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People v. Gow

Court of Appeals of Colorado, Fifth Division

August 25, 2016

The People of the State of Colorado, Plaintiff-Appellee,
Tommy Allen Gow, Defendant-Appellant.

         Jefferson County District Court No. 13CR565 Honorable Christopher C. Zenisek, Judge

          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


          BERGER JUDGE

         ¶ 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 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.

         ¶ 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 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."

         ¶ 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 ...

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