Colo. R. Crim. P. 41.1

As amended through Rule Change 2021(19), effective September 23, 2021
Rule 41.1 - Court Order for Nontestimonial Identification
(a) Authority to Issue Order. A nontestimonial identification order authorized by this Rule may be issued by any judge of the Supreme, District, Superior, County Court, or Court of Appeals.
(b) Time of Application. A request for a nontestimonial identification order may be made prior to the arrest of a suspect, after arrest and prior to trial or, when special circumstances of the case make it appropriate, during trial.
(c) Basis for Order. An order shall issue only on an affidavit or affidavits sworn to or affirmed before the judge, or by the procedures set forth in Crim. P. 41(c)(3), and establishing the following grounds for the order:
(1) That there is probable cause to believe that an offense has been committed;
(2) That there are reasonable grounds, not amounting to probable cause to arrest, to suspect that the person named or described in the affidavit committed the offense; and
(3) That the results of specific nontestimonial identification procedures will be of material aid in determining whether the person named in the affidavit committed the offense.
(d) Issuance. Upon a showing that the grounds specified in section (c) exist, the judge shall issue an order directed to any peace officer to take the person named in the affidavit into custody to obtain nontestimonial identification. The judge shall direct that the designated nontestimonial identification procedures be conducted expeditiously. After such identification procedures have been completed, the person shall be released or charged with an offense.
(e) Contents of Order. An order to take into custody for nontestimonial identification shall contain:
(1) The name or description of the individual who is to give the nontestimonial identification;
(2) The names of any persons making affidavits for issuance of the order;
(3) The criminal offense concerning which the order has been issued and the nontestimonial identification procedures to be conducted specified therein;
(4) A mandate to the officer to whom the order is directed to detain the person for only such time as is necessary to obtain the nontestimonial identification;
(5) The typewritten or printed name of the judge issuing the order and his signature.
(f) Execution and Return.
(1) Nontestimonial identification procedures may be conducted by any peace officer or other person designated by the judge. Blood tests shall be conducted under medical supervision, and the judge may require medical supervision for any other test ordered pursuant to this section when he deems such supervision necessary. No person who appears under an order of appearance issued pursuant to this section (f) shall be detained longer than is reasonably necessary to conduct the specified nontestimonial identification procedures unless he is arrested for an offense.
(2) The order may be executed and returned only within 14 days after its date.
(3) The order shall be executed in the daytime unless the issuing judge shall endorse thereupon that it may be served at any time, because it appears that the suspect may flee the jurisdiction if the order is not served forthwith.
(4) The officer executing the order shall give a copy of the order to the person upon which it is served.
(5) No search of the person who is to give nontestimonial identification may be made, except a protective search for weapons, unless a separate search warrant has been issued.
(6) A return shall be made to the issuing judge showing whether the person named has been:
(I) Detained for such nontestimonial identification;
(II) Released or arrested.
(7) If, at the time of such return, probable cause does not exist to believe that such person has committed the offense named in the affidavit or any other offense, the person named in the affidavit shall be entitled to move that the judge issue an order directing that the products of the nontestimonial identification procedures, and all copies thereof, be destroyed. Such motion shall, except for good cause shown, be granted.
(g) Nontestimonial Identification Order at Request of Defendant. A person arrested for or charged with an offense may request a judge to order a nontestimonial identification procedure. If it appears that the results of specific nontestimonial identification procedures will be of material aid in determining whether the defendant committed the offense, the judge shall order the state to conduct such identification procedure involving the defendant under such terms and conditions as the judge shall prescribe.
(h) Definition of Terms. As used in this Rule, the following terms have the designated meanings:
(1) "Offense" means any felony, class 1 misdemeanor, or other crime which is punishable by imprisonment for more than one year.
(2) "Nontestimonial identification" includes, but is not limited to, identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, specimens of material under fingernails, or other reasonable physical or medical examination, handwriting exemplars, voice samples, photographs, appearing in lineups, and trying on articles of clothing.
(i) Motion to Suppress. A person aggrieved by an order issued under this Rule may file a motion to suppress nontestimonial identification seized pursuant to such order and the said motion shall be granted if there were insufficient grounds for the issuance or the order was improperly issued. The motion to suppress the use of such nontestimonial identification as evidence shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion, but the court, in its discretion, may entertain the motion at the trial.

Colo. R. Crim. P. 41.1

Source: f2 amended May 7, 2009, effective July 1, 2009; IPc amended and effective February 10, 2011; f2 amended and adopted December 14, 2011, effective July 1, 2012.

Annotation Law reviews. For comment, "Beyond the Davis Dictum: Reforming Nontestimonial Identification 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-enforcement interests; and (4) there must be an opportunity 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 identification evidence only and does not authorize the acquisition of testimony of communications protected by the privilege against self-incrimination. 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). Voluntary surrender of nontestimonial evidence 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 misidentification is determined by examining the totality of the circumstances. People v. Johnson, 653 P.2d 737 (Colo. 1982). Judicial order necessary only when authorities take someone into custody. Authorities 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 officers 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 custody 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 procedures 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 defendant 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 establish at trial that the affidavits required by section (c) of this rule 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 jurisdiction. Ginn v. County Court, 677 P.2d 1387 (Colo. App. 1984). Admissibility of statements of defendant while in custody for nontestimonial identification procedures. A statement of a suspect who is detained pursuant to an order to obtain nontestimonial evidence may be admissible under circumstances in which the suspect initiates a conversation with police and, despite a lack of coercion or interrogation, voluntarily offers information. 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 identification 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 admission. 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). 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).