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Can Illegally Obtained Evidence Be Used In Colorado Probation Violation Hearings Under 16-11-206?
By H. Michael Steinberg Colorado Probation Violation Criminal Defense Lawyer
Can Illegally Obtained Evidence Be Used In Colorado Probation Violation Hearings Under 16-11-206?Probation violation hearings in Colorado are very different from the kind of jury trial a Defendant receives when a case is taken all the way to verdict. For many – this is difficult to understand.
The statute that governs probation violations in Colorado – 16-11-206 – limits the protections that are in place at a trial on the original charges in a Colorado case. Instead of the “full panoply of rights” that the public is used to seeing at a trial – probation violation proceedings are limited to the following “minimal due process” rights:
(1) written notice of the alleged violations;
(2) disclosure of the evidence against the probationer;
(3) opportunity to be heard in person and to present witnesses and documentary evidence;
(4) the right to confront and cross-examine adverse witnesses; and
(5) a written or oral statement on the record by the fact finder as to the evidence relied on and the reasons for revocation.
What Is Really Shocking Is Even Illegally Obtained Evidence Is Admissible In A Probation Violation Hearing
The so called “exclusionary rule” is used to suppress illegally obtained evidence in a criminal case. This rule – which punishes the police for violating a citizens rights in the collection of evidence – does NOT generally apply to probation violation proceedings.
Colorado follows the majority of federal and state courts deny application of the rule which allows the government to make the affirmative use of evidence which has been obtained by unlawful police conduct.
Evidence obtained in violation of a Colorado probationer’s 5th and 6th amendment rights is permitted.
The Reasons Why Full Constitutional Protections Don’t Apply To Colorado Probation Violation Hearings
While several reasons may be used to explain denying a probationer the remedy of the exclusionary rule to exclude illegally obtained evidence at a probation violation hearing, the primary reason is a perception of the nature of probation and probation revocation proceedings. This reason is best described as tracking the nature and purpose of a sentence to probation.
What Is The Nature of Probation?
Probation is an agreement between the Defendant – now convicted – and the State. The Defendant is released into the community and placed under supervision – and that supervision has restrictions intended to both rehabilitate the offender and protect that community.
When there is an alleged violation of probation, such as a technical violation of one of those restrictions, the Court revisits the grant of probation and re-sentences the offender in light of that violation or valuations. The Court can impose any sentence it wants including a prison sentence for any length of time that could have been given after a plea or finding of guilty of the original crime.
Now – The Purpose Of The Protections Of The Fourth Amendment Weigh In
The Fourth Amendment to the Constitution protects the person on the street from unreasonable searches and seizures.
The Exclusionary Rule, which prevents illegally obtained evidence from being used at trial is in the U.S. Const. amend. IV.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Searches and seizures performed without a warrant are per se unconstitutional unless:
(1) the fact situation makes the fourth amendment inapplicable; or
(2) the fact situation fits into one of the “few specifically established and well-delineated exceptions” as defined by the United States Supreme Court.
The exclusionary rule applies to four types of constitutional violations:
1. searches and seizures contrary to the Fourth Amendment;
2. confessions, admissions, or statements taken in violation of the Fifth and Sixth amendments;
3. identification testimony resulting from suggestive police practices at a line-up or show-up; and
4. evidence obtained by methods that would “shock the conscience” of the court..
There are two primary reasons for the existence of the Exclusionary Rule:
1. The deterrence of unlawful police conduct, and
2. The preservation of judicial integrity.
The concept is that if law enforcement knows that illegally obtained evidence cannot be used to convict, then presumably the officer will have no reason to act illegally in gathering evidence.
Having said all of that – and applying these concepts to probation violation hearings – as noted above – the majority of federal and state courts – including Colorado – refuse in almost every case – to apply the exclusionary rule at a probation revocation hearing.
The “deterrence rationale” of the exclusionary rule has been found to simply not apply to a probation revocation hearing reasoning that the use of the exclusionary rule during the probation hearing would make the proceedings too “adversarial” and formal, to would work to the detriment of the rehabilitative objective of probation.
One Exception To The Rule – If The Police Act In A Way That Shocks The Conscience
The Colorado Law that governs probation violation hearings – Section 16-11-206 – provides that:
“[a]ny evidence having probative value should be received regardless of its admissibility under the exclusionary rules of evidence if the defendant is accorded a fair opportunity to rebut hearsay evidence.”
However the Colorado Court’s of Appeal have also held that:
“…evidence acquired by gross official misconduct shocking to the conscience of the court to serve as the basis for the state imposed sanction of revocation. Such misconduct must be deterred even at the expense of otherwise reliable evidence.”
So… while there is no clear “extension” of the exclusionary rule to probation revocation proceedings…
“If it is demonstrated that law enforcement officers knowingly engaged in a pretext arrest and exploratory search of the defendant because of his probationary status, or otherwise pursued in bad faith a course of harassment or other form of gross impropriety, suppression of the fruits of that governmental activity would be both appropriate as a deterrent and necessary in the interest of judicial integrity.”
But the misconduct must be “egregious” misconduct as described before the exclusionary rule is made applicable to Colorado probation revocation proceedings.
Can Illegally Obtained Evidence Be Used In Colorado Probation Violation Hearings Under 16-11-206?
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If, after reading this article, you have questions about your case and would like to consider retaining our law firm, we invite you to contact us at the Steinberg Colorado Criminal Defense Law Firm – 303-627-7777.
Never stop fighting – never stop believing in yourself and your right to due process of law. You will not be alone in court, H. Michael at your side every step of the way – advocating for justice and the best possible result in your case.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”
You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer – and we encourage you to “vet” our firm. Over the last 40 plus years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice. H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way – Can Illegally Obtained Evidence Be Used In Colorado Probation Violation Hearings Under 16-11-206?
Other Articles of Interest:
- Colorado Probation Violation Hearings – Not The Same Rights As A Trial
- The How & Why Of Colorado Probation Violations Are Prosecuted
- Colorado Probation Violation Law – New Criminal Charges As A Violation of Probation
- Colorado’s Probation Violation Hearing Law – Analysis
- A Colorado Probation Violation Guide To Intelligently Defending Probation Violations
