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ADVANCE SHEET HEADNOTE

April 29 , 2019
2019 CO 29
No. 1 6 SC 542 , People v. Berdahl
— Fourth Amen dment
— Voluntary Nature in General
— Validity of Consent. This case principally requires the supreme court to decide whether the defendant’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. The court now concludes that when the defendant 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 get ting into the car, he, by his conduct, voluntarily consented to the officer’s limited pat

- down search, and therefore, the search was constitutional. Accordingly, the court reverses the judgment of the division below

.The Supreme Court of the State of Colorado 2 East 14 th Avenue • Denver, Colorado 80203

2019 CO 29 Supreme Court Case No. 16SC542 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 14CA72

Petitioner:
The People of the State of Colorado ,

v. Respondent:
Brent Richard Berdahl

. Judgment Reversed en banc 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

JUSTICE GABRIEL delivered the Opinion of the Court.2

¶1 This case principally asks us to decide whether Brent B er dahl’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 W e 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 constitutiona l

. ¶2 Accordingly , we reverse the judgment of the division below

. 

### I. Facts and Procedural History
¶3 Ea rly one January morning , a Weld County sheriff’s deputy was dispatched to a n intersection in Weld County to check on the well

- being of two p eople who se 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 along side the road way
. The deputy activ at ed his
emergency lights and pulled over , recognizing that the man was not dressed for the

1 W e granted certiorari to review the following issues: 1. Whether a police officer may offer to provide a consensual ride in a patrol car to a person needing transport, but require that the person submit to a pat

- down search before entering the patrol car. 2. Whether People v. Berdahl , 2012 COA 179, 310 P.3d 230, should be overruled, and the constitutionality of the pat

- down search in this case be upheld under the principle s stated in People v. Gow , 2016 COA 119M,

__ P.3d __.3

f reezing temperatures and that he looked “close to hypothermic.” The man , Berd ah l, explained that h is 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 d eputy asked for identification, which Berdahl provided , and offered to let B erdahl 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 T he d eputy 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

. T hey all refused , however, because neither B e rdahl n or 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 off er any assistance to them, he offered to transport the m to the nearest gas station

. They a ccepted the offer and collected their personal items from the truck. The s ergeant then explained that before allowing
the m to get i nto 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 pat4

down

. During th is pat dow n, the s ergeant 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 rea ched down to his other ankle , lifted his pant leg , and pulled out a little
blue zipper bag , which he handed to the sergeant

. ¶7 T he 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 , t he 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 in side the blue bag , where he found a small plastic baggy containing a while crystalli ne substance, which he believed to be methamphetamine

. He the n arrested Berdahl.
¶8 The prosecution subsequently charged Berdahl w ith 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 heari ng, 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.”5

¶10 In a lengthy and comprehensive written order, t he trial court denied Berdahl’s
motion to supp ress
. Although the court found that the pat down was not consensual
because a reasonable person in Berdahl’s circumstances c ould 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

. T he court first found that due to
Berdahl ’s physical state , the s ergeant “had no real choice but to transport the defendant in his police car

. ” T he court then determined that the sergeant “ had the constitutional prerogative to pat down the defendant for weapons to [e] nsure officer safety

. ” T herefore,
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 remand ed 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
voluntaril y 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
Berd ah l was entitled to a new trial. Id. at ¶ 3 7 , 310 P.3d at 2 38

.6

¶13 On remand, the trial court applied the Magallanes

- Aragon standard and concluded
that Berdahl had voluntar il y consented to the pat

- down search. In support of this determination, the court foun d 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.” T he court explained , “While some of the subjective factors indicate that
Mr. Berdahl may have felt that there was no real choice but to consent , t he 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 aut hority constitutes objective evidence of police
coercio n and that the mere submission to that assertion of authority does not constitute voluntary consent. In a partially divided , un published opinion , a different court of appeals division agreed with Berd ahl

. People v. Berdahl , No. 14CA72, slip op. at 12 (Colo. App. Jun e 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

. T he 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 co ncluded that because the

s ergeant ’s statement that he was going to conduct a pat down to check for weapons7

constituted a claim of lawful authority , and because Berdahl’s “consent” constituted mere acquiescence to that claim, the sergeant’s actions “c ould 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 t he sergeant stated that he was going to conduct a pat down, Berd ah l immediately put his hands on the trunk of the patrol car and spread his legs

. Id. at 23. In the majority ’s view, Berd ah l’s reaction did not evince voluntary consent
but rather , as noted above, constituted mere acquiescence to the s ergeant’s claim of lawful authority

. Id. T he 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 exp ress ed concern that if the s ergeant ’s
statement that he “ was just going to conduct a quick pat

- down frisk for any weapons”
constitute d 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 req uest 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 order and t he legal principles governing the consent exception to the Fourth
Amendment’s warrant requirement. Applying those principles here, we proceed to8

conclude that when Berdahl accepted the sergeant’s offer of a courtesy ride and then submitted to a brief pat dow n for weapons before getting into the car, he , by his conduct, voluntarily consented to the pat

- down search . Accordingly, the search was
constitutional.



### A. Standard of Review and Applicable Legal Principles
¶18 Our r eview of a trial court’s suppression order presents a mixed question of fact
and law. People v. Hyde , 2017 CO 24, ¶ 9, 393 P.3d 962, 96 5

. W e defer to the trial court’s
f actual findings if they are supported by the record, but we assess the legal effect of those
facts de novo. Id. In our de novo review, we will correct the t rial court’s legal conclusions
if the court applied an erroneous legal standard to the facts of the case. People v. Munoz

- Gutierrez , 2015 CO 9, ¶ 14, 342 P.3d 439, 443

. ¶19 It has been long settled that a pat down, or a “frisk,” is a search. See Terry v. Ohio , 392 U.S. 1, 16 (1968). The United States and Colorado Constitutions protect persons against unreasonable searches and seizures . U.S. Const. amend. IV; Colo. Const. art. II, § 7. A search is presumptively unreasonable when it is conducted without a warrant
unless t h e search falls within one of the well

- established exceptions to the warrant requirement. People v. Pate , 71 P.3d 1005 , 1010 (Colo. 2003)

. ¶20 One such exception exists when a person voluntarily cons ents to a search. See
Schneckloth v. Bustamonte , 412 U.S. 218, 24 2

– 4 3 (1973). Consent is voluntary if it is “the product of an essentially free an d unconstrained choice by its maker.” Munoz

- Gutierrez , ¶ 16 , 342 P.3d at 444 (quoting Schneckloth , 412 U.S. at 225). It cannot be “the result of9

circumstances which overbear the consenting party’s will and critically impair his or her capacity for self

- determination.” Magallanes

- Aragon , 948 P.2d at 530

. ¶21 Conversely, c onsent is involuntary if it is “the res ult of duress or coercion, express or implied, or any other form of undue influence exercised [by the police] against the
defendant.” Munoz

- Gutierrez, ¶ 17 , 342 P.3d at 444 (quoting Magallanes

- Aragon , 948 P.2d at 531). “Undue influence includes promises, threats, and intrusive or threatening police
conduct.” Id.
¶22 C onsent may be express, or it may be implied through words, actions, or both. See,
e.g. , United States v. Rodriguez , 834 F.3d 937, 940 (8th Cir. 2016) (explaining that “ [ c ] onsent may be inferred from the defendant’s ‘words, gestures, or other conduct,’ and the ultimate inquiry is not whether the defendant subjectively consented, but whether ‘a reasonable officer would believe consent was given’”) (quoting United States v.
Pena

- Ponce , 588 F.3d 579 , 584 (8th Cir. 2009)) ; United States v. Sabo , 724 F.3d 891, 893 (7th Cir. 2013) (explaining that “[i]mplied consent may be manifested verbally or nonverbally”).
¶23 T o assess whether a person’s consent was voluntary , courts must apply an objective test that t akes into account the totality of the circumstances and determines whether the defendant could reasonably have construed the police conduct to be
coercive

. Munoz

- Gutierrez , ¶ 23, 342 P.3d at 445. Pertinent considerations include the defendant’s age, educ ation, and intelligence; the duration, location, and circumstances of the search; the defendant’s state of mind ; and any other factors that could have affected the defendant’s free and unconstrained choice in consenting to the search. Id. at ¶ 20 ,10

342 P.3d at 444. T his includes whether the defendant knew that he or she had a choice,
al though consent can be voluntary even if the defendant did not know that he or she was
free to withhold consent. Schneckloth , 412 U.S. at 227; People v. Chavez

- Barrag an , 2016 CO 66, ¶ 38, 379 P.3d 330, 339. In this regard, we note that although Colorado statutory law provides that peace officers must explain to suspects that they have the right to refuse

consent , an officer’s failure to give this advisement is only on e factor in determining the voluntariness of consent. § 16

- 3

- 310(1)(b)(II), (3), C.R.S. (2018); accord Chavez

- Barragan , ¶ 38, 379 P.3d at 339.
¶24 The essential consideration in determining the voluntariness of a defendant’s
consent to search is “the impact o f overbearing, coercive, or deceptive police conduct on a person with the knowledge and particular characteristics of the defendant.” Magallanes

-

Aragon , 948 P.2d at 53 3 ; see also People v. Marujo , 192 P.3d 1003, 1007 (Colo. 2008) (listing factors that may demonstrate that a reasonable, innocent person would not
feel free to decline a police officer ’ s request or to terminate an encounter).


### B
. A pplication
¶25 Here, the trial court found that Berdahl had voluntarily consented to the pat d own.
In reaching t his c onclusion , the court r ecognized that certain factors, including the
location of the search , the weather conditions , and Berdahl’s perceptions, tended to
indicate that Berdahl subjectively perceived that he had no choice but to submit to the
search. The co urt further found, however, that other objective factors should have made clear to Berdahl that he was not under investigation and that the only reason he was being asked to consent to a pat

- down search was for officer safety. As a result, the court11

perceived no objective evidence of improper conduct or undue influence and thus
determined that the search was constitutional

. ¶26 Considering the totality of the circumstances in light of the factors set forth above,
we agree that the pat down here was consti tutional

. We reach this conclusion for several

reasons. ¶27 First, the record contains no evidence that either of the officers did anything to overbear Berdahl’s will or in any way impair his capacity for self

- determination. Nor
does the record contain evide nce to establish that the limited search conducted in this

case was the product of duress, coercion, deception, or undue influence by the officers. Although to be sure, Berdahl found himself in difficult circumstances, the officers did not
create those ci rcumstances, and to the extent that Berdahl felt that he had no choice but to agree to the pat down as a condition of accepting a courtesy ride, that perception was not caused by any conduct of the officers. Indeed, the evidence makes clear that the
offic ers did nothing other than offer to assist Berdahl, who needed help , while at the same time taking appropriate precautions to ensure their own safety.
¶28 Second, we perceive nothing about Berdahl’s age, education, intelligence, or state of mind that would sug gest that he was unable to consent voluntarily. To the contrary,
Berdahl’s conduct evinced his voluntary submission to the pat down. He immediately and without protest plac ed his hand s on the trunk of the police car and spread his legs when the sergeant explained that he would need to conduct a brief pat down for weapons before allowing Berdahl to get into the police car

.12

¶29 Third, the duration of the search was brief, and we see nothing in the location of the search to suggest that it was the product of pol ice coercion. Nor, as noted above, do
the circumstances in which Berdahl found himself render the officers’ conduct coercive.
¶30 Finally, although the sergeant did not expressly advise Berdahl of his right to refuse consent, we cannot say that this alone ren dered Berdahl’s consent involuntary. As the trial court found, with ample record support, an objectively reasonable person in Berdahl’s position would have fully understood that the only reason that he was being
asked to consent to a pat

- down search was f or officer safety , and not in connection with a coercive investigation into any suspected criminal activity

. ¶31 For these reasons, we conclude that Berdahl voluntarily consented to the brief pat

- down search at issue , and therefore , th at search was constitutional. In light of this determination, we need not address the second issue on which we granted certiorari.


### III. Conclusion
¶32 We have frequently acknowledged that the touchstone for determining the constitutionality of a search under t he Fourth Amendment is reasonableness. See, e.g. , People v. Stock , 2017 CO 80, ¶ 17, 397 P.3d 386, 391. Here, we perceive nothing about these
officers’ conduct that was unreasonable. To the contrary, the largely undisputed
evidence in this case show s th at the officers did precisely what good and conscientious law enforcement officers would do to help citizens in need, while a t the same time taking appropriate precautions to ensure their own safety.
¶33 We thus conclude that w hen Berdahl accepted the sergeant ’s offer of a courtesy ride in the sergeant’s car and submitted to a brief pat down for weapons before getting13

into the car, he , by his conduct, voluntarily consented to the sergeant’s limited pat

- down
search . Accordingly, we hold that the search was constitutional , and we therefore reverse
the judgment of the division below.