Before giving a person a courtesy ride in their vehicle, a police officer will often require that person to undergo a pat down search for weapons. The officer often explains this is done to ensure the officer’s safety, but what the Colorado Supreme Court decided last week was whether two such searches were constitutional.
On April 29, the Supreme Court ruled unanimously in a pair of cases that pre-ride pat downs were constitutional because the defendants had voluntarily consented to the searches based on their behavior. In each case, Gow v. People and People v. Berdahl, the defendant was a male whom an officer patted down before giving them a courtesy ride in their police vehicle. And in each case, the officer found evidence of illegal drugs on the defendant, which the defendants tried unsuccessfully to have suppressed by the trial court.
A pat down or “frisk” constitutes a search under the Fourth Amendment. The Supreme Court used a similar analysis in Gow and Berdahl, which hinged on whether the defendant gave voluntary consent to the search.
In Gow, a Jefferson County deputy sheriff was driving through a neighborhood late at night when he stopped to question a lone man who was carrying a box. The man, Tommy Gow, told the officer it he’d just bought an iPad from a friend. Gow walked away, but later asked the officer to give him a ride to a friend’s house. The officer told Gow he’d have to pat him down, to which Gow replied, “Okay. I don’t have weapons,” according to the record. The officer then found methamphetamine on Gow during the frisk and arrested him for possession.
At trial, Gow and the officer had conflicting narratives of their interaction, with the defendant claiming the officer was harassing him.
The court sided with the officer’s version of events and denied Gow’s motion to suppress the evidence from the search. Gow was later convicted as charged.
Gow appealed, but a division of the appellate court would unanimously affirm. “[T]here 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,” according to the Court of Appeals opinion, “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.”
In its review, the Supreme Court deferred to the trial court’s order finding the officer’s account more believable. Based on that, the Supreme Court found that Gow voluntarily consented to the search based on his responses to the officer.
“As the trial court found, with record support, the interactions between Gow and the deputy were consensual and reflected ‘a cooperative process’ with ‘a common goal essentially of getting Mr. Gow from one place to another safely,’” according to the opinion by Justice Richard Gabriel.
While affirming the appellate court decision, the high court noted that its analysis on the constitutionality of the pat down “rests on narrower grounds from those on which the division relied.”
Berdahl’s case, however, was more factually complex than Gow’s and spawned multiple appeals.
In Berdahl, the defendant was a man who accepted a courtesy ride from a Weld County sheriff’s deputy when the officer discovered him walking along a road on a freezing night. Brent Berdahl told the officer that his truck ran out of gas, and the deputy, seeing Berdahl wasn’t dressed for the cold, offered the man a ride back to his truck, where Berdahl’s significant other was waiting.
Berdahl accepted, and the deputy patted him down for weapons before letting him in the squad car.
Later, a Colorado State Patrol sergeant arrived at the stranded truck and offered to give Berdahl and his companion a ride to a gas station. He told them he was going to frisk them for weapons, and Berdahl immediately complied, placing his hands on the truck and spreading his legs. But in this second pat down, the sergeant discovered a meth pipe and a baggy of what he presumed was meth.
The sergeant arrested Berdahl for drug possession, and the defendant was found guilty at trial.
In Berdahl, the trial court found that the pat down wasn’t consensual because Berdahl wasn’t dressed for the elements, so a reasonable person in his position would only consent to it in order to get to safety.
But on the other hand, the sergeant “had no real choice but to transport the defendant in his police car” considering Berdahl’s situation. The court also determined that the sergeant had the constitutional prerogative to ensure his own safety, so the search was reasonable.
The Berdahl case made two trips to the Colorado Court of Appeals. In the first appeal, a division of the appellate court unanimously decided that a pat down search wasn’t constitutionally justified. It remanded the case back down to the trial court to determine whether Berdahl had indeed consented to the search — and the court concluded he did.
When Berdahl appealed again with a new argument. The officer asserted lawful authority in asking to pat him down, Berdahl argued, and simply submitting to that authority doesn’t constitute voluntary consent. Another division sided with Berdahl, remanding for a new trial that suppressed the evidence the sergeant found on the pat down.
The Supreme Court found Berdahl’s search reasonable because the officers didn’t present the searches in way that was coercive. “Although to be sure, Berdahl found himself in difficult circumstances, the officers did not create those circumstances,” according to the high court’s opinion, which Gabriel also penned.
Reversing the Court of Appeals, the Supreme Court found that Berdahl voluntarily consented to the pat down. But more so than in Gow, the court emphasized that the officers’ conduct in conducting the search was reasonable.
“[T]he officers did precisely what good and conscientious law enforcement officers would do to help citizens in need, while at the same time taking appropriate precautions to ensure their own safety.”
— Doug Chartier