People v. Berdahl

Decision Date25 October 2012
Docket NumberNo. 11CA0423.,11CA0423.
PartiesThe PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Brent Richard BERDAHL, Defendant–Appellant.
CourtColorado Court of Appeals

OPINION TEXT STARTS HERE

John W. Suthers, Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver, Colorado, for PlaintiffAppellee.

Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for DefendantAppellant.

Opinion by Judge LICHTENSTEIN.

¶ 1 Defendant, Brent Richard Berdahl, appeals the judgment of conviction entered on jury verdicts finding him guilty of possession of a schedule II controlled substance, a class six felony, and possession of drug paraphernalia, a class two petty offense. Defendant's sole contention on appeal is that the trial court erred in denying his motion to suppress evidence. Specifically, he asserts that the pat-down search of his person was unconstitutional because the police had no reasonable and articulable suspicion that he was involved in criminal activity or that he was armed and dangerous. We reverse the order and remand the case for further findings on the suppression issue.

I. Background
A. Suppression Hearing

¶ 2 The following facts were presented through testimony at the suppression hearing.

¶ 3 On January 10, 2010, at approximately 6:30 a.m., a Weld County deputy sheriff was dispatched on a “check well-being” and “motorist-assist” call. In route to the area, the deputy saw defendant walking along the side of the highway. The sun had not yet risen, and it was possibly “below freezing” outside. The deputy activated his emergency lights to make drivers aware that he and defendant were next to the roadway. He got out of his patrol car, introduced himself to defendant, and observed that defendant was not properly dressed for the cold weather and was “close to hypothermic.” Defendant told the deputy that he had run out of gasoline earlier the previous evening. The deputy asked if defendant wanted to get into the backseat of the patrol car to warm up. Defendant agreed to do so, and the deputy did a brief pat-down search for weapons before defendant got into the car.

¶ 4 While in the backseat, defendant refused the deputy's offer of medical care or assistance, but said his girlfriend was still in his stranded vehicle. The deputy drove to the vehicle and saw a barrel in which defendant and his girlfriend had apparently attempted to start a fire. Defendant's girlfriend was inside the vehicle and was extremely cold. The deputy asked her whether she wanted to get into the backseat of the patrol car, and she agreed. The record does not reflect whether the deputy also patted her down for weapons.

¶ 5 The girlfriend told the deputy that she and defendant had tried to call for assistance, but that no one she called would come out to help them. The deputy then tried to make arrangements to help defendant and his girlfriend, as their cell phone batteries were dead. The deputy called several service stations requesting delivery of some gasoline to help get the pair to the nearest station. But no station agreed to come because neither defendant nor his girlfriend had any money. The deputy testified that he did not investigate any crime, nor did he suspect one had been committed, and that defendant had been extremely cooperative with him.

¶ 6 At that point, a state trooper arrived and activated his lights to make approaching motorists aware that his car was partially in the road. The trooper testified that “it was frigid” that morning. The deputy explained the situation to the trooper, and the trooper offered to transport defendant and his girlfriend to a service station in Kersey. The trooper testified he offered to take them to Kersey because he was concerned for their welfare in light of the cold. Defendant and his girlfriend agreed to go with the trooper and got out of the deputy's vehicle. The trooper asked them both to collect any belongings from their vehicle, which they did. The trooper then testified:

Both the male and female approached my vehicle and I explained to both of them that I was just going to conduct a quick pat-down frisk for any weapons, and at which point [defendant] immediately went over to the trunk of my patrol car, put his hands on the trunk, spread his legs and I commenced with a quick pat-down of his person.

¶ 7 The trooper testified that, although he did not believe any criminal activity had occurred, he performed the pat-down search on defendant, because [i]t's an officer-safety practice when you're putting someone in the back of your patrol car.”

¶ 8 The trooper said he felt a hard, cylindrical object on defendant's left ankle. When he asked defendant to identify it, defendant did not speak but rather pulled up his jeans, pulled out a sock, and displayed a drug pipe within the sock. The trooper said that, in his training and experience, “anything concealed in and around anybody's person or their ankles, it's either a weapon or contraband, one of the two.” The trooper asked if defendant had anything else, “at which point [defendant] immediately reached down, lifted up his right pant, his right ankle, and pulled out a little blue zipper bag,” which he handed to the trooper without speaking.

¶ 9 The trooper did not look inside the bag, but instead opened the patrol car door and defendant got inside. The girlfriend then got into the back of the car. The deputy, whom the trial court found more credible on this point, testified that the trooper did not pat down the girlfriend. The trooper then drove them to the service station in Kersey, where the trooper allowed the girlfriend out of the car and gave her some of his own money so that she could make calls or try to get some gasoline.

¶ 10 The trooper then examined what he had recovered from defendant and determined that it was drug paraphernalia and possible methamphetamine. He secured the evidence, handcuffed defendant, transported him to the jail, and booked him.

B. The Trial Court's Findings

¶ 11 The trial court determined that, considering the totality of the circumstances, the initial encounter between defendant and the officers was consensual. The officers did not suspect defendant of any wrongdoing, used conversational tones of voice, and did not request or demand information in a confrontational manner. The officers' only reason for contacting defendant was to offer assistance. However, the court determined that, after the trooper also arrived on scene and told defendant he was going to conduct a pat-down search for concealed weapons, the encounter ceased to be consensual.

¶ 12 The trial court concluded that defendant was in an emergency situation because of the cold and his broken-down vehicle such that he had “no choice” but to submit to the pat-down search. The court stated that it [could not] ignore the predicament the defendant found himself in, and pretend that the defendant could have reasonably made the choice to remain in an isolated area, without heat or proper clothing, and thereby risk his life and health to the cold.” Citing People v. Fines, 127 P.3d 79 (Colo.2006), the court noted that the encounter in this case, while initially consensual, ceased to be consensual when it became apparent that defendant had no way of getting out of the cold unless he accepted a ride in one of the police cars. It concluded, on this basis, that defendant's subsequent consent to search was not voluntary because he could only make one choice—submit to the pat-down search in order to be transported to a safe location.

¶ 13 However, the court determined that the pat-down search was constitutionally permissible because it was reasonable under the circumstances for officer safety, and, hence, the discovery of the pipe and recovery of the bag containing methamphetamine were also permissible. Thus, the court denied defendant's motion to suppress the evidence obtained during the search.

II. Discussion

¶ 14 Defendant contends that the trial court erred in determining that the search was constitutionally permissible. We agree that the search was not constitutionally justified for purposes of officer safety, but conclude that a remand is required for further findings under the legal standard set forth in People v. Magallanes–Aragon, 948 P.2d 528 (Colo.1997), to determine whether the search was otherwise justified if based on defendant's voluntary consent to the search.

A. Standard of Review

¶ 15 In reviewing a trial court's ruling on a motion to suppress evidence, we defer to the court's findings of historical fact but review its legal conclusions de novo. People v. King, 16 P.3d 807, 812 (Colo.2001); People v. Scheffer, 224 P.3d 279, 283 (Colo.App.2009). We must determine whether the trial court's legal conclusions are supported by sufficient record evidence and whether the court applied the correct legal standard. See King, 16 P.3d at 812;Scheffer, 224 P.3d at 283.

B. Law and Analysis

¶ 16 A warrantless search is presumptively invalid under the Fourth Amendment to the United States Constitution and article II, section 7, of the Colorado Constitution, subject to only a few narrowly delineated exceptions. People v. Dandrea, 736 P.2d 1211, 1216 (Colo.1987). “The constitutional test of a warrantless search ultimately is reduced to the question of whether the search was reasonable under all relevant attendant circumstances.” Id.

1. Reasonableness

¶ 17 Defendant contends the trial court erred in determining that the warrantless pat-down search was constitutionally reasonable under the circumstances. We agree.

¶ 18 Here, the trial court concluded that “it is reasonable under the Fourth Amendment for an officer to require a citizen involved in a consensual encounter to submit to a pat-down search prior to riding in an officer's patrol car.” A warrantless search must meet the ultimate requirement of reasonableness. People v. Casias, 193 Colo. 66, 72, 563 P.2d 926, 930 (1977). The Fourth...

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6 cases
  • People v. Berdahl, Supreme Court Case No. 16SC542
    • United States
    • Colorado Supreme Court
    • 29 Abril 2019
    ...People v. Magallanes-Aragon , 948 P.2d 528 (Colo. 1997), to determine whether Berdahl had voluntarily consented to the pat down. People v. Berdahl , 2012 COA 179, ¶ 14, 310 P.3d 230, 234. The division directed that if the trial court concluded on remand that Berdahl had voluntarily consente......
  • People ex rel. B.D.
    • United States
    • Colorado Court of Appeals
    • 18 Abril 2019
    ...as the circumstances of the search, such as its location and duration, and the environment in which a defendant gives consent." People v. Berdahl , 2012 COA 179, ¶ 34, 310 P.3d 230. ¶ 27 The record shows that B.D. voluntarily consented to the search of his backpack. In the few minutes that ......
  • People v. Gow
    • United States
    • Colorado Court of Appeals
    • 25 Agosto 2016
    ...reasonable, articulable suspicion that the person is armed and dangerous.¶ 3 In so holding, we necessarily disagree with People v. Berdahl , 2012 COA 179, 310 P.3d 230, in which another division of this court held that to justify a warrantless pat-down search of an individual before allowin......
  • People v. Martin
    • United States
    • Colorado Court of Appeals
    • 28 Agosto 2014
    ...an unsuspicious person when other legitimate official reasons exist,” such as rendering aid or conducting a welfare check. People v. Berdahl, 2012 COA 179, ¶ 19, 310 P.3d 230 ; People v. Davis, 39 Colo.App. 63, 65, 565 P.2d 1347, 1349 (1977).3. Application ¶ 24 At the suppression hearing, t......
  • Request a trial to view additional results

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