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Gow v. People

Supreme Court of Colorado, En Banc

April 29, 2019

Tommy Allen Gow, Petitioner
v.
The People of the State of Colorado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA921

          Attorneys for Petitioner: Megan A. Ring, Public Defender Julia Chamberlin, Deputy Public Defender Denver, Colorado

          Attorneys for Respondent: Phillip J. Weiser, Attorney General Rebecca A. Adams, Senior Assistant Attorney General Denver, Colorado

          OPINION

          GABRIEL JUSTICE.

         ¶1 In this case, we are asked to decide whether Tommy Allen Gow's federal and state constitutional rights were violated when he was subjected to a pat down and search of a box that he was carrying before accepting a courtesy ride with a sheriff's deputy.[1] We now conclude that the pat down and search of the box were constitutionally permissible because on the facts as found by the trial court, Gow initiated the encounter with the deputy by asking for a courtesy ride and then voluntarily and expressly consented to the pat down and search of the box as preconditions of getting into the deputy's car. Accordingly, we affirm the judgment of the division below, although our analysis rests on narrower grounds than those on which the division relied.

         I. Facts and Procedural History

         ¶2 At approximately 2:15 a.m., a Jefferson County Deputy Sheriff was driving through a residential neighborhood when he noticed a man walking down the street carrying a box. According to the deputy, he pulled up next to the man, got out of his patrol car, and asked "what he was up to." The man, Gow, responded that he had just come from a friend's house where he had purchased an iPad from the friend. He then asked the deputy if the deputy wanted to see his identification. The deputy said that he did, and after checking to make sure that Gow had no outstanding warrants, the deputy told Gow that he was free to leave. At some point during this interaction, Gow showed the deputy the iPad. The device was in its box, and the officer was only able to see the screen.

         ¶3 As Gow walked away, the deputy stayed in his patrol car and watched him. When Gow turned around a corner and left the deputy's sight, the deputy pulled up to the intersection where Gow had turned and continued watching him. Gow was looking around as he was walking, and the deputy continued to watch him walk away. The deputy then decided to drive down the street and leave the area. According to the deputy, as he was about to pass Gow, Gow began waving his hands at the deputy and signaled for the deputy to roll down his window. The deputy stopped and rolled down the passenger side window. Gow then walked up and asked the deputy to give him a ride to his friend's house, which was four blocks away. The deputy replied, "Sure," but said that he had to pat Gow down before allowing him to get into the car, to ensure that Gow did not have any weapons or anything illegal on him. According to the deputy, Gow responded, "Okay. I don't have weapons."

         ¶4 At that point, the deputy got out of his patrol car, patted down Gow, and asked to look inside the box again, to ensure that no weapons were hidden underneath the iPad in the box. Gow said, "Sure," and as he pulled out the iPad, the box fell to the ground and two small plastic baggies fell out. The deputy directed Gow to hand him the baggies, and Gow complied. The deputy then asked what was in them, and Gow responded that it was speed. The deputy arrested Gow and transported him to the Jefferson County jail. There, in the process of booking Gow, the deputy looked through Gow's wallet, and he found another little plastic baggie containing a white crystal substance that the deputy believed to be additional narcotics. According to the deputy, when he asked Gow about this baggy, Gow responded, "Oh, I didn't even know I had that in there."

         ¶5 The prosecution subsequently charged Gow with possession of more than two grams of methamphetamine and possession of four grams or less of a schedule I controlled substance. Before trial, Gow moved to suppress, among other things, the evidence derived from his encounters with the deputy, including the drugs at issue, arguing that those encounters and the search of the iPad box violated his federal and state constitutional rights.

         ¶6 The trial court conducted a hearing on Gow's motion, and at this hearing, Gow testified, contrary to the deputy's testimony, that the deputy had approached him as he was walking down the street and "hollered" at him to come over. According to Gow, he approached the deputy and asked why the deputy was harassing him. The deputy responded that the department had received reports of people breaking into cars in the area. The deputy then asked what was in the box that Gow had in his hands, and Gow responded that he had an iPad. Gow opened the box and told the deputy that he had just bought it. He handed the box to the deputy, who handed it back and asked if Gow had anything that would poke, stick, or otherwise hurt the deputy. Gow responded, "No, sir," at which point the deputy said, "I am going to pat you down," which he proceeded to do. The deputy then asked Gow for identification. Gow provided his identification, the deputy ran a background check on it, and the deputy told Gow that he was free to leave. Gow walked away, but the deputy pulled up again and said that he was going to search Gow. According to Gow, he did not signal the deputy to stop or request a ride. Gow testified that the deputy took the box, and the two baggies fell on the ground.

         ¶7 In an oral ruling, the trial court denied Gow's motion to suppress. The court recognized that the deputy's and Gow's accounts of the encounters at issue were in conflict. The court stated, however, that it was persuaded by the facts as relayed by the deputy. Based on those facts, and particularly on the facts that the deputy had used "no lights, no siren, no gun, [and] no force" and that the encounters reflected a "cooperative process" with "a common goal essentially of getting Mr. Gow from one place to another safely," the court found that the encounters between Gow and the deputy were consensual. In addition, with respect to the pat down, the court explained that it "certainly is logical . . . that one must make sure they are going to be safe in giving a ride to somebody . . . ." For these reasons, the court found that the pat-down search and search of the iPad box did not violate Gow's constitutional rights.

         ¶8 The case proceeded to trial, and the jury ultimately convicted Gow as charged. Gow appealed, arguing that the trial court had erred when it refused to suppress the evidence seized by the deputy when he subjected Gow to a pat-down search and search of the iPad box. In ...


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