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People v. Berdahl

Supreme Court of Colorado, En Banc

April 29, 2019

The People of the State of Colorado, Petitioner
v.
Brent Richard Berdahl. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA72

          Attorneys for Petitioner: Philip J. Weiser, Attorney General L. Andrew Cooper, Deputy Attorney General Denver, Colorado

          Attorneys for Respondent: Megan A. Ring, Public Defender Britta Kruse, Senior Deputy Public Defender Denver, Colorado

          OPINION

          GABRIEL JUSTICE.

         ¶1 This case principally asks us to decide whether Brent Berdahl's federal and state constitutional rights were violated when a law enforcement officer required him to submit to a pat-down search before providing a consensual ride in the officer's police car.[1] We now conclude that when Berdahl accepted the officer's offer of a courtesy ride in the officer's car and then submitted to a brief pat down for weapons before getting into the car, he, by his conduct, voluntarily consented to the officer's limited pat-down search, and therefore, the search was constitutional.

         ¶2 Accordingly, we reverse the judgment of the division below.

         I. Facts and Procedural History

         ¶3 Early one January morning, a Weld County sheriff's deputy was dispatched to an intersection in Weld County to check on the well-being of two people whose truck had broken down. About one-half to three-quarters of a mile from the reported location of the truck, he saw a man walking alongside the roadway. The deputy activated his emergency lights and pulled over, recognizing that the man was not dressed for the freezing temperatures and that he looked "close to hypothermic." The man, Berdahl, explained that his truck had run out of gas earlier that evening and that his significant other, J.P., was still in the truck, which was up the road. The deputy asked for identification, which Berdahl provided, and offered to let Berdahl get in the back of the deputy's patrol car to warm up. Before allowing Berdahl to do so, however, the deputy conducted a brief pat-down search for weapons.

         ¶4 The deputy then drove to where Berdahl's truck had run out of gas and asked J.P. if she wanted to get in the backseat of his car to warm up. She said that she did. The record does not reveal whether the deputy conducted a pat down of J.P. before she entered the car.

         ¶5 Upon learning that the batteries in Berdahl and J.P.'s mobile phones had died, the deputy attempted to make arrangements with several service stations in the area to see if they could deliver fuel. They all refused, however, because neither Berdahl nor J.P. had any form of payment with them.

         ¶6 Meanwhile, a Colorado State Patrol sergeant arrived at the scene to offer his assistance. After learning that Berdahl and J.P. had been stranded for much of the evening and that no one was available to come get or offer any assistance to them, he offered to transport them to the nearest gas station. They accepted the offer and collected their personal items from the truck. The sergeant then explained that before allowing them to get into his car, he "was just going to conduct a quick pat-down frisk for any weapons," at which point Berdahl immediately went over to the trunk of the patrol car, put his hands on the trunk, and spread his legs to allow the sergeant to conduct the pat down. During this pat down, the sergeant felt a hard cylindrical object on Berdahl's left ankle and asked him to identify it. Berdahl reached down and pulled out a sock that had a methamphetamine pipe inside. The sergeant asked him if he had any other contraband, and Berdahl reached down to his other ankle, lifted his pant leg, and pulled out a little blue zipper bag, which he handed to the sergeant.

         ¶7 The sergeant then transported Berdahl and J.P. to the gas station. (The evidence was disputed as to whether the sergeant conducted a pat down of J.P. before she got into the car; the sergeant testified that he did, but the deputy testified to the contrary, and the trial court ultimately credited the deputy's testimony.) When they arrived at the gas station, the sergeant gave J.P. some of his own money so that she could get help, and she went into the station. The sergeant then looked inside the blue bag, where he found a small plastic baggy containing a while crystalline substance, which he believed to be methamphetamine. He then arrested Berdahl.

         ¶8 The prosecution subsequently charged Berdahl with possession of a controlled substance and possession of drug paraphernalia. Before trial, he moved to suppress the evidence of the pipe and drugs, arguing that the sergeant conducted the pat down at issue without a warrant and that none of the exceptions to the Fourth Amendment's warrant requirement applied.

         ¶9 The court then conducted a hearing on Berdahl's motion. At that hearing, the sergeant testified that he had patted down Berdahl because "[i]t's an officer-safety practice when ...


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