People v. Berdahl, Supreme Court Case No. 16SC542

• Decision Date: 29 April 2019
• Docket Number: Supreme Court Case No. 16SC542
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Brent Richard BERDAHL, Respondent.
• Court: Colorado Supreme Court

440 P.3d 437

The PEOPLE of the State of Colorado, Petitioner

v.Brent Richard BERDAHL, Respondent.

Supreme Court Case No. 16SC542

Supreme Court of Colorado.

April 29, 2019

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

En Banc

JUSTICE GABRIEL delivered the Opinion of the Court.

¶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 you’re putting someone in the back of your patrol car."

¶10 In a lengthy and comprehensive written order, the trial court denied Berdahl’s motion to suppress. Although the court found that the pat down was not consensual because a reasonable person in Berdahl’s circumstances could only have chosen to submit to the pat down in order to be transported to a safe location, the court concluded that the search was nonetheless constitutionally permissible. The court first found that due to Berdahl’s physical state, the sergeant "had no real choice but to transport the defendant in his police car." The court then determined that the sergeant "had the constitutional prerogative to pat down the defendant for weapons to [e]nsure officer safety." Therefore, the court concluded that "the pat down search of the defendant was reasonable under the totality of the circumstances."

¶11 The case proceeded to trial, and the jury ultimately found Berdahl guilty as charged.

¶12 Berdahl appealed, arguing that the trial court had erred in finding that the search was constitutionally permissible. In a unanimous, published decision, a division of the court of appeals concluded that "the search was not constitutionally justified for purposes of officer safety" but remanded for further findings under the legal standard set forth in 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 consented, then the judgment would stand affirmed, and if not, then Berdahl was entitled to a new trial. Id. at ¶ 37, 310 P.3d at 238.

¶13 On remand, the trial court applied the Magallanes-Aragon standard and concluded that Berdahl had voluntarily consented to the pat-down search. In support of this determination, the court found no objective evidence of improper conduct or undue influence on the part of the officers. To the contrary, the court found that the officers had "acted properly within the scope of their duty to protect Mr. Berdahl and his companion from harm." The court explained, "While some of the subjective factors indicate that Mr. Berdahl may have felt that there was no real choice but to consent, the officers did nothing to create the predicament, did nothing to take advantage of the situation, and did nothing to coerce Mr. Berdahl into submitting to the search." Thus, the objective factors outweighed the subjective factors at issue.

¶14 Berdahl again appealed, this time arguing that the trial court did not recognize that a police officer’s assertion of lawful authority constitutes objective evidence of police coercion and that the mere submission to that assertion of authority does not constitute voluntary consent. In a partially divided, unpublished opinion, a different court of appeals division agreed with Berdahl. People v. Berdahl , No. 14CA72, slip op. at 12, 2016 WL 3124679 (Colo. App. June 2, 2016). In so ruling, the majority explained that "the [trial] court applied the wrong standard under Magallanes-Aragon in considering the interrelationship between the objective evidence of the police conduct, on one hand, and Berdahl’s subjective characteristics and the circumstances of the search, on the other." Id. The majority stated that the court should have "appl[ied] an objective test to the totality of the circumstances of the search." Id. Applying this standard, the majority concluded that because the sergeant’s statement that he was going to conduct a pat down to check for weapons constituted a claim of lawful authority, and because Berdahl’s "consent" constituted mere acquiescence to that claim, the sergeant’s actions "could have appeared coercive to a reasonable person in Berdahl’s position." Id. at 13. The majority was not persuaded otherwise by the fact that when the sergeant stated that he was going to conduct a pat down, Berdahl immediately put his hands on the trunk of the patrol car and spread his legs. Id. at 23. In the majority’s view, Berdahl’s reaction did not evince voluntary consent but rather, as noted above, constituted mere acquiescence to the sergeant’s claim of lawful authority. Id. The division thus reversed and remanded for a new trial excluding the evidence found as a result of the pat down. Id. at 24.

¶15 Judge Richman specially concurred. He expressed concern that if the sergeant’s statement that he "was just going to conduct a quick pat-down frisk for any weapons" constituted an assertion of lawful authority, then almost any statement by a law enforcement officer could be perceived to be such an assertion. Id. at 26 (Richman, J., specially concurring). He nonetheless agreed with the majority’s ultimate conclusion because "the sergeant’s statement did not contain any request for permission to search." Id. at 27.

¶16 The People petitioned this court for certiorari review, and we granted their petition.

II. Analysis

¶17 We begin by setting forth the applicable standard of review of a trial court’s suppression...