July 23, 2019

Archives for August 30, 2016

Colorado Court of Appeals: Officer Justified in Conducting Pat-Down Search Before Allowing Person to Enter his Vehicle

The Colorado Court of Appeals issued its opinion in People v. Gow on Thursday, August 25, 2016.

Tommy Gow was walking in a residential neighborhood at about 2:15 a.m. when a police officer approached him. Gow told the officer he had just purchased an iPad from a friend, and, when the officer verified that Gow had no outstanding warrants, he told Gow he was free to leave. Gow started to leave, but then flagged down the officer and asked for a ride to another house a few blocks away. The officer told Gow he would have to pat him down to check for weapons before Gow could enter his car, and also wanted to look in the iPad box. When Gow opened the box, two small baggies fell to the ground, which Gow told the officer contained “speed.” Gow was arrested and ultimately convicted of possession of methamphetamine and possession of a schedule I controlled substance. He appealed, arguing the officer’s pat-down search violated his Fourth Amendment rights and therefore the evidence should have been suppressed.

On appeal, the Colorado Court of Appeals evaluated Gow’s claim that the pat-down search, including the search of the box, was unconstitutional because under People v. Berdahl, 2012 COA 179, “an officer may not, in the course of providing a courtesy ride, search the individual to be transported without a reasonable, articulable suspicion that the individual is armed and dangerous.” Because the officer in this case did not have a reasonable suspicion that Gow was armed and dangerous, the pat-down search was unconstitutional and the resulting evidence should have been suppressed. The trial court did not cite Berdahl, but its holding that the pat-down was reasonable was directly at odds with Berdahl‘s holding that Colorado does not recognize an “officer safety” exception to the rule that an officer must have a reasonable, articulable suspicion before searching a person.

The court of appeals disagreed with Berdahl, finding that the out of state cases relied on by the division in Berdahl did not stand for the position that an officer may never conduct a pat-down search without reasonable suspicion. The court concluded that the reason for the search was determinative, and in cases where the officer was conducting a pat-down search for his or her own safety prior to transporting individuals in his or her car, it was reasonable for the officer to conduct a pat-down for weapons. The court found it would be illogical to require an officer to compromise his or her safety by allowing individuals in his or her car without patting them down for weapons, and the unintended result would be that officers would be reluctant to offer courtesy rides. The court noted that the Berdahl division was rightly concerned about eroding Fourth Amendment protections, but noted that by only permitting pat-down searches prior to allowing individuals to receive rides, the Fourth Amendment would not be violated.

The court of appeals affirmed the trial court’s denial of Gow’s suppression motion.

Chief Justice Directive 95-01 Regarding Authority of Chief Judges Amended

On Friday, August 26, 2016, the Colorado State Judicial Branch released an amended version of Chief Justice Directive 95-01, “Authority and Responsibility of Chief Judges,” effective August 24, 2016. The changes to the Chief Justice Directive were minor; section 3 of the Directive was amended to clarify the Chief Justice’s authority to designate a presiding county court judge in each county with more than one county court judge. Click here to read the directive; click here for all of the Colorado Supreme Court’s Chief Justice Directives.

Tenth Circuit: Unpublished Opinions, 8/29/2016

On Monday, August 29, 2016, the Tenth Circuit Court of Appeals issued four published opinions and eight unpublished opinions.

Martinez Garcia v. Lynch

In re Anthony: J&R Investment v. Anthony

United States v. Clayton

Krug v. Kastner

Jimenez v. Fourth Judicial District Attorney’s Office

United States v. Castillo-Arment

United States v. Olaveson

United States v. Santiago-Villanueva

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.