PUBLISH UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ANDRE GILMORE, Defendant - Appellant. No. 14-1088

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:13-C R-00034-WJM-1)

Madeline S. Cohen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of th e Federal Public Defender for the District of Colorado, appearing for Appellant. Catherine M. Gleeson, Assistan t United States Attorney (J ohn F. Walsh, United States Attorney, and Robert Mark Russe l, Assistant United States A ttorney, on the brief), Office of the United States Attorney for the District of Colorado , Denver, Colorado, appearing for Appellee.

Before HARTZ , MATHESON , and MORITZ , Circuit Judges.

MATHESON , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### January 16, 2015
Elisabeth A. Shumaker Clerk of Court-2- On January 13, 2013, police officers respond ed to a report of a disoriented person in an exhibitor parking lot at the National Western Stock Show in Denver. Upon arriving at the lot, the officers located Andre Gilmor e, briefly questioned him, and conducted a pat-down search as part of taking him into protective custody. The search revealed a firearm in Mr. Gilmore’s waistband. He was subsequently charged as a felon in possession in violation of 18 U.S.C. § 922(g)(1). Mr. Gilmore moved to supp ress evidence of the firearm, arguing the search violated the Fourth Amendment because the o fficers lacked probable cause to believe he was a danger to himself or others. After holding an evidentiary suppression hearing, the district court denied the motion. Mr. Gilm ore appeals that determination. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Factual Background On the morning of January 13, 2013, Mr. Gilmore used an exit driveway to walk into Parking Lot C at the National Western Stock Show in Denver, Colorado. As Mr. Gilmore entered, a lot attendant, Jason Morris, greeted him and aske d how he was doing. Mr. Gilmore did not respond. Mr. Gilmore was staggering and appeared intoxicated to Mr. Morris. A second attendant , Richard Gomez, observed Mr. Gilmore to be staggering or swerving, mumbling to himself, and appare ntly intoxicated. Mr. Gomez also noted-3- that unlike exhibitors in Lot C—a fenced-in lot adjacen t to a cattle tie-out area 1 —Mr. Gilmore was not wearing a badge and was not dressed in rancher-style clothing. After following Mr. Gilmore as he wa lked into the tie-out area, Mr. Gomez contacted Vincent Garcia, a security guard in Lo t C, who reported Mr. Gilmore’ s presence to his supervisor. Shortly thereafter, a police dispatcher broadc ast a brief description and location of Mr. Gilmore, describing him as a susp icious party who was disoriented. 2 Lieutenant Vincent Gavito and Sergeant Dino Gavito were working at the Stock Show and went to Lot C. 3 The officers spoke to Mr. Ga rcia, who had seen Mr. Gilmore in the lot and told th e officers Mr. Gilmore appeared “very disoriented” and “obviously out of it.” ROA, Vol. 3 at 72, 98. By this time, Mr. Gilmor e had walked to the north end of the tie-out area, which was closed off by a fence. The offi cers drove through the parking lot entrance and parked their unm arked police car facing Mr. Gilmore, who began walking toward the tie-out area entrance where they were waiting. When the officers encountered Mr. Gilmore, he was wear ing a dark red overcoat

1 The cattle tie-out area is “a fenced off area where [exhibitors] put the overflow cattle to bed them down at ni ght.” ROA, Vol. 3 at 72.

2 Several thefts from vehicles had occurred in Stock Show parking lots in the days prior, although none had occurred in Lot C.

3 Lt. Gavito and Sgt. Gavito are brothers.-4- over another dark coat, 4 dark jeans, and tennis shoes, carrying a cloth briefcase over his shoulder, and holding a small plastic bag and a large white jawbreaker in his hands. He was staring blankly into the air; having di fficulty focusing; walk ing in a meandering, unsteady fashion; and di d not appear to recognize the of ficers’ presence. Lt. Gavito’s first impression upon seeing Mr. Gilmore was that he was a candidate for protective custody due to his apparent level of intoxication. The officers, who were bot h wearing uniforms, exited their car and approached Mr. Gilmore. Lt. Gavito asked Mr. Gilmore if he was all right and what he was doing in the lot. Mr. Gilmore turned and looked at Lt. Gavito, apparently registering his presence for the first time, but did not respond. Lt. Ga vito told Mr. Gilmore to put down the items in his hand, and Mr. Gilmore complied. Lt. Gavito identified himself as a police officer and repeated his question to Mr. Gilmore, asking what he was doing in the lot. Mr. Gilmore mumbled an incoherent answer. Lt. Gavito then asked Mr. Gilmore if he had any weapons. When Mr. Gilmore did not answer, Lt. Gavito conducted a pat-down search of his out er clothing. Lt. Gavito felt what he believed to be the butt of a handgun under Mr. G ilmore’s coat. He lifted the coat, saw a pistol, and seized it from Mr. Gilm ore’s waistband. The officers arrested him for possessing a firearm while intoxicated in violation of Colorado Statute § 18-12-

4 The district court determined Mr. Gilm ore’s two coats “were not inappropriate for the weather,” which was approximately six degrees Fahrenheit. ROA, Vol. 1 at 53.-5- 106(d). The officers handcuffed Mr. Gilmore, placed him in their car, and drove him to the Stock Show security office. On the way to the office, Lt. Gavito asked Mr. Gilmore his name, which Mr. Gilmore provided. At the security office, the officers asked Mr. Gilmore for his birthday and used the information to access his criminal history records. They disc overed he had a prior felony conviction that prohibited him from possessing a firearm. Because Mr. Gilmore was incoherent and was in and out of consciousness, the officers did not try to interview him at this time. He was instead transported to the Denver Detention Center and interviewed the following day.
B. Procedural Background A federal grand jury charged Mr. Gilmore w ith one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1 ). Before trial, Mr. Gilmore filed a motion to suppress the gun seized during the pat-down search, arguing the officers lacked reasonable suspicion to believe he was armed and dangerous. The district court held an evidentiary hearing on the mo tion. At that hearing, the Government presented six witnesses: Mr. Morris, Mr. Gomez, Mr. Ga rcia, Lt. Gavito, Sgt. Gavito, and David Gallegos. 5 Mr. Gilmore did not call any witnesses. Based on the testimony presented at the hearing, the district court denied Mr.

5 Mr. Gallegos is a police officer who in terviewed Mr. Gilmore the day after Lt. Gavito arrested him.-6- Gilmore’s motion to suppress. The court de termined the evidence did not support a reasonable, particularized suspicion that Mr. Gilmore was armed and dangerous and the pat-down search was not justified on those gro unds. The court also determined, however, that Lt. Gavito had probable cause to take Mr. Gilmore into protective custody for detoxification under Colorado’s Emergency Commitment statute, and therefore acted reasonably in frisking Mr. Gilmore for weapons before taking him in to custody. Colo. Rev. Stat. § 27-81-111(1)(a). 6
After the district court denied his mo tion, Mr. Gilmore signed a plea agreement and statement of facts relevant to senten cing. He entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The district court sentenced him to 28 months in prison. He timely appealed.
II. DISCUSSION On appeal, Mr. Gilmore challenges the denial of his motion to suppress. He

6 Colorado’s Emergency Commitment st atute states in pertinent part: When a person is intoxicated or in capacitated by al cohol and clearly dangerous to the health and safety of himself, herself, or others, he or she shall be taken into protective custod y by law enforcement authorities or an emergency service patrol, acting with probable cause, and placed in an approved treatment facility. If no such facilities are available, he or she may be detained in an emergency medical faci lity or jail, but onl y for so long as may be necessary to prevent injury to himself, herself, or others or to prevent a breach of the peace. Colo. Rev. Stat. § 27-81-111(1)(a).-7- argues the district court erred by concluding the officers had pr obable cause to believe he was a danger to himself based on factual findi ngs regarding (1) his degree of intoxication, (2) the dangerousness of the surrounding area, and (3) the danger posed by the cold weather. Mr. Gilmore concedes that if the officers had probable cause to believe he was a danger to himself, they were permitted to co nduct a pat-down search before taking him into protective custody. The Government contends the officers c ould reasonably believe Mr. Gilmore was a danger to himself. It argues in the alterna tive the pat-down search was justified because the officers had probable cause to arrest M r. Gilmore for third-degr ee criminal trespass. Based on the facts established at the supp ression hearing, we conclude the officers had probable cause to believe Mr. Gilmore wa s a danger to himself. Accordingly, we need not reach the Government ’s argument that the officers also had probable cause to arrest Mr. Gilmore for third- degree criminal trespass.
A. Standard of Review In reviewing a district court’s denial of a motion to suppress, we view the evidence in the light most favor able to the Government and accept the district court’s factual findings unless clearly erroneous. See United States v. Hunter , 663 F.3d 1136, 1141 (10th Cir. 2011). We review de novo the ultimate determination of the reasonableness of a search or seizure under the Fourth Amendment. United States v.
Karam , 496 F.3d 1157, 1161 (10th Cir. 2007).
B. Legal Background-8- The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “[S]earc hes conducted outside the judi cial process, without prior approval by judge or magist rate, are per se unreasonable under the Fourth Amendment— subject only to a few specifically estab lished and well-delinea ted exceptions.” Katz v. United States , 389 U.S. 347, 357 (1967). One su ch exception is for “community caretaking functions,” which are police actions “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal
statute.” Cady v. Dombrowski , 413 U.S. 433, 441 (1973). Under this exception, “a police officer may have occasion to seize a pe rson, as the Supreme Court has defined the term for Fourth Amendment purposes, in order to ensure the safety of the public and/or the individual, regardless of any suspected criminal activity.” United States v. King , 990 F.2d 1552, 1560 (10th Cir. 1993). We have recognized the community careta king function allows police officers to perform investigatory seizures of intoxicated persons. See United States v. Garner , 416 F.3d 1208, 1213-15 (10th Cir. 2005) (observing the community caretaking function allows officers to detain intoxicated indivi duals who pose a hazard to themselves or others); Gallegos v. City of Colo. Springs , 114 F.3d 1024, 1029 n.4 (10th Cir. 1997) (determining the community caretaking fu nction permitted officers to detain an apparently intoxicated citizen). To ensure community caretaking comports with the Fourth Amendment, we have emphasized officer s must first have probable cause to take-9- an individual into protective custody. “[T]o justify seizure for intoxication by alcohol, an officer must have probable cause to believe an intoxicated person is a danger to himself or others.” Anaya v. Crossroads M anaged Care Sys., Inc. , 195 F.3d 584, 591 (10th Cir. 1999) . The determination of probable ca use “is based on the totality of the circumstances, and requires reasonably trus tworthy information that would lead a reasonable officer to believe,” in this cont ext, that the individual posed a danger to himself or others. Cortez v. McCauley , 478 F.3d 1108, 1116 (10th Cir. 2007).
C. Analysis When assessing whether an intoxicated pers on is a threat to himself or others, a totality of the circumstances an alysis must consider the pers on’s degree of impairment as well as potential threats in the surrounding environment. Considering these factors together, and construing the uncontroverted facts in the light mo st favorable to the Government, we agree with the district cour t that the officers had probable cause to believe Mr. Gilmore was a danger to himself.
1. Mr. Gilmore’s Intoxication On appeal, Mr. Gilmore asserts there is no evidence about his level of intoxication other than witness testimony that he appeared intoxicated, was walking in a meandering manner, and was staring into space. He also asserts there is no evidence suggesting his reaction time and powers of observation were si gnificantly impaired because he reacted when Lt. Gavito first spoke to him and complied with Lt. Gavito’s request to put down his briefcase and candy.-10- In determining whether Mr. Gilmore wa s sufficiently intoxicated so as to constitute a threat to himself, however, an of ficer may consider a variety of factors. “Probable cause only requires a probability of . . . activity, not a prima facie showing of such activity.” Wilder v. Turner , 490 F.3d 810, 813 (10th Cir. 2007) (articulating the probable cause standard in a Fourth Amendmen t case concerning an officer’s assessment of an individual’s degree of intoxication). Although the officers here did not use a breathalyzer or blood draw test to establish intoxication, other facts available to officers may suffice for them to determine an individual is intoxicated. See United States v. Chavez , 660 F.3d 1215, 1224 (10th Cir. 2011). In light of the uncontroverted witness testimony and facts established at the suppressi on hearing, we concl ude the officers had probable cause to believe Mr. Gilmore was su fficiently intoxicated so as to pose a danger to himself. First, the officers could reasonably belie ve Mr. Gilmore was intoxicated based on his behavior. The dispatcher informed the o fficers before they arrived that Mr. Gilmore was a suspicious party who appe ared disoriented. When the officers arrived at the lot, Mr. Garcia told the officers M r. Gilmore appeared “very diso riented” and “obviously out of it.” ROA, Vol. 3 at 72, 98. The officer s’ own observations du ring their interactions with Mr. Gilmore confirmed this assessment . Lt. Gavito testified Mr. Gilmore “was having a difficult time focusing,” “[h]e was kind of staring off into the air,” “he wasn’t walking with purpose, in a straight line,” “h e was kind of meandering,” and “his balance was not very steady.” ROA, Vol. 3 at 77. When the officers tried to engage Mr.-11- Gilmore, he was unable to respond coherently to basic questions regarding whether he was all right, what he was doing in the area, and whether he had a weapon. These conditions led Lt. Gavito to conclude Mr. Gilmore “was definitely under the influence of alcohol or drugs, or something.” 7 ROA, Vol. 3 at 78. Mr. Gilmore questions the degree of his impairment, but the district court’s factual findings that Mr. Gilmore was gazing into space, staggering, unsteady, a nd unable to respond to simple questions were enough to establish a reasonable belief Mr. Gilmore was suffici ently intoxicated for protective custody. See Qian v. Kautz , 168 F.3d 949, 954 (7th Cir. 1999) (concluding an officers’ observations of genera l indicators of intoxication “( e.g. , slurred speech, unsteadiness, etc.)” may be sufficient for officer to reasonably determine a person is intoxicated even though specific indicators “( e.g. , smell of alcohol, bloodshot eyes, failed sobriety tests, etc.)” are lacking); United States v. Luginbyhl , No. 06-CR-0206-CVE, 2007 WL 2579622, at *2 (N.D . Okla. Aug. 8, 2007) (determining an officer was permissibly exercising the community care taking function by st opping a person who appeared to be under the influence of drug s or had a mental illness but who “did not

7 We do not understand Mr. Gilmore to be arguing he was sober at the time of his interaction with the officers. On appeal, M r. Gilmore argues only that the officers did not have probable cause to believe he was suffici ently intoxicated so as to pose a danger to himself. See Oral Arg. at 2:45 (suggesting we do not know whether Mr. Gilmore was intoxicated); Oral Arg. at 7:20 (recoun ting the officers’ testimony and concluding “[t]hese facts suggest that he may have been intoxicate d or experiencing some other problem of perception, but they did not jus tify immediately proceeding to, ‘we’re taking you to detox’”).-12- display any physical signs of intoxication [and] did not st umble or slur his speech.”). 8 Second, it was reasonable for the officers to determine Mr. Gilmore’s perception and reaction time were impaired. When th e officers, who were both wearing police uniforms, exited their vehicle and initially enco untered Mr. Gilmore, he did not appear to notice their presence. Then, wh en Lt. Gavito approached him, Mr. Gilmore still did not appear to register his presence until Lt. Ga vito greeted him and asked if he was all right. This evidence could lead a reasonable officer to believe Mr. Gilmore’s perception was limited. See Edwards v. Bray , 688 F.2d 91, 92 (10th Cir. 1982) (“Intoxication increases reaction time and reduces speed of mo tor responses, including those of auditory discrimination and judgment.” ) (citing 4 Gray, Attorney’s Textbook of Medicine, P 133.51 (3d ed. 1981)). The officers’ determination that Mr. G ilmore was intoxicated and had impaired perception informed their assessment that Mr. Gilmore was at risk. Meehan v.

8 The Colorado Supreme Court has rec ognized officers’ discretion under the Emergency Commitment statute: Under section 25-1-310(1), it is the officer who must determine whether the intoxicated person is clearly dangerous . The General Assembly plainly did not intend for the police to take into protective custody every intoxicated person they meet. Instead, the General Assembly designated a specific class of intoxicated persons who are subject to emergency commitment and left the determination of whether a particular individual is clearly dangerous to the police. Leake v. Cain , 720 P.2d 152, 164 (Colo. 1986).-13- Thompson , 763 F.3d 936, 944 (8th Cir. 2014) (“Police officers are often constitutionally obligated to care for [intoxicated] individual s, and because alcohol can have disparate effects on different people, police officers must be given some latitude in evaluating whether an intoxicated individual can properly care for herself.”).
2. Environmental Factors Mr. Gilmore additionally argues the Go vernment offered no witness testimony that the surrounding environment placed him in danger. He contends the Stock Show area was not dangerous. He notes the distri ct court observed th e two coats he was wearing were “not inappropriate for the weather.” ROA, Vol. 1 at 53. We do not look at the surrounding envir onment in a vacuum; in the totality of the circumstances analysis, we consider the threat it might pose to somebody in Mr. Gilmore’s position. Conditions that may not pose a danger to a sober individual may be treacherous to someone who is disoriented, intoxicated, or otherwise impaired. See Meehan , 763 F.3d at 942 (“[A] pe rson’s intoxication may exacerbate the other potential hazards of her environment, su ch as the late hour and her location on a public roadway, and may impair her ability to recognize these hazards.”); People v. Dandrea , 736 P.2d 1211, 1212-13 (Colo. 1987) (observing a stop an d frisk of an intoxicated person prior to protective custody was conduct ed because “the day was ex tremely cold” and the person was stopped “on an isolated mountain road”). Here, the record supports the officers’ reasonable belief that Mr. Gilmore was at risk in the Stock Show’s environs. First, although there was no witness tes timony that the neighborhood surrounding-14- the Stock Show placed Mr. Gilmore in imme diate danger, there was testimony that the surrounding neighborhood was dangerous. Lt. Gavito testifie d the neighborhood surrounding the Stock Show was “very predom inant with gang members” and “a lot of gang activity,” and he testified that in hi s years working at the Stock Show he had numerous encounters with un authorized weapon possession. 9 ROA, Vol. 3 at 81-82. Witnesses also testified car th efts had occurred in the adjoin ing lots. A reasonable officer could believe Mr. Gilmore could be harmed if he wandered disoriented into one of the surrounding neighborhoods or ar eas carrying a briefcase. Second, Mr. Gilmore argues nothing in th e record established the presence of cattle in the tie outs or heavy or high-speed tra ffic in Lot C or its vicinity that would place him in danger. We agree with Mr. Gilmore th at there was no evidence of cattle in the tie outs or high-speed traffic in Lot C at the time he was arrested. But the officers could have reasonably believed if Mr. Gilmore wa ndered into another area of the Stock Show or an area outside of the Stock Show with hi gh-speed traffic, he c ould have been struck by a car given his impaired state. See Dandrea , 736 P.2d at 1212. Finally, although the court determined Mr. Gilmore’s dress was seasonally appropriate, the officers could have reasonabl y believed if Mr. Gilmore were to become unconscious in a remote area or fail to find shelter when the temp erature dropped that

9 Lt. Gavito had been employed at the Stock Show since 1998.-15- evening, 10 he could suffer serious injury or death. Weather that would not be dangerous to a properly dressed and sober individual can become dangerous when that person is intoxicated. See Gladden v. Richbourg , 759 F.3d 960, 966 (8th Cir. 2014) (“Circumstances that are harmless to a sobe r person may be dangerous to one who is severely intoxicated or othe rwise incompetent. Bitterly cold weather is one such circumstance: while most people can be expect ed to navigate cold weather to find an indoor shelter, an intoxicated pe rson may lack this capacity.”); Dandrea , 736 P.2d at
1212-13 . The district court observed Mr. Gilmor e’s two coats were “not inappropriate for the weather,” ROA, Vol. 1 at 53, but this does not mean Mr. Gilmore was fully protected from the elements. Clothing that might be sufficient for a mid-day walk does not necessarily provide suffici ent protection over extended pe riods of exposure in severe cold.
* * * * We conclude the totality of th e circumstances could lead a reasonable officer to conclude Mr. Gilmore was a danger to himsel f because he appeared to be severely intoxicated to the point of impairment a nd he was in an environment that posed significant risks to an impaired individual. We stress that our holding is narrow and highly fact-dependent. Officer s must have probable cause to take an individual into

10 The Government’s exhibits showed that on the day Mr. Gilmore was arrested, the temperature ultimately dropp ed to negative ten degrees Fahrenheit. [Aplee. Ex. D at 1.]-16- protective custody, and Mr. Gilmore only contes ts whether the facts support the officers’ determination that he was a danger to himself. Based on uncontroverted testimony indicating Mr. Gilmore was highly unresponsi ve in an unforgiving environment with considerable risks to his safety, we conclu de it was within the scope of the officers’ community caretaking function to ensu re he was safe from harm.
III. CONCLUSION For the foregoing reasons, we affirm the district court.