In this
C.A.R. 4.1 interlocutory appeal, the supreme court reverses
the district court's order suppressing evidence from a
protective sweep and search of the vehicle in which the
defendant was a passenger. The court concludes that the
officers acted within the bounds of both the United States
and Colorado Constitutions: the protective sweep was
justified by officer-safety concerns, and the vehicle search
fell within the automobile exception. The case is remanded to
the district court for further proceedings.
2
Interlocutory Appeal from the District Court District Court,
City and County of Denver, Case No. 25CR831 Honorable Karen
L. Brody, Judge
Attorneys for Plaintiff-Appellant: John Walsh, District
Attorney, Second Judicial District Jeff M. Van der Veer,
Senior Deputy District Attorney Denver, Colorado
Attorneys for Defendant-Appellee: Megan A. Ring, Public
Defender Julia Jones, Deputy Public Defender Denver, Colorado
3
JUSTICE BLANCO delivered the Opinion of the Court, in which
CHIEF JUSTICE MARQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER
joined.
4
OPINION
BLANCO
JUSTICE
¶1
Troy J. Baker was charged with one count of possession with
intent to distribute fentanyl and methamphetamine and two
counts of possession of a weapon by a previous offender
("POWPO"). Before trial, Baker moved to suppress
evidence that he alleged the police had obtained in violation
of the Fourth Amendment to the U.S. Constitution and article
II, section 7 of the Colorado Constitution. The district
court agreed and suppressed the evidence in question. Because
we conclude that the search was within the limits of both the
U.S. and Colorado Constitutions, we reverse the district
court's order.[1]
I.
Facts and Procedural History
¶2
At 10:03 p.m. on a Sunday night, two police officers pulled
over a black Toyota ("the Toyota") after noticing
it did not have a front license plate. Before leaving their
patrol car, the officers saw the Toyota's driver,
Rachelle Herrera, and its front seat passenger, Baker, moving
their arms back and forth with their elbows above their
shoulders. This was a high-crime area, and the officers were
already
5
looking for drug and gun activity when they witnessed what
they believed to be these "furtive movements." The
officers called for additional officer coverage.
¶3
At 10:04 p.m., the officers approached the Toyota and
obtained the names of the occupants. One minute later, at
10:05 p.m., one officer stayed with the Toyota while the
other officer returned to the patrol car to run both
occupants' names through a database. Through the search,
the officer discovered that Baker had recently been arrested
for POWPO. By 10:07 p.m., when the officer exited the patrol
car, the additional officer coverage had arrived.
¶4
The officers then removed Baker from the Toyota at 10:08 p.m.
An officer patted him down and asked if he had a gun, to
which Baker responded that he did not. Less than one minute
after Baker was removed, officers searched the passenger
compartment where Baker had been seated, and by 10:10 p.m.,
they found a handgun under the front passenger seat that
Baker had occupied.
¶5
After finding the handgun, police officers searched the rest
of the Toyota. Within three minutes, at 10:13 p.m., the
officers found a black bag in the backseat containing a large
amount of fentanyl pills and methamphetamine. The officers
also found a red purse on the driver's side floorboard
containing more fentanyl pills.
¶6
It is worth noting that the entire sequence of events lasted
approximately ten minutes.
6
¶7
Baker was charged with one count of possession with intent to
distribute fentanyl and methamphetamine and two counts of
POWPO. Baker's sentencing range was increased by a
special offender enhancement for possessing a handgun in
connection with drugs and by habitual sentencing ranges that
applied due to his alleged criminal history.
¶8
Baker filed a pretrial motion to suppress the evidence seized
from the Toyota, arguing that the search violated his Fourth
Amendment rights. He alleged that the officers did not have a
reasonable belief that he was armed and dangerous when they
began the search; therefore, they lacked justification for
their initial search that revealed the handgun. Further,
Baker contested that the subsequent warrantless search of the
Toyota that uncovered the drugs was unconstitutional because
it did not fall under the automobile exception.
¶9
The district court held a suppression hearing and heard
testimony from the officers involved in the stop and search.
The officers testified that they observed what they
characterized as abnormal or furtive movements in the Toyota
as they pulled the vehicle over. The district court found
that during the stop, one officer asked, "[W]hat are
they moving?" and later stated into the radio that the
occupants were making "furtive movements."
People v. Baker, No. 25CR831, at 3 (Dist.
Ct., City &Cnty. of Denver, Nov. 23, 2025) (unpublished
order). The officers testified that it appeared as if Herrera
and Baker were throwing items into the backseat.
7
Further, they testified that based on their training and
experience, these movements could mean the vehicle contained
contraband. The district court found that the officers may
have observed movement, but that their observations
consisted, at most, of unspecified movements, with each
occupant of the vehicle raising an elbow above their
shoulder. Id. at 4. The district court was not
persuaded by the officers' testimony that this movement
was "furtive" or gave rise to sufficient fear to
warrant a protective sweep or the subsequent search of the
Toyota. Id. at 15-17.
¶10
The district court concluded that the officers had a legal
basis for stopping the Toyota based on the missing front
license plate. Id. at 7. However, it further found
that the investigatory detention "lasted longer than was
necessary to effectuate the purpose of the stop" given
that the stop was based on the missing license plate.
Id. at 10. Finally, the district court found that
the detention "was not carefully tailored to its
underlying justification," and ultimately, the
protective search was not justified because of a "lack
of specific and articulable facts supporting a reasonable
belief that Herrera and Baker were potentially
dangerous." Id. at 10, 17.
¶11
The prosecution filed an interlocutory appeal requesting that
we reverse the suppression order.
8
II.
Analysis
¶12
The Fourth Amendment to the U.S. Constitution and article II,
section 7 of the Colorado Constitution protect individuals
against unreasonable searches and seizures. U.S. Const.
amend. IV; Colo. Const. art. II, § 7. The determination
of whether a search was reasonable "depends upon the
reason for and the extent of the intrusion." People
v. Archuleta, 980 P.2d 509, 512 (Colo. 1999).
¶13
We begin by setting forth the applicable standard of review.
We next examine the guidelines set by this court and the
United States Supreme Court for police compliance with these
constitutional protections. Finally, we analyze each step of
the interaction in this case: the initial stop, the
protective sweep, and the search of the Toyota.
A.
Standard of Review
¶14
We review a suppression order as a mixed question of law and
fact. People v. Dacus, 2024 CO 51, ¶ 23, 559
P.3d 198, 203. We accept the trial court's findings of
fact so long as they are supported by competent evidence.
People v. Barnett, 2024 CO 73, ¶ 13, 559 P.3d
250, 253. We review the trial court's application of the
law to the facts under a de novo standard, considering the
totality of the circumstances. People v. Castaneda,
249 P.3d 1119, 1122 (Colo. 2011).
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B.
The Initial Stop
¶15
Although the legitimacy of the initial stop is undisputed, it
remains an important step in the analysis regarding the
constitutionality of the search.
¶16
An officer who pulls over a vehicle in transit is usually
conducting an investigatory stop. People v. H.J.,
931 P.2d 1177, 1180 (Colo. 1997). An investigatory stop is
considered "an intermediate intrusion that may take
place under narrowly defined circumstances." People
v. Brant, 252 P.3d 459, 462 (Colo. 2011). An officer may
conduct an investigatory stop if the officer has "(1) a
reasonable suspicion that criminal activity has occurred . .
.; (2) a reasonable objective for the intrusion; and (3) a
reasonable connection between the scope and character of the
intrusion and its objective." People v.
Pacheco, 182 P.3d 1180, 1183 (Colo. 2008). A traffic
infraction is sufficient justification for an investigatory
stop. Brant, 252 P.3d at 462.
¶17
We have previously held that, as occurred with the Toyota
here, driving without a license plate is a traffic infraction
sufficient to justify a vehicular stop. See People v.
Redinger, 906 P.2d 81, 84 (Colo. 1995) (concluding that
an officer's stop of a vehicle due to its lack of a
license plate was a reasonable investigatory stop).
Therefore, the district court did not err by finding that the
officers had sufficient justification for the initial stop of
the Toyota and its occupants.
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C.
The Protective Sweep
¶18
During a traffic stop, if officers "have an articulable
and objectively reasonable belief that a person in the car
may be armed and dangerous, they may conduct a protective
search of the person and the passenger area of the car."
Brant, 252 P.3d at 462. This is due to the
"particular hazards confronting law enforcement during
roadside encounters with drivers and passengers of
automobiles." People v. Delacruz, 2016 CO 76,
¶ 16, 384 P.3d 349, 353. Additionally, if the passenger
makes a "furtive gesture," Brant, 252 P.3d
at 462, then officers may search the passenger compartment so
long as their search is "reasonably related to the
purpose of ensuring officer safety." Delacruz,
¶ 14, 384 P.3d at 353. Furthermore, the "scope of a
warrantless protective search of a vehicle's passenger
compartment is limited to those areas in which a weapon may
be placed or concealed." Id.
¶19
The officers testified that, after pulling the Toyota over
but before leaving the patrol car, they saw Baker and Herrera
making strange movements with their elbows above their
shoulders. They further stated that they found this behavior
to be extremely abnormal and believed, based on their prior
experience, that it could indicate an attempt to conceal
contraband. In addition, just after these movements, the
officers discovered that Baker had recently been arrested for
POWPO.
11
¶20
The district court found these movements insufficient to
warrant a protective search because the officers were unable
to identify what, if anything, the occupants were moving.
Baker, at 16. While we agree that an officer may not
rely on vague or ambiguous movements to justify a protective
sweep, officers should not have to wait for an unmistakably
dangerous act, such as drawing a firearm, before taking steps
to ensure their safety.
¶21
Colorado law has long recognized that suspicious hand
gestures or movements are an important factor in justifying a
weapons search. See People v. Altman, 938 P.2d 142,
146 (Colo. 1997) (holding that a weapons search was valid
because the driver leaned over and made motions toward the
bottom of his seat after being stopped by the police);
see also People v. Melgosa, 753 P.2d 221, 225 (Colo.
1988) (concluding that a passenger placing an object under
his seat after being pulled over was sufficient to trigger a
weapons search); People v. Cagle, 688 P.2d 718, 723
(Colo. 1984) (holding that a passenger's furtive conduct
in bending down in his seat after the police car's
emergency lights were activated created a reasonable belief
that he had a weapon under his seat). Accordingly,
Baker's suspicious movements—raising his elbows
above his shoulders—are similarly furtive.
¶22
In addition to the furtive movements, the officers discovered
Baker's recent POWPO charge prior to the sweep of the
passenger compartment. And to further
12
increase their suspicion, the officers were in a high-crime
area where one might expect to encounter a weapon. See
People v. Clouse, 859 P.2d 228, 234 (Colo.App. 1992)
(relying in part on the officers' presence in a
high-crime area in concluding that the weapons search was
constitutionally permissible).
¶23
Given the furtive movements, the discovery of the POWPO
charges, and the high-crime area, we conclude that the
officers had a reasonable belief based on articulable facts
that Baker could have been in possession of a weapon. See
People v. McDaniel, 160 P.3d 247, 251 (Colo. 2007)
("[T]he search of the vehicle and the purse was valid
because the officer had a reasonable belief based on
articulable facts from the defendant's behavior that the
defendant could have been trying to gain control of a
weapon.").
¶24
Baker further argues that the sweep could not be done in the
name of officer safety because, by the time the officers
performed their protective sweep and found the gun, they had
already removed Baker from the Toyota and restrained him.
However, "[t]he fact that an officer has physical
control of the suspect does not necessarily negate the threat
to officer safety" because "a suspect can still
break away from police control and retrieve the weapon."
Delacruz, ¶ 15, 384 P.3d at 353; see also
Michigan v. Long, 463 U.S. 1032, 1039 (1983); People
v. Smith, 13 P.3d 300, 308 (Colo. 2000). Accordingly,
the officers' protective sweep was justified by officer
safety concerns, even though Baker was already restrained.
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D.
The Vehicle Search
¶25
For a search to be reasonable and within the limits of the
U.S. and Colorado Constitutions, officers generally must
obtain a warrant before conducting a search. People v.
Edwards, 836 P.2d 468, 471 (Colo. 1992). However, a
warrantless search is permitted if the situation presents
"an exception to the warrant requirement."
Delacruz, ¶ 13, 384 P.3d at 352. One such
exception is the automobile exception, which "authorizes
an officer to perform a search of an automobile if he has
'probable cause to believe that the automobile contains
evidence of a crime.'" People v. Allen,
2019 CO 88, ¶ 16, 450 P.3d 724, 729 (quoting People
v. Zuniga, 2016 CO 52, ¶ 14, 372 P.3d 1052, 1056).
Probable cause requires a court to weigh the totality of the
circumstances in determining "whether a 'fair
probability exists that a search of a particular place will
reveal contraband or evidence of a crime.'"
People v. Cox, 2017 CO 8, ¶ 14, 401 P.3d 509,
512 (quoting Zuniga, ¶ 16, 372 P.3d at 1057).
¶26
In this case, we conclude that the officers who searched the
Toyota acted pursuant to the automobile exception. At the
time the officers began their search, they had already (1)
seen furtive movements, (2) learned that Baker was recently
charged with POWPO, and (3) found a handgun in Baker's
passenger compartment despite his initial denial of
possessing a weapon. These facts provided probable cause for
the officers to believe the Toyota contained evidence
14
of a crime. See People v. Romero, 767 P.2d 1225,
1228-29 (Colo. 1989) (holding that an officer had probable
cause to search a car under the automobile exception because
she knew the occupant was a convicted felon, suspected that
he had a gun in the car, and saw the gun in the car).
Therefore, the officers were lawfully conducting a search
pursuant to the automobile exception when they discovered
additional contraband.
¶27
The district court found that the stop lasted "longer
than was necessary to effectuate the purpose of the stop, and
. . . was not carefully tailored to its underlying
justification." Baker, at 10. We see the
situation differently.
¶28
As for the protective search, although we agree that the
initial purpose of the stop was to investigate the license
plate infraction, once officers observed furtive movements
and learned of Baker's recent POWPO arrest, officer
safety concerns arose and the nature and purpose of the stop
changed. As we've established, these officer safety
concerns justified the protective sweep. The protective sweep
then led to the discovery of the handgun, giving rise to
probable cause that a crime had been committed. Within the
ten-minute duration of the stop, events unfolded in such a
way that altered both the purpose of the stop and the needs
arising from it.
15
III.
Conclusion
¶29
For these reasons, we reverse the district court's order
suppressing all evidence seized from the search, including
the evidence derived from the search. We remand the case to
the district court for further proceedings.
---------
Notes:
[1] The issue in this C.A.R. 4.1
interlocutory appeal is as follows:
1. Did [the] police have an objectively reasonable
belief that the occupants of the car were armed and dangerous
where (among other things) the officers were in a high-crime
area, the officers saw the occupants moving things around the
car in response to the stop, and the officers discovered that
the passenger had recently been arrested for POWPO?