime – but the citizen is not required to answer any question beyond identification. There are no repercussions for refusing to answer an officer’s questions about the suspected legal infraction.
Only a judge can require you to testify and hold you in contempt for not giving testimony, but you can only be held in contempt when your testimony will not subject you to criminal liability, i.e. when you have some form of immunity from criminal prosecution.
If I’m stopped while driving a vehicle, what must I do?
In Colorado, if you are stopped by an officer while operating a motor vehicle, you are required to provide identification. C.R.S. § 42-2-115 requires you to provide the physical identification if stopped for a traffic infraction. You are not required to answer ANY other questions – you don’t have say where you are coming from, where you are going, why you are going there, or any other questions.
Are there exceptions to the right to remain silent?
When a crime has possibly been committed, there are two scenarios in which a suspected perpetrator MUST give requested information to a law enforcement officer.
#1 – a law enforcement officer has the legal right to obtain your name when an officer has a “reasonable suspicion” that you are committing (or have already committed, or are about to commit) a crime. C.R.S. § 16-3-103. The reasonable suspicion must be something that the officer can concretely articulate or describe (cannot be just a “hunch” or a “feeling”), and must not be based on something that you did after the stop. In this scenario, an officer can momentarily detain you (which is not an arrest) to investigate the criminal activity.
#2 – if you are stopped while driving a vehicle, an officer can ask that you provide physical identification. C.R.S. § 42-2-115 and you must provide it if available (other laws require providing proof of insurance and registration). But, you are not required to answer any other questions by the officer.
An officer can ask any number of questions, but you are not required to answer them. Law enforcement officers can (and often do) use deception or trickery to get you to voluntarily give statements to the officer. Be aware they will do this – don’t be fooled! ANYTHING you voluntarily say can and will be used against you at any subsequent legal proceeding. And any untruthful or inconsistent statement you make (even if a genuine mistake) can be used against you at a trial. Silence is your best friend.
Does refusing to consent to a search end the encounter between the driver and the officer?
NO. The officer may continue to ask questions even after the driver has refused to consent to a search. An officer’s ability to ask a stopped driver questions ends when the reason for the encounter has ended, i.e. when the ticket has been written and given to the driver, when the officer no longer has a suspicion of criminal activity, or when the driver is arrested.
There are limitations to what is considered a “reasonable” amount of time to hold a stopped driver, but unless the officer can show that new information after the stop indicates the driver is involved in illegal activity, the police officer cannot hold a driver for longer than is reasonably necessary to complete the reason for the stop, e.g. issuing a traffic ticket.