Two Boulder detectives violated a man’s constitutional rights by interrogating him at his home using a court order that solely authorized the collection of his DNA evidence, the Colorado Supreme Court concluded on Tuesday.

The ruling curtailed the ability of police to use a narrow category of court orders, issued without probable cause, to obtain incriminating testimony from a suspect after they inform him of their authorization to collect other forms of evidence.

When officers show up to execute the order, wrote Justice William W. Hood III in the June 23 opinion, the suspect is not free to leave and is subject to a constitutional “seizure.”

“And unless the officers independently possess probable cause to believe the suspect committed the crime at issue, they are strictly prohibited from ‘intentionally and purposefully elicit(ing) information from’ the suspect in a manner not authorized by the order,” Hood wrote.

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.

Upon securing a “41.1 order,” as it is known, 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. While 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 during oral arguments 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.”

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.

Defense attorney Todd Narum argued 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.

Hood, in the court’s opinion, wrote that the Court of Appeals correctly focused on whether Castro-Velasquez was free to leave. When the detectives showed up hours after telling Castro-Velasquez about the 41.1 order, Castro-Velasquez would not have felt free to leave.

While there would be no constitutional issue if Castro-Velasquez voluntarily made statements to the detectives, the audio of the interrogation showed the detectives confronting him about the crime.

“To be clear, we don’t include these details to suggest that the detectives coerced Castro-Velasquez into making the inculpatory statements,” wrote Hood, “but only as further evidence that a reasonable person in Castro-Velasquez’s position could infer from the tenor of the interaction that this wasn’t a consensual interview; he wasn’t free to terminate the conversation at will; and the execution of the Rule 41.1 order had begun.”

The Supreme Court agreed that Castro-Velasquez’s statements could not be used against him and upheld the Court of Appeals’ directive for a new trial.

The case is People v. Castro-Velasquez.