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

  Varnado, 582 N.W.2d at 891.

¶ 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).

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