Crim. P. 41.1

History

Source: (f)(2) amended May 7, 2009, effective July 1, 2009; IP(c) amended and effective February 10, 2011; (f)(2) amended and adopted December 14, 2011, effective July 1, 2012. ANNOTATION Law reviews. For comment, ‘‘Beyond the Davis Dictum: Reforming Nontestimonial Iden- tification Evidence Rules and Statutes’’, see 79 U. Colo. L. Rev. 189 (2008). Limited intrusions into privacy on less than probable cause are constitutional when: (1) There must be an articulable and specific basis in fact for suspecting criminal activity at the outset; (2) the intrusion must be limited in scope, purpose, and duration; (3) the intrusion must be justified by substantial law-enforce- ment interests; and (4) there must be an oppor- tunity at some point to subject the intrusion to the neutral and detached scrutiny of a judicial officer before the evidence obtained therefrom may be admitted in a criminal proceeding against the accused. People v. Madson, 638 P.2d 18 (Colo. 1981); People v. Harris, 762 P.2d 651 (Colo. 1988), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 572 (1988). This rule is limited to nontestimonial iden- tification evidence only and does not authorize the acquisition of testimony of communications protected by the privilege against self-incrimi- nation. People v. Harris, 729 P.2d 1000 (Colo. App. 1986), aff’d, 762 P.2d 651 (Colo. 1988), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 572 (1988). And this rule constitutional. This rule does not violate either the fourth amendment to the federal constitution or § 7 of art. II, Colo. Const. People v. Madson, 638 P.2d 18 (Colo. 1981); People v. Harris, 729 P.2d 1000 (Colo. 1986), aff’d, 762 P.2d 651 (Colo. 1988), cert. denied, 485 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 572 (1988); People v. Wilson, 2012 COA 163M, 411 P.3d 11, rev’d on other grounds, 2015 CO 54M, 351 P.3d 1126. Voluntary surrender of nontestimonial evi- dence waives constitutional protections. People v. Mattas, 645 P.2d 254 (Colo. 1982). Propriety of examination determined by totality of circumstances. When the propriety of an identification is at issue, such as a lineup identification, the question of whether there is a substantial likelihood of irreparable misidentifi- cation is determined by examining the totality of the circumstances. People v. Johnson, 653 P.2d 737 (Colo. 1982). Judicial order necessary only when au- thorities take someone into custody. Authori- ties must obtain a judicial order pursuant to this rule only when they take someone presently at liberty into custody for purposes of the nontestimonial identification. People v. Peoples, 200 Colo. 509, 616 P.2d 131 (1980). And rule not applicable to suspect under arrest. The authority of law-enforcement offi- cers to photograph, fingerprint, and measure a suspect while he is under arrest, confined, or awaiting trial has long been recognized, as well as the propriety of using photographs obtained thereby for identification purposes, and this rule is not applicable under those circumstances. People v. Reynolds, 38 Colo. App. 258, 559 P.2d 714 (1976). This rule is not applicable to nontestimonial identifications of persons already in police cus- tody pursuant to a lawful arrest. People v. Peoples, 200 Colo. 509, 616 P.2d 131 (1980). Once probable cause exists to arrest, this rule is inapplicable. People v. Harris, 729 P.2d 1000 (Colo. App. 1986), aff’d, 762 P.2d 651 (Colo. 1988), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 L. Ed. 2d 572 (1988). Nor where defendant voluntarily submits to investigatory procedures. The court need not concern itself with the investigatory proce- dures of this rule where defendants voluntarily submit to fingerprinting, thereby waiving their constitutional protections. People v. Hannaman, 181 Colo. 82, 507 P.2d 466 (1973). Rule applies only to obtaining nontestimonial identification from the defen- dant himself and not to procedures on a third party. People v. Braxton, 807 P.2d 1214 (Colo. App. 1990). Prosecution could not be sanctioned for police conduct in which it did not participate. Trial court may not preclude prosecution from applying for and obtaining order for nontestimonial identification evidence though blood and hair samples obtained by police through a warrantless search were suppressed. People v. Diaz, 55 P.3d 1171 (Colo. 2002). Judge may order fingerprints of individual to be obtained when it is shown by an affidavit that: (1) A known criminal offense has been committed; (2) there is reason to suspect that the individual is connected with the perpetration of a crime; and (3) the individual’s fingerprints are not in the files of the applying agency. Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971). Information obtained from anonymous tip may form basis for affidavit used to obtain an order for nontestimonial identification pursuant to this rule. People v. Davis, 669 P.2d 130 (Colo. 1983). Nontestimonial evidence suppressed where prosecution fails to establish that affidavits sworn to. Where the prosecution fails to estab- lish at trial that the affidavits required by section (c) were sworn to or affirmed before the court which issued the nontestimonial identification order, the nontestimonial evidence is properly suppressed. People v. Hampton, 198 Colo. 566, 603 P.2d 133 (1979). No deprivation of procedural safeguards when county court issued a nontestimonial identification order even though the offenses involved were committed in another jurisdic- tion. Ginn v. County Court, 677 P.2d 1387 (Colo. App. 1984). Admissibility of statements of defendant while in custody for nontestimonial identifi- cation procedures. A statement of a suspect who is detained pursuant to an order to obtain nontestimonial evidence may be admissible un- der circumstances in which the suspect initiates a conversation with police and, despite a lack of coercion or interrogation, voluntarily offers in- formation. People v. Wilson, 841 P.2d 337 (Colo. App. 1992). This rule not for exclusive use of Colorado officials investigating offenses occurring in Colorado. Where the requirements of this rule are met, it is not an abuse of discretion for a county court to issue a nontestimonial identifi- cation order even though the offenses involved were committed in another jurisdiction. Ginn v. County Court, 677 P.2d 1387 (Colo. App. 1984). Statement in affidavit not a judicial admis- sion. Statement that probable cause for arrest did not yet exist in an affidavit in support of an order for nontestimonial identification is not a judicial admission. People v. Page, 907 P.2d 624 (Colo. App. 1995). Court erred in suppressing DNA evidence obtained during identification procedure un- der this rule. Defendant effectively waived right to the presence of counsel appointed in one case through a knowing and voluntary Miranda waiver during an investigation of a crime in another county that may have yielded evidence in the first county’s case. Defendant invoked the right to counsel after a proper Miranda warning. The detectives in the second county followed the Edwards v. Arizona (451 U.S. 477 (1981)) bright line rule and ceased questioning defendant until defendant reinitiated contact with the detectives. An effec- tive waiver of fifth amendment rights, including the right to counsel, will usually effect a waiver of sixth amendment rights, even after appoint- ment of counsel, so long as the defendant is aware of the particular offense being investi- gated. People v. Luna-Solis, 2013 CO 21, 298 P.3d 927. Applied in People v. Morgan, 619 P.2d 64 (Colo. 1980); Richardson v. District Court, 632 P.2d 595 (Colo. 1981); People v. District Court, 664 P.2d 247 (Colo. 1983).