v. Delage — Searches and Seizures —Consent

At 3 a.m., officers stopped Thomas Delage and another man in an alley known for recent car thefts; both carried backpacks and flashlights near parked cars.
Police searched Delage’s backpack during the encounter and found methamphetamine.
At the suppression hearing, officers testified Delage consented (twice) to the search; Delage denied consenting. The trial court found consent more likely than not and denied the motion to suppress.
The Colorado Court of Appeals affirmed the finding of consent but vacated the conviction because it instructed the trial court to determine whether consent was voluntary and to require proof of voluntariness by clear and convincing evidence.
The People sought certiorari asking whether Colorado requires proof of voluntariness by clear and convincing evidence or by a preponderance of the evidence; the Colorado Supreme Court granted review.
The Supreme Court held that the prosecution must prove voluntariness by a preponderance of the evidence and remanded for the trial court to re-evaluate voluntariness under that standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of proof for voluntariness of consent to search	People: clear up whether clear and convincing is required; ultimately argued preponderance (consistent with federal law)	Delage: appellate court had required clear and convincing; contesting that preponderance suffices	Court held voluntariness must be proven by a preponderance of the evidence
Whether voluntariness is separate from whether consent was given	People: voluntariness is a distinct inquiry from whether consent was given	Delage: voluntariness is required for valid consent; challenged sufficiency of People’s showing	Court agreed voluntariness is a separate question and must be evaluated on the appropriate burden
Whether Colorado should adopt a higher state standard than federal law	People: no compelling reason to adopt a higher standard than federal preponderance rule	Delage/court of appeals: earlier authorities suggested clear and convincing might apply in Colorado	Court declined to adopt a higher standard and aligned with federal preponderance rule
Effect of prior Colorado decisions suggesting a higher standard	People: earlier language created confusion but did not establish a clear-and-convincing rule	Delage: relied on prior court of appeals decision (Trujillo) citing Hancock	Court explained Trujillo misread Hancock, corrected the error, and rejected clear-and-convincing requirement

United States v. Matlock, 415 U.S. 164 (establishing preponderance standard at suppression hearings)
Schneckloth v. Bustamonte, 412 U.S. 218 (consent to search must be voluntary to be valid)
Bourjaily v. United States, 483 U.S. 171 (burden of proof for preliminary questions at suppression hearings)
Lego v. Twomey, 404 U.S. 477 (States may adopt higher standards than federal law)
People v. Valdez, 969 P.2d 208 (Colo. 1998) (preponderance standard applied to voluntariness of confession)
People v. Garner, 806 P.2d 366 (Colo. 1991) (preponderance standard for preliminary admissibility questions)
People v. Montoya, 753 P.2d 729 (Colo. 1988) (same)
People v. Romero, 745 P.2d 1003 (Colo. 1987) (same)
People v. Hancock, 525 P.2d 435 (Colo. 1974) (clarified it did not establish a clear-and-convincing rule)
People v. Trujillo, 576 P.2d 179 (Colo. App. 1977) (misconstrued Hancock and propagated clear-and-convincing language)
People v. Magallanes-Aragon, 948 P.2d 528 (Colo. 1997) (did not decide appropriate burden because outcome same under either standard)
People v. Chavez-Barragan, 379 P.3d 330 (Colo. 2016) (similarly avoided deciding the proper burden because People met higher burden)