Colorado officers must tell you that you can refuse a car search

Section 16-3-310 was added by House Bill 10-1201 and took effect on April 29, 2010, and its text has not been amended since. It reaches three targets: a person who is not under arrest, that person's effects, and a vehicle. Where a passenger or another person has apparent or actual authority to permit a search of the car or its contents, the advisement goes to whoever is being asked. Subsection (2) softens the delivery: no specific recitation is required and substantial compliance with the substance of the two factors is enough, so an officer who says in ordinary words that you do not have to agree has complied.

Subsection (1)(c) is the part drivers most often misread. Consent must actually be given after the advisement, verbally or in writing, before the search happens. Other evidence of knowing and voluntary consent is acceptable only where the person is unable to give verbal or written consent. Silence, or standing aside while an officer opens a door, is not what the statute describes.

The exclusions in subsection (4) matter as much as the rule. The advisement does not apply to a pat-down conducted under C.R.S. § 16-3-103, to a valid search incident to or subsequent to a lawful arrest, or to any search for which there is a legal basis other than voluntary consent, which the section says includes searches in correctional, detention, custody, juvenile correctional, community corrections, and jail facilities, mental health institutes and facilities operated by or under contract with the Department of Human Services, and searches of probationers and parolees by a community supervision or parole officer where search was a condition of supervision. In short, if the officer already has probable cause or a warrant, § 16-3-310 has nothing to say.

Colorado backs the advisement with a paper trail rather than a suppression penalty. C.R.S. § 24-31-309(3.5), added by Senate Bill 20-217, requires a peace officer to have a legal basis for making any contact with a member of the public, consensual or not, and then to report to the employing agency, for every contact, whether the officer asked for consent to search the person, vehicle, or other property and whether consent was provided, whether a search actually occurred and on what basis, what contraband or evidence was found, and what property was seized and why. The same section requires the time, date, location, duration, and reason for the contact and the perceived demographic information of the person contacted, and defines profiling to include relying solely on race, ethnicity, gender, national origin, language, religion, sexual orientation, gender identity, gender expression, age, or disability in deciding the scope, substance, or duration of a law enforcement activity.

One widely repeated belief about Colorado is wrong, and it is worth stating plainly. Legalization did not create a search rule here. Article XVIII, section 16(3) of the Colorado Constitution says that lawful adult possession, use, display, purchase, or transport of one ounce or less "are not unlawful and shall not be an offense under Colorado law or the law of any locality within Colorado or be a basis for seizure or forfeiture of assets under Colorado law." It addresses seizure and forfeiture; it says nothing about search or inspection, unlike the equivalent clause in Michigan's legalization act. Nor does Colorado have an odor statute: a full-text search of the Colorado Revised Statutes for "odor of marijuana" returns no section at all. What the Vehicle Code does contain is C.R.S. § 42-4-1305.5, which bars a driver or front seat passenger from knowingly using marijuana or possessing an open marijuana container in the passenger area of a vehicle on a public highway, defines an open container as one that is open or has a broken seal, is partially removed, and shows evidence of consumption in the vehicle, and expressly permits home rule and statutory municipalities to adopt ordinances that are no less restrictive.

Section 16-3-310 creates no offense and no fine. " That is a factor rather than a rule of exclusion, so a Colorado court can still find consent voluntary despite a missing advisement, and can still suppress on other grounds. The second enforcement channel is administrative. 5)(h) makes the officer log whether consent was sought and given and on what basis any search proceeded, a pattern of unadvised consent searches surfaces in agency data, and § 24-31-309(4)(a) requires the officer to hand any driver detained but not cited or arrested a business card carrying a badge number and complaint instructions. 5(2) is a class A traffic infraction, and localities may impose stricter rules under subsection (3).