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 ...