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ADVANCE SHEET HEADNOTE

May 29, 2018

2018 CO 45

No. 15SC630, People v. Delage — Searches and Seizures —Consent —Voluntariness 

In this case, the supreme court considers whether the voluntariness of consent to 

a search in Colorado must be proven by “clear and convincing evidence” or by “a 

preponderance of the evidence.” The court holds that the People must prove by a 

preponderance of the evidence that a search was consented to voluntarily in order to 

overcome a motion to suppress evidence obtained in that search. 

 
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2018 CO 45

Supreme Court Case No. 15SC630

Certiorari to the Colorado Court of Appeals

Court of Appeals Case No. 12CA1936

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Thomas B. Delage.

Judgment Reversed 

en banc

May 29, 2018

Attorneys for Petitioner:

Beth McCann, District Attorney, Second Judicial District

Mitchell R. Morrissey, District Attorney, Second Judicial District

Robert J. Whitley, Chief Appellate Deputy District Attorney

Victoria M. Cisneros, Deputy District Attorney

Denver, Colorado

Attorneys for Respondent: 

Douglas K. Wilson, Public Defender

Lynn Noesner, Deputy Public Defender

Denver, Colorado

JUSTICE HART delivered the Opinion of the Court.

JUSTICE GABRIEL does not participate.
2

¶1 This case presents us the opportunity to clarify whether the voluntariness of 

consent to a search in Colorado must be proven by “clear and convincing evidence” or 

by “a preponderance of the evidence.”1 Under federal law, the answer is clear, as the 

United States Supreme Court explained more than forty years ago that voluntariness 

need only be shown by a preponderance of the evidence. We hold today that in

Colorado courts the same standard applies and that the People must prove by a 

preponderance of the evidence that a search was consented to voluntarily in order to 

overcome a motion to suppress evidence obtained in that search. 

I. 

¶2 Thomas B. Delage was stopped by police when they spotted him and a 

companion at 3 a.m. in an alleyway that had been the scene of recent thefts from cars. 

Both men were carrying backpacks and flashlights and they were standing next to 

several parked cars. During the ensuing interaction between Delage and the officers, 

the police searched Delage’s backpack and found methamphetamines. At a hearing 

about the admissibility of the drugs, Delage and the officers involved gave differing 

accounts of the details and duration of the stop. Among other differences, the officers

 

1 We granted certiorari on a single issue: 

1. Whether this court should continue to hold the People to the unduly 

high standard of proving by “clear and convincing evidence” that a 

defendant’s consent to search was voluntary, when the Colorado 

Supreme Court case credited for requiring this standard does not stand 

for that proposition, and the United States Supreme Court espouses 

that “preponderance of the evidence” should be the controlling 

standard for suppression hearings. 
3

alleged that Delage twice gave consent to the search of his backpack while Delage 

denied having done so at all. 

¶3 Applying a preponderance-of-the-evidence standard, the trial court found that 

“it is probably more likely true than not there was consent under the circumstances 

given.” On that basis, the trial court denied Delage’s motion to suppress the 

methamphetamines. The court of appeals agreed with the trial court’s assessment that 

Delage had given consent, but the panel noted that the court had not considered 

whether Delage’s consent was voluntary. Because consent must be voluntary to be 

valid, the court of appeals vacated Delage’s conviction and remanded, instructing the 

trial court to consider whether the People had proven by “clear and convincing 

evidence” that Delage’s consent was voluntary. The People petitioned for certiorari, 

asking us to clarify whether “clear and convincing evidence” of voluntariness was 

required or whether a “preponderance of the evidence” is instead the proper standard 

for the voluntariness inquiry. We granted the petition.

II. 

¶4 As a threshold matter, we agree with the division below that the issue of 

voluntariness must be considered separate and apart from whether consent to a search 

was given. We disagree, however, that the applicable standard for proving that consent 

was voluntarily given is “clear and convincing evidence.” Instead, in the face of a 

motion to suppress evidence obtained through a consented-to search, the prosecution 

must prove by a preponderance of the evidence that consent to the search was given 

voluntarily.
4

¶5 The proper burden of proof is a question of law that we review de novo. 

McCallum Family L.L.C. v. Winger, 221 P.3d 69, 72 (Colo. App. 2009). 

¶6 Both the federal and state constitutions prohibit unreasonable searches. See U.S. 

Const. amend. IV; Colo. Const. art. II, § 7. When the government has conducted an 

unreasonable search, the evidence obtained through that search may be suppressed and 

therefore not admitted at trial. See People v. Morley, 4 P.3d 1078, 1080 (Colo. 2000) 

(defining “the exclusionary rule” as a “judicially created remedy . . . [that] operates to 

suppress evidence obtained in violation of the Fourth Amendment [of the U.S.

constitution] and article II, section 7 of the Colorado Constitution”) (citing People 

v. Burola, 848 P.2d 958, 960–61 (Colo. 1993)).

¶7 If an individual voluntarily consents to a search, that search is reasonable, and 

suppression of any evidence obtained is not warranted. See Schneckloth v. Bustamonte, 

412 U.S. 218, 243 (1973); People v. Licea, 918 P.2d 1109, 1112 (Colo. 1996). The United 

States Supreme Court held several decades ago that the burden of proof for Fourth 

Amendment suppression issues—including, but not limited to, the voluntariness of 

consent to a search—is proof by a preponderance of the evidence. See United States 

v. Matlock, 415 U.S. 164, 177 n.14 (1974) (“[T]he controlling burden of proof at 

suppression hearings should impose no greater burden than proof by a preponderance 

of the evidence.”). See also Bourjaily v. United States, 483 U.S. 171, 175–76 (1987).

¶8 At the same time, the Supreme Court has been clear that “States are free, 

pursuant to their own law, to adopt a higher standard.” Lego v. Twomey, 404 U.S. 477, 

489 (1972). Thus, we could conclude that Colorado law provides stronger protections 
5

against unreasonable searches, and, therefore, that the People should be required to 

prove more to avoid the suppression of evidence. We decline, however, to do so.

¶9 Requiring the People to prove voluntariness by a preponderance of the evidence 

in this context makes sense for a number of reasons. First, we have required trial courts 

to apply the preponderance standard in evaluating the very similar question of the 

voluntariness of a confession. People v. Valdez, 969 P.2d 208, 210 (Colo. 1998). We 

have also adopted that “standard as the controlling norm for determining preliminary 

questions relating to admissibility.” People v. Garner, 806 P.2d 366, 370 (Colo. 1991); 

People v. Montoya, 753 P.2d 729, 733 (Colo. 1988); People v. Romero, 745 P.2d 1003, 

1016 (Colo. 1987). We see no justification for applying a different standard in this 

subset of admissibility determinations. Second, we see no compelling justification for 

adopting a different standard than that applied under federal law to guarantee the 

protections of the Fourth Amendment.

¶10 It is understandable that the court of appeals directed the trial court to apply the 

clear and convincing evidence standard in this case. This court has not analyzed the 

merits of imposing a higher burden of proof in our own consent-to-search cases than is 

required in federal court before today, but language in several of our earlier opinions

and those from the court of appeals did suggest that a stricter standard applied. 

Examining these earlier cases, it appears that the genesis of the confusion was a 1977 

court of appeals’ decision that incorrectly cited our opinion in People v. Hancock, 

525 P.2d 435, 437 (Colo. 1974), for the proposition that proof of voluntariness of consent 

must be shown by clear and convincing evidence. See People v. Trujillo, 576 P.2d 179, 
6

181 (Colo. App. 1977). Contrary to the court of appeals’ suggestion in Trujillo, we did 

not adopt a clear-and-convincing-evidence standard (or any standard) in Hancock. 

Neither have we done so since. Unfortunately, however, Trujillo’s assertion that we did 

was repeated, and was never squarely challenged over the years.2 Until now. 

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. 

III. 

¶11 Because we conclude that the voluntariness of a consent to search must be

proven by a preponderance of the evidence, we remand the case for further proceedings 

consistent with this opinion. On remand, we direct the trial court to re-evaluate the 

voluntariness of Delage’s consent to search, applying this standard. 

JUSTICE GABRIEL does not participate.

 

2 In People v. Magallanes-Aragon, because the prosecution conceded that the trial 

court’s voluntariness determination would likely have been the same under either 

burden of proof, we did not address the People’s contention that the preponderance-ofthe-evidence standard should apply to consensual searches. 948 P.2d 528, 530, 530 n.5 

(Colo. 1997). Later, in People v. Chavez-Barragan, we again declined to address 

whether the People’s showing of voluntariness by a preponderance of the evidence 

would suffice to defeat a defendant’s suppression motion because we concluded that 

the People had met the more onerous burden. 2016 CO 66, ¶ 36, 379 P.3d 330, 338, 338 

n.5.