COLORADO COURT OF APPEALS 2016COA119
Court of Appeals No. 14CA0921 Jefferson County District Court No. 13CR565 Honorable Christopher C. Zenisek, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tommy Allen Gow,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE BERGER Román and Nieto*, JJ., concur
Announced August 25, 2016
Cynthia H. Coffman, Attorney General, Rebecca A. Adams, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Anne B. Stockham, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2015. ¶1 This case presents the important question of whether a police
officer, consistent with the Fourth Amendment, may require a
person who requests assistance to be subjected to a pat-down
search for weapons before the person is allowed to enter the officer’s
vehicle.
¶2 We hold that there is no affront to the Fourth Amendment
when a police officer requires a person who has voluntarily sought
assistance, but whom the officer has no duty to assist, to undergo a
pat-down search as a condition of entering a police vehicle, even
when the officer does not have a reasonable, articulable suspicion
that the person is armed and dangerous.
¶3 In so holding, we necessarily disagree with People v. Berdahl,
2012 COA 179, in which another division of this court held that to
justify a warrantless pat-down search of an individual before
allowing entry into a police vehicle, an officer must have a
reasonable, articulable basis to conclude that the person is armed
and dangerous. While we give considerable deference to decisions
of other divisions of this court, we are not bound by those
decisions. See e.g., People v. Frye, 2014 COA 141, ¶ 12. Because
1 we believe that Berdahl reaches a result not required by the Fourth
Amendment or any binding authority, we decline to follow it.
¶4 Given our holding, we reject the argument of defendant,
Tommy Allen Gow, challenging the admission of evidence discovered
during a pat-down search, and we affirm the judgment of
conviction.
I. Facts and Procedural History
¶5 A jury convicted Gow of possession of methamphetamine and
possession of a schedule I controlled substance. His sole
contention on appeal is that the trial court erred by denying his
motion to suppress the evidence obtained during the search.
¶6 The arresting officer testified at the suppression hearing that
at approximately 2:15 a.m., he observed Gow walking in a
residential neighborhood with a box in his hands. The officer stated
that, upon exiting his vehicle, he “asked [Gow] what he was up to”
and that Gow told him that he had “c[o]me from his friend[’s] . . .
house and just bought an iPad from him for $600.” The officer
testified that Gow offered to produce and did produce his
identification card, and that after discovering no outstanding
warrants, he told Gow he was free to leave.
2 ¶7 The officer further testified that he continued to watch Gow as
Gow walked away, but he eventually decided to drive away from the
area. He stated that, as he was passing Gow, Gow started waving
his hands and motioning for the officer to stop and lower his
window. The officer testified that Gow approached his vehicle and
asked for a ride to another friend’s house that was four blocks
away. The officer agreed to give Gow a ride but told Gow that “[he]
had to pat him down first before [he] put him in the back of [the]
vehicle to insure [sic] that he didn’t have any weapons or anything
illegal on him.” The officer testified that this was not an official
“procedure” but that he wanted to ensure his safety when giving
Gow a “courtesy ride.”
¶8 The officer testified that Gow responded, “[o]kay. I don’t have
any weapons,” and the officer did not find anything on Gow’s
person. The officer stated that he then asked Gow if he could look
inside the box with the iPad in it to check for weapons and Gow
said “sure.” The officer testified that, when Gow opened the box
and took the iPad out, the box dropped to the ground and two small
plastic baggies fell out. He stated that Gow picked up the baggies
and handed them to him and that, when asked, Gow told him they
3 contained “speed.” The officer testified that, in his experience, he
suspected the baggies contained methamphetamine.
¶9 The officer then arrested Gow. The substances inside the
baggies later tested positive for unlawful drugs.
¶ 10 Gow’s version of the encounter was substantially different. He
testified that on the night in question, he was walking away from
his friend’s apartment when he heard the officer “holler” at him to
come over. He stated that he asked the officer why he was
“harassing” him and that the officer said there had been reports of
people breaking into cars in the area. Gow testified that the officer
asked about the box in his hand and that he told him it contained
an iPad. He stated that he handed the box to the officer and that
the officer then returned the box to him.
¶ 11 Gow testified that he then walked away, but that, about four
to five minutes later, the officer pulled up next to him and asked to
see the iPad box. He stated that he gave the box to the officer and
that two baggies fell out when it was opened. Gow testified that he
did not wave the officer down to ask for a ride, that the officer did
not ask for permission to search the box, and that he did not tell
the officer the baggies contained “speed.”
4 ¶ 12 In its oral ruling, the trial court found the officer’s testimony
credible and held that the second encounter was consensual
because it was initiated by Gow waving down the officer and
requesting a ride. The court denied the motion to suppress,
concluding that the officer’s pat-down search of Gow before giving
him a courtesy ride did not violate the Fourth Amendment’s
prohibition against unreasonable searches and seizures because it
was “logical . . . that one must make sure they are going to be safe
in giving a ride to somebody.”1
II. The Fourth Amendment — General Principles
¶ 13 The Fourth Amendment to the United States Constitution and
article II, section 7 of the Colorado Constitution protect individuals
against unreasonable searches and seizures. People v. Brown, 217
P.3d 1252, 1255-56 (Colo. 2009).2 “A warrantless search is
presumptively invalid under the [F]ourth [A]mendment . . . , subject
1 Gow does not challenge the extent of the search, arguing only that no search was constitutionally permitted. We limit our analysis accordingly. Specifically, we do not address whether it was constitutionally permissible for the officer to separately seize and search the contents of the iPad box as part of the search of Gow’s person. 2 Because Gow does not contend that the Colorado Constitution
provides different or greater protection than the Fourth Amendment, we do not further address its protections.
5 only to a few narrow and specifically delineated exceptions.” People
v. Dandrea, 736 P.2d 1211, 1216 (Colo. 1987). “The constitutional
test of a warrantless search ultimately is reduced to the question of
whether the search was reasonable under all relevant attendant
circumstances.” Id.
¶ 14 Our review of a trial court’s ruling on a motion to suppress is a
mixed issue of law and fact. People v. Bostic, 148 P.3d 250, 254
(Colo. App. 2006). We defer to a trial court’s findings of fact if they
are supported by competent evidence in the record. People v.
Gothard, 185 P.3d 180, 183 (Colo. 2008). However, a trial court’s
legal conclusions are subject to de novo review. Id.
III. Analysis
¶ 15 Gow does not contend that the trial court’s findings of fact are
not supported by the evidence at the suppression hearing, and we
are bound by a trial court’s findings of historical fact that find
support in the record. People v. Matheny, 46 P.3d 453, 458 (Colo.
2002). Instead, Gow argues that the pat-down search, which
entailed the search of the iPad box, was unconstitutional because,
under Berdahl, an officer may not, in the course of providing a
courtesy ride, search the individual to be transported without a
6 reasonable, articulable suspicion that the individual is armed and
dangerous, and the officer here had no such suspicion.
¶ 16 Although the trial court did not cite Berdahl, the court’s
conclusion — that the officer could pat down Gow to ensure the
officer’s safety while giving Gow a ride — is directly at odds with
Berdahl’s holding that Colorado does not recognize an “officer safety
exception” to the requirement that an officer have a warrant or a
reasonable, articulable suspicion that an individual is armed and
dangerous to lawfully conduct a pat-down search for weapons
before the person enters a police vehicle.
¶ 17 While Berdahl is factually distinguishable from this case in
important respects, the trial court’s ruling here is impermissible
under Berdahl’s blanket holding that officer safety cannot justify a
pat-down search in this type of situation. Thus, unless we can
resolve the case on other grounds than those relied on by the trial
court, we must decide whether we agree with Berdahl. See People
v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006) (appellate court may
affirm trial court’s suppression order on any ground supported by
the record).
7 ¶ 18 Although the prosecution argued in response to Gow’s
suppression motion that Gow had consented to the search, the trial
court did not decide consent or make any factual findings on the
issue because the court found that the search was justified under
an officer safety rationale. Because a determination whether an
individual voluntarily consented to a search must take into account
the totality of the circumstances, People v. Munoz-Gutierrez, 2015
CO 9, ¶ 19, the record does not contain the factual findings
necessary for us to decide whether Gow consented to the search.
¶ 19 Moreover, although we could remand the case to the trial
court to make findings on consent, if the trial court found that Gow
did not consent to the search, we would still then have to decide
whether the search was nevertheless reasonable for officer safety
purposes. Because the resolution of this appeal thus requires us to
decide if the pat-down search of Gow was constitutionally justified
under the circumstances as an officer safety measure, we must
address Berdahl, under which the search would not be
permissible.3
3We do not address formal arrests because if an officer has probable cause to arrest an individual, the officer, without any
8 ¶ 20 In Berdahl, a state trooper conducted a pat-down search of the
defendant before giving him and his girlfriend a courtesy ride to a
service station because their car had run out of gas and they were
stranded on the side of the road in “frigid” conditions. Id. at ¶ 6.
The trooper explained that, “although he did not believe any
criminal activity had occurred, he performed the pat-down search
on [the] defendant, because ‘[i]t’s an officer-safety practice when
you’re putting someone in the back of your patrol car.’” Id. at ¶ 7.
¶ 21 During the search, the trooper discovered unlawful drugs and
drug paraphernalia, and the defendant was arrested. Id. at ¶¶ 8-
10. The trial court denied the defendant’s motion to suppress this
evidence, concluding that the pat-down search was constitutionally
permissible because “it was reasonable under the circumstances for
officer safety.” Id. at ¶ 13.
¶ 22 On appeal, a division of this court reversed the trial court’s
ruling. The division held that “[l]aw enforcement officers may
justifiably contact an unsuspicious person when other legitimate
official reasons exist,” “[b]ut during that contact, a protective search
additional cause or reason, may search the individual and areas under his control incident to the arrest. See e.g., People v. Clouse, 859 P.2d 228, 234 (Colo. App. 1992).
9 for a weapon ‘is justified only when the circumstances of an
otherwise valid stop provide the officer with a reasonable basis to
suspect that the person with whom he is dealing may be armed and
dangerous.’” Id. at ¶ 19 (quoting People v. Ratcliff, 778 P.2d 1371,
1376-77 (Colo. 1989)). The division concluded that Colorado has
not recognized an “officer safety exception” to this requirement. Id.
at ¶¶ 26, 29.
¶ 23 The Berdahl division relied on several out-of-state cases to
support its holding. See id. at ¶ 25. The division cited United
States v. Glenn, 152 F.3d 1047, 1049 (8th Cir. 1998), in which the
majority of a three-judge panel held that an officer’s decision to
place a traffic offender in the back of a patrol car after stopping him
for a traffic violation did not create a reasonable, articulable
suspicion to justify a pat-down search. The majority held, however,
that the weapon that was found during the pat-down search need
not be suppressed because it inevitably would have been discovered
incident to the offender’s arrest. Id. at 1049-50. The third judge
concurred in the result only, expressing the view that anytime the
circumstances surrounding a traffic stop allow the placing of a
detainee inside a police car with a lone officer, the Terry doctrine
10 authorizes an outside-of-the-clothing search for weapons. Id. at
1050 (Beam, J., concurring in the result).
¶ 24 The Berdahl division also relied on State v. Brockel, 746 N.W.
2d 423 (N.D. 2008). There, the North Dakota Supreme Court held
that although North Dakota law authorized an officer to order a
motorist who is stopped for a traffic violation to sit in the patrol car
while the officer issues a citation, that fact does not authorize a pat-
down search without a reasonable and articulable suspicion that
the motorist is armed and dangerous. Id. at 426-27.
¶ 25 The other cases on which the Berdahl division relied to
support its holding, however, do not, in our view, stand for the
proposition that an officer may not conduct a pat-down search of an
individual before placing him in a police vehicle unless the officer
reasonably believes that the individual is armed and dangerous.
¶ 26 For instance, in Wilson v. State, 745 N.E.2d 789 (Ind. 2001),
the Indiana Supreme Court acknowledged that,
when an officer places a person into a patrol car that will be occupied by the officer or other persons, there is a significantly heightened risk of substantial danger to those in the car in the event the detainee is armed. We believe that this increased risk is sufficient to satisfy the requirements of Ybarra [v. Illinois, 444 U.S.
11 85, 94 (1979) (a reasonable belief or suspicion directed at the person to be frisked)], and that it is generally reasonable for a prudent officer to pat-down persons placed in his patrol car, even absent a belief of dangerousness particularized to the specific detainee.
Id. at 792 (footnote omitted).
¶ 27 Similarly, in State v. Varnado, 582 N.W.2d 886, 891 (Minn.
1998), the Minnesota Supreme Court held that “we agree that
officer safety is a paramount interest and that when an officer has a
valid reasonable basis for placing a lawfully stopped citizen in a
squad car, a frisk will often be appropriate without additional
individual articulable suspicion.”
¶ 28 These cases thus do not hold that an interest in officer safety
arising solely from the decision to place an individual in a patrol car
can never justify a pat-down search. Rather, they held, as
described by the court in Wilson, that the “Fourth Amendment
[does not] permit[] the police routinely to place traffic stop detainees
in a police vehicle if this necessarily subjects the detainee to a
preliminary pat-down frisk.” 745 N.E.2d at 793 (emphasis added).
Consequently, without “a particularized justification making it
reasonably necessary” to place an individual in a patrol car, an
12 officer violates the Fourth Amendment by placing the person into
the vehicle and thereby subjecting him to a pat-down search. Id.;
see also Varnado, 582 N.W.2d at 891-92 (“We will not allow officers
to contravene the reasonableness requirement of the Fourth
Amendment simply by requesting that a person sit in the squad
car.”).
¶ 29 But, in holding that a decision to place an individual in a
police vehicle does not by itself justify a pat-down search, the
Wilson and Varnado courts recognized that if the “various
particularized circumstances,” Wilson, 745 N.E.2d at 793, causing
an officer to require or allow an individual to enter a police vehicle
reasonably justify such a decision, a pat-down search before the
individual enters the vehicle is not unreasonable under the Fourth
Amendment. See id.; Varnado, 582 N.W.2d at 891 (“We are not to
be understood as holding that police have no right, for their own
protection, to search a person before placing him in a squad car if
there is a valid reason for requiring him to enter the vehicle and it is
not merely an excuse for an otherwise improper search.” (quoting
State v. Curtis, 190 N.W.2d 631, 636 (1971)). Because the courts
in Wilson and Varnado concluded that there were no circumstances
13 in those cases providing a reasonable basis for requiring the
defendants to enter the police vehicles, and the officers did not have
a reasonable, articulable suspicion that the defendants were armed
and dangerous, the courts held that the pat-down searches of the
defendants were unlawful. See Wilson, 745 NE.2d at 792-93;
Varnado, 582 N.W.2d at 889-92.
¶ 30 Other cases that the Berdahl division cited (but rejected the
holdings of) likewise focused on the reason an officer was requiring
or allowing an individual to enter a police vehicle. These cases held
permissible the pat-down searches of individuals who were ordered
or allowed into police vehicles, whether or not the officer had a
reasonable basis to believe that the individual was armed and
dangerous, if there was a valid reason for placing the individual in
the vehicle and it was not merely an excuse for a search. See
Varnado, 582 N.W.2d at 891.
¶ 31 The Berdahl division cited, but rejected, the holding of the
California Court of Appeal in People v. Tobin, 269 Cal. Rptr. 81, 82-
85 (Cal. Ct. App. 1990), which concluded that the pat-down
searches of three men before placing them in a patrol car were
reasonable when the officer conducting the searches had a duty to
14 transport the men off a busy freeway that the officer reasonably
believed “would be extremely unsafe” for the men to walk on. See
Berdahl, ¶¶ 24-29.
¶ 32 Similarly rejected by Berdahl, id., were holdings of the Illinois
intermediate appellate court, the Michigan intermediate appellate
court, and the Rhode Island Supreme Court, all of which held that a
pat-down search was constitutional, without a specific showing that
a person was armed and dangerous, when the police had a valid
reason for transporting the person in a police car. People v. Queen,
859 N.E.2d 1077, 1079, 1084-85 (Ill. App. Ct. 2006) (holding that
pat-down search of an intoxicated man was reasonable when the
officer acted for safety purposes according to departmental policy
and reasonably believed that the “defendant was in need of a
courtesy ride in the squad car because he could not proceed safely
in his condition without assistance”); People v. Hannaford, 421
N.W.2d 608, 609-10 (Mich. Ct. App. 1998) (holding that a pat-down
search was reasonable when the officer transported three men at
their request late at night, the men had been drinking, and the
officer could not contain their movement in the patrol car); State v.
Lombardi, 727 A.2d 670, 673-74, 676 (R.I. 1999) (holding that the
15 pat-down search of a passenger in a validly stopped vehicle was
reasonable when he had to be transported home in a police car
because he was intoxicated, it was late at night, and the area was
not safe for walking).
¶ 33 The Berdahl division was legitimately concerned that a blanket
rule that the police may always perform a pat-down search of
persons they order or allow into a police vehicle could erode
established Fourth Amendment protections. Such a blanket rule
would permit evasion of the established Fourth Amendment law
that warrantless pat-down searches for weapons are permissible
during an investigative stop only when the officer has a reasonable,
articulable basis for believing that his safety would be compromised
without such a search. See Terry v. Ohio, 392 U.S. 1, 29-31 (1968).
¶ 34 But we think that this concern can be accommodated without
subjecting police officers to substantial risk of serious injury or
death when transporting a person in a police vehicle by focusing,
like the courts in the cases discussed above, on the circumstances
of the encounter between the police officer and the individual. A
protective pat-down search is permissible only when those
circumstances reasonably justify the officer’s decision to require or
16 allow the individual to enter the vehicle. Because, for instance, a
routine traffic stop does not, without more, vest authority in the
officer to demand that the motorist enter the police vehicle, see,
e.g., People v. Kinsella, 527 N.Y.S.2d 899, 901 (N.Y. App. Div.
1988), a rule allowing a pat-down search whenever an officer has
reasonable justification for placing a person into a police vehicle
may not be used as a subterfuge to avoid the established limitations
on when a detainee may be subjected to a mandatory pat-down
search for weapons. See Curtis, 190 N.W.2d at 636.
¶ 35 For these reasons, we conclude that the cases the Berdahl
division rejected are, in fact, the better reasoned cases. In our view,
they reach the appropriate balance between the critical interest of
officer safety and an individual’s right to be free from unreasonable
searches and seizures. “The Fourth Amendment was surely not
intended to stand for the proposition that police officers must either
abandon civilians [in need of assistance] or transport them at the
risk of personal safety, rather than transport them at reduced risk
of personal safety by first subjecting them to a frisk for weapons.”
Hannaford, 421 N.W.2d at 610. “[An] officer [is] not required to
gamble his life by placing [an individual] in [a] patrol car with him
17 without the precaution of a pat down for weapons.” Lombardi, 727
A.2d at 675 (quoting Williams v. State, 403 So. 2d 453, 456 (Fla.
Dist. Ct. App. 1981)).
¶ 36 Thus, we hold that when an officer has a valid, reasonable
basis for placing an individual into a police vehicle that will be
occupied by the officer or other persons, the significantly
heightened risk of danger to those in the vehicle in the event the
individual is armed justifies a pat-down search of the individual for
weapons, irrespective of whether the officer has a reasonable,
articulable belief that the individual is armed and dangerous. See
¶ 37 Applying this holding to the facts of this case, we conclude
that the officer had a reasonable, valid basis to permit Gow to enter
his police vehicle, and therefore also to conduct a pat-down search
of Gow.
¶ 38 The “touchstone” of the Fourth Amendment is “always the
reasonableness in all the circumstances of the particular
governmental invasion of a citizen’s personal security.”
Pennsylvania v. Mimms, 434 U.S. 106, 108 (1977) (citation
omitted). The factual findings made by the trial court, which Gow
18 does not challenge on appeal, establish that Gow voluntarily sought
the officer’s assistance, which specifically consisted of transport in
a police vehicle. At no time during the encounter (at least until the
drugs were found) was Gow “seized” under the Fourth Amendment
— the officer did not restrain Gow’s freedom to walk away by means
of physical force or a show of authority. See Terry, 392 U.S. at 16,
19 n.16.
¶ 39 The officer thus had a reasonable, valid basis for allowing Gow
to enter the police vehicle — Gow’s voluntary decision to seek
assistance of that nature and Gow’s continued participation in the
encounter, which indicated his continued desire for such
assistance. Under these circumstances, the pat-down search of
Gow was reasonable.
¶ 40 Given our conclusion, it is unnecessary for us to address
whether the function of “community caretaking,” recognized by the
United States Supreme Court in Colorado v. Bertine, 479 U.S. 367,
381 (1987), would provide an independent basis to validate the pat-
down search in this case.4
4For an extensive discussion of the reach of the community caretaking function of police, see Michael R. Dimino, Sr., Police
19 IV. Conclusion
¶ 41 The judgment of conviction is affirmed.
JUDGE ROMÁN and JUDGE NIETO concur.
Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment Reasonableness, 66 Wash. & Lee L. Rev. 1485 (Fall 2009).