Colorado Court of Appeals People v. Berdahl 11CA0423

Decision here.

   This one is bad.

   Before sunrise in early January, a deputy was dispatched to check the welfare of a stranded motorist on the highway.  The deputy (and a trooper who we'll be meeting in a moment) would later testify that it was really cold.  While the deputy was on his way, he encountered Berdahl.  Berdahl was walking down the road half frozen, and the deputy stopped to render assistance.  Turns out Berdahl had been one of the occupants of the stranded car, and he was trying to go get help.  His girlfriend was still at the car.  The deputy gave Berdahl a ride back to the car after patting him down for weapons.

   Berdahl's girlfriend wasn't doing too well, either.  They had apparently tried to call for help, but no one would come and now their phone was dead anyway.  They had tried to light a fire in a barrel.  Basically, they were screwed.  They waited and warmed up in the deputy's car while he tried to make arrangements for them.

   Enter CSP.  A trooper arrives, and the deputy tells him what's going on.  He agrees to give Berdahl and his girlfriend a ride to a nearby town, since they can't very well be left to fend for themselves against the elements.  Before giving them a ride, he searches Berdahl ***but not his girlfriend.***  That bites him in the ass in court later, and is yet another reason that we should be conducting opposite sex searches the same way we conduct same sex searches.  Anyway, during the search the trooper finds a pipe and a small bag in Berdahl's sock (which the deputy had apparently missed).  He doesn't really examine them until he's already giving the pair a ride, and then he realizes that the bag contains meth.  Berdahl finds himself arrested.

   Berdahl tries to have the evidence suppressed.  The trial court rules that the encounter wasn't really consensual on Berdahl's part, because Berdahl's two options were 1: submit to the search and get a ride, or 2: freeze to death.  Still, the trial court held that the search of Berdahl's person was reasonable for "officer safety."  As a side note, I think that the words "officer safety" are two of the most dangerous words to our profession, perhaps surpassed only by the word "articulate."  We tend to say "officer safety," and then forget that the justification for what they did needs more explanation.  But I digress.

   Berdahl appealed, and the court of appeals held that placing someone in the back seat of a patrol car does not confer the authority to search that person, even when it's all but unavoidable (as in this case).  Although the court acknowledged that putting an unsearched person in the back of a car does pose a risk, the court also noted that the trooper seemed happy enough to face this risk with Berdahl's girlfriend.  And since there was no other evidence to justify the search, and no policy testified to that would require such a search, the search was not constitutionally permissible on safety grounds.

   On the other hand, the court of appeals didn't exactly like the trail court's reasoning on the issue of consent.  The court of appeals pointed out that the question shouldn't have been whether or not the encounter was consensual, but whether or not the search itself was consensual.  The case was sent back to the lower court for a hearing to determine that issue, which will decide the outcome of this case.

   But either way, we all get stuck with this decision.  The damage is limited to a pretty specific set of facts, but situations like this aren't that rare.  I hope to see this one reversed.