Some members of the Colorado Supreme Court appeared hesitant on Tuesday to endorse the ability of police to interrogate a suspect after they have obtained a court order authorizing only the collection of physical evidence.

Under Colorado’s criminal rules, law enforcement may obtain an order for “nontestimonial identification,” allowing them to pursue a person’s fingerprints, blood specimen, handwriting sample, picture, or other evidence that does not stem from an interrogation.

Notably, police only need to demonstrate “reasonable grounds,” not probable cause, that their target committed an offense.

During oral arguments, the justices grappled with the actions of two Boulder detectives who came to a suspect’s house to collect his DNA pursuant to a “41.1 order,” as it is known. But rather than take him to the police station right away, they interrogated him for almost 45 minutes before turning to the 41.1 order.

The state’s Court of Appeals initially found the detectives had improperly detained and questioned the defendant, rejecting the prosecution’s argument that he was not in custody until it was time for the DNA swab.

“If he had voluntarily showed up at the police station, under your view of this,” Chief Justice Monica M. Márquez told the government, “they could put him in an interrogation room, conduct a full-blown back-and-forth before actually conducting the buccal swab. Because it’s not until they conduct the buccal swab that the 41.1 order’s being executed. I guess I’m a little troubled by that.”

Justice William W. Hood III added that he was concerned about police interrogating a suspect in an arrest-like atmosphere, based upon a court order that does not authorize such tactics.

“I’m just saying in the grand scheme of things, I could see the potential for creating some perverse incentives,” he said.

Upon securing a 41.1 order to collect the DNA of Angel Adrian Castro-Velasquez, who was suspected of an attempted sexual assault, Detectives Kevin Marples and Kara Wills arrived at Castro-Velasquez’s house one morning. Marples originally told Castro-Velasquez about the 41.1 order over the phone the day before, but Marples realized it would not work for Castro-Velasquez to come to the police station after-hours as they had planned.

Instead of moving to collect the evidence authorized by the order, the detectives interrogated Castro-Velasquez at length. He eventually confessed, after which they executed the order. Marples later testified he lacked probable cause to arrest Castro-Velasquez for the attempted attack at the time he and Wills showed up at the house.

On appeal, Castro-Velasquez argued the detectives manipulated the order to detain and interrogate him without probable cause. Such conduct allegedly violated the Fourth Amendment’s prohibition on unreasonable seizures.

A three-judge Court of Appeals panel concluded Castro-Velasquez was seized during the encounter, meaning he would not have felt able to leave or disregard the detectives’ questioning. Although police were not prohibited from investigating Castro-Velasquez further, wrote then-Judge Anthony J. Navarro, they could not interrogate him under the narrow authorization of the 41.1 order.

“Overall, the record reveals that the detectives intentionally elicited Castro’s statements about the alleged offenses while he was detained on less than probable cause,” Navarro wrote. “We cannot condone it.”

To the Supreme Court, the government argued the appellate panel was wrong to ask whether Castro-Velasquez was “free to leave” during the encounter at his home. Instead, the government maintained that Castro-Velasquez was not in custody until the interrogation concluded, and the detectives took him for a DNA swab.

Justice Richard L. Gabriel countered that if police had shown up to a suspect’s home, asked to talk, and he invited them in, that would be a permissible consensual encounter or, at most, a brief investigatory stop.

“But the 41.1 order seems to make some sort of difference here,” he said. “He’s not free to leave. At that point, we have an order. And I think the world is different than just the consensual stop or an investigatory stop.”

Further, Gabriel continued, once a suspect is being interrogated in custody, they have the protection of their Miranda rights. Therefore, the guardrails for executing 41.1 orders would be redundant.

“Forget the rule 41.1 for a moment,” said Justice Carlos A. Samour Jr. “Say they had just shown up at his house one morning, knocked on his door, and said, ‘Hey, we are investigating a case. Can we talk to you?’ And he invites them in and they have the same conversation they had here. You would agree that it’s either consensual or, at most, an investigatory stop, right?”

Defense attorney Todd Narum agreed. He added that police “execute” a 41.1 order once the suspect is aware of it and there is a police presence in connection with it. Both of those conditions were met at the time of Castro-Velasquez’s interrogation.

“So, as soon as there’s a 41.1 signed, and as soon as the defendant is made aware of that,” said Justice Susan Blanco, “there is no circumstance where law enforcement can have a consensual interaction with the defendant?”

“Correct, because they’ve already done something that they’re not allowed to do in the typical situation,” said Narum.

The case is People v. Castro-Velasquez.