United States v. Gilmore

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS January 16, 2015

Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.
No. 14-1088
ANDRE GILMORE,

Defendant - Appellant.

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

Madeline S. Cohen, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with her on the briefs), Office of the Federal Public Defender for the District of
Colorado, appearing for Appellant.

Catherine M. Gleeson, Assistant United States Attorney (John F. Walsh, United States
Attorney, and Robert Mark Russel, Assistant United States Attorney, 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.
 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.

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 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

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that unlike exhibitors in Lot C—a fenced-in lot adjacent to a cattle tie-out area1—Mr.

Gilmore was not wearing a badge and was not dressed in rancher-style clothing. After

following Mr. Gilmore as he walked into the tie-out area, Mr. Gomez contacted Vincent

Garcia, a security guard in Lot C, who reported Mr. Gilmore’s presence to his supervisor.

Shortly thereafter, a police dispatcher broadcast a brief description and location of Mr.

Gilmore, describing him as a suspicious 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. Garcia, who had seen Mr. Gilmore

in the lot and told the officers Mr. Gilmore appeared “very disoriented” and “obviously

out of it.” ROA, Vol. 3 at 72, 98. By this time, Mr. Gilmore had walked to the north end

of the tie-out area, which was closed off by a fence. The officers drove through the

parking lot entrance and parked their unmarked 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 wearing 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 night.” 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.

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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 difficulty focusing; walking in a meandering,

unsteady fashion; and did not appear to recognize the officers’ 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 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-

4
The district court determined Mr. Gilmore’s two coats “were not inappropriate
for the weather,” which was approximately six degrees Fahrenheit. ROA, Vol. 1 at 53.

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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.

B. Procedural Background

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.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 interviewed Mr. Gilmore the day after Lt.
Gavito arrested him.

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Gilmore’s motion to suppress. The court determined 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 grounds. 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 into custody. Colo.

Rev. Stat. § 27-81-111(1)(a).6

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.

II. DISCUSSION

On appeal, Mr. Gilmore challenges the denial of his motion to suppress. He

6
Colorado’s Emergency Commitment statute states in pertinent part:

When a person is intoxicated or incapacitated by alcohol and clearly
dangerous to the health and safety of himself, herself, or others, he or she
shall be taken into protective custody 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 facility or jail, but only 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).

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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.

A. Standard of Review

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).

B. Legal Background
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 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 under the Fourth Amendment—

subject only to a few specifically established and well-delineated exceptions.” Katz v.

United States, 389 U.S. 347, 357 (1967). One such 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 person, 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 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
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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).

C. Analysis

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.

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 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.
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 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 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 suppression hearing, we conclude the officers had

probable cause to believe Mr. Gilmore was sufficiently intoxicated so as to pose a danger

to himself.

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.
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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, and unable to respond to simple questions

were enough to establish a reasonable belief Mr. Gilmore was sufficiently intoxicated for

protective custody. See Qian v. Kautz, 168 F.3d 949, 954 (7th Cir. 1999) (concluding an

officers’ observations of general 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 caretaking function by stopping a person who

appeared to be under the influence of drugs 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, Mr. Gilmore argues only that the officers did not
have probable cause to believe he was sufficiently 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 (recounting the officers’ testimony and concluding
“[t]hese facts suggest that he may have been intoxicated or experiencing some other
problem of perception, but they did not justify immediately proceeding to, ‘we’re taking
you to detox’”).

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display any physical signs of intoxication [and] did not stumble or slur his speech.”).8

Second, it was reasonable for the officers to determine Mr. Gilmore’s perception

and reaction time were impaired. When the officers, who were both wearing police

uniforms, exited their vehicle and initially encountered Mr. Gilmore, he did not appear to

notice their presence. Then, when Lt. Gavito approached him, Mr. Gilmore still did not

appear to register his presence until Lt. Gavito 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 motor 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. Gilmore was intoxicated and had impaired

perception informed their assessment that Mr. Gilmore was at risk. Meehan v.

8
The Colorado Supreme Court has recognized 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).

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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.”).

2. Environmental Factors

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
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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.9 ROA, Vol. 3 at 81-82.

Witnesses also testified car thefts had occurred in the adjoining lots. A reasonable officer

could believe Mr. Gilmore could be harmed if he wandered disoriented into one of the

surrounding neighborhoods or areas carrying a briefcase.

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. Gilmore that 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 wandered into another area of the Stock Show

or an area outside of the Stock Show with high-speed traffic, he could 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 reasonably believed if Mr. Gilmore were to become

unconscious in a remote area or fail to find shelter when the temperature dropped that

9
Lt. Gavito had been employed at the Stock Show since 1998.

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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 sober person may be dangerous to one who is

severely intoxicated or otherwise incompetent. Bitterly cold weather is one such

circumstance: while most people can be expected to navigate cold weather to find an

indoor shelter, an intoxicated person may lack this capacity.”); Dandrea, 736 P.2d at

1212-13. The district court observed Mr. Gilmore’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 sufficient protection over extended periods of exposure in severe

cold.

* * * *

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

10
The Government’s exhibits showed that on the day Mr. Gilmore was arrested,
the temperature ultimately dropped to negative ten degrees Fahrenheit. [Aplee. Ex. D at
1.]

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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.

III. CONCLUSION

For the foregoing reasons, we affirm the district court.

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