MATHESON, Circuit Judge.
On January 13, 2013, police officers responded 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 Gilmore, 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 suppress evidence of the firearm, arguing the search violated the Fourth Amendment because the officers 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. Gilmore appeals that determination. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
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 asked 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 apparently intoxicated. Mr. Gomez also noted that unlike exhibitors in Lot C — a fenced-in lot adjacent to a cattle tie-out area
Lieutenant Vincent Gavito and Sergeant Dino Gavito were working at the Stock Show and went to Lot C.
When the officers encountered Mr. Gilmore, he was wearing a dark red overcoat over another dark coat,
The officers, who were both 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. Gavito 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 outer clothing. Lt. Gavito felt what he believed to be the butt of a handgun under Mr. Gilmore's coat. He lifted the coat, saw a pistol, and seized it from Mr. Gilmore's waistband. The officers arrested him for possessing a firearm while intoxicated in violation of Colorado Statute § 18-12-106(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 discovered 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.
A federal grand jury charged Mr. Gilmore with 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 motion. At that hearing, the Government presented six witnesses: Mr. Morris, Mr. Gomez, Mr. Garcia, Lt. Gavito, Sgt. Gavito, and David Gallegos.
Based on the testimony presented at the hearing, the district court denied Mr. Gilmore's motion to suppress. The court determined
After the district court denied his motion, Mr. Gilmore signed a plea agreement and statement of facts relevant to sentencing. 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.
On appeal, Mr. Gilmore challenges the denial of his motion to suppress. He argues the district court erred by concluding the officers had probable cause to believe he was a danger to himself based on factual findings 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 conduct a pat-down search before taking him into protective custody.
The Government contends the officers could reasonably believe Mr. Gilmore was a danger to himself. It argues in the alternative the pat-down search was justified because the officers had probable cause to arrest Mr. Gilmore for third-degree criminal trespass.
Based on the facts established at the suppression hearing, we conclude the officers had probable cause to believe Mr. Gilmore was 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.
In reviewing a district court's denial of a motion to suppress, we view the evidence in the light most favorable 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).
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]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable
We have recognized the community caretaking 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 individuals 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 function permitted officers to detain an apparently intoxicated citizen). To ensure community caretaking comports with the Fourth Amendment, we have emphasized officers must first have probable cause to take 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 Managed Care Sys., Inc., 195 F.3d 584, 591 (10th Cir.1999). The determination of probable cause "is based on the totality of the circumstances, and requires reasonably trustworthy information that would lead a reasonable officer to believe," in this context, that the individual posed a danger to himself or others. Cortez v. McCauley, 478 F.3d 1108, 1116 (10th Cir.2007).
When assessing whether an intoxicated person is a threat to himself or others, a totality of the circumstances analysis must consider the person'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 most favorable to the Government, we agree with the district court that the officers had probable cause to believe Mr. Gilmore was a danger to himself.
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 significantly 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.
In determining whether Mr. Gilmore was sufficiently intoxicated so as to constitute a threat to himself, however, an officer 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 Amendment case concerning an officer's assessment of an individual's degree of intoxication). Although the officers here did not use a breathalyzer or blood
First, the officers could reasonably believe Mr. Gilmore was intoxicated based on his behavior. The dispatcher informed the officers before they arrived that Mr. Gilmore was a suspicious party who appeared disoriented. When the officers arrived at the lot, Mr. Garcia told the officers Mr. Gilmore appeared "very disoriented" and "obviously out of it." ROA, Vol. 3 at 72, 98. The officers' own observations during 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," "he was kind of meandering," and "his balance was not very steady." ROA, Vol. 3 at 77. When the officers tried to engage Mr. 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."
The officers' determination that Mr. Gilmore was intoxicated and had impaired perception informed their assessment that Mr. Gilmore was at risk. Meehan v. Thompson, 763 F.3d 936, 944 (8th Cir. 2014) ("Police officers are often constitutionally obligated to care for [intoxicated] individuals, 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.").
Mr. Gilmore additionally argues the Government offered no witness testimony that the surrounding environment placed him in danger. He contends the Stock Show area was not dangerous. He notes the district court observed the two coats he was wearing were "not inappropriate for the weather." ROA, Vol. 1 at 53.
We do not look at the surrounding environment 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] person's intoxication may exacerbate the other potential hazards of her environment, such 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 and frisk of an intoxicated person prior to protective custody was conducted because "the day was extremely 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 testimony that the neighborhood surrounding the Stock Show placed Mr. Gilmore in immediate danger, there was testimony that the surrounding neighborhood was dangerous. Lt. Gavito testified the neighborhood surrounding the Stock Show was "very predominant with gang members" and "a lot of gang activity," and he testified that in his years working at the Stock Show he had numerous encounters with unauthorized weapon possession.
Second, Mr. Gilmore argues nothing in the record established the presence of cattle in the tie outs or heavy or high-speed traffic in Lot C or its vicinity that would place him in danger. We agree with Mr.
Finally, although the court determined Mr. Gilmore's dress was seasonally appropriate, the officers could have reasonably believed if Mr. Gilmore were to become unconscious in a remote area or fail to find shelter when the temperature dropped that evening,
We conclude the totality of the circumstances could lead a reasonable officer to conclude Mr. Gilmore was a danger to himself because he appeared to be severely intoxicated to the point of impairment and he was in an environment that posed significant risks to an impaired individual. We stress that our holding is narrow and highly fact-dependent. Officers must have probable cause to take an individual into protective custody, and Mr. Gilmore only contests whether the facts support the officers' determination that he was a danger to himself. Based on uncontroverted testimony indicating Mr. Gilmore was highly unresponsive in an unforgiving environment with considerable risks to his safety, we conclude it was within the scope of the officers' community caretaking function to ensure he was safe from harm.
For the foregoing reasons, we affirm the district court.
Colo.Rev.Stat. § 27-81-111(1)(a).
Leake v. Cain, 720 P.2d 152, 164 (Colo.1986).