Interlocutory Appeal from the District Court Arapahoe County District Court Case No. 22CR505 Honorable David N. Karpel, Judge

          ORDER

          Attorneys for Plaintiff-Appellant: John Kellner, District Attorney, Eighteenth Judicial District L. Andrew Cooper, Deputy District Attorney Centennial, Colorado

          Attorneys for Defendant-Appellee: Law Firm of Heather Little, LLC Heather Little Durango, Colorado

          JUSTICE BOATRIGHT delivered the Opinion of the Court, in which CHIEF JUSTICE MÁRQUEZ, JUSTICE HOOD, JUSTICE HART, and JUSTICE SAMOUR joined. JUSTICE BERKENKOTTER, joined by JUSTICE GABRIEL, dissented.

          OPINION

          BOATRIGHT, JUSTICE.

         ¶1 While conducting an operation to arrest Anthony Veloz at a motel, the police encountered Oscar Jonas Ganaway walking toward the motel. An officer asked Ganaway where he was going, and Ganaway pointed to Veloz's motel room. A detective then asked Ganaway if he could pat him down for weapons, and Ganaway said, "No problem." During the patdown, the detective found methamphetamine and arrested Ganaway. Ganaway later moved to suppress the seized evidence. The trial court granted the motion, finding that the initial encounter was a seizure, and therefore, the evidence arising from the search must be suppressed. The People appealed the trial court's order under section 16-12-102(2), C.R.S. (2024), and C.A.R. 4.1.

         ¶2 We now hold, based on the totality of the circumstances, that the initial encounter between the police and Ganaway was not a seizure, meaning it did not trigger Fourth Amendment protections. We further hold that Ganaway voluntarily consented to the patdown. Accordingly, we reverse the trial court's suppression order and remand the case for further proceedings consistent with this opinion.

         I. Facts and Procedural History

         ¶3 Uncontroverted testimony at the suppression hearing established the following facts.

         ¶4 The Denver Police Department ("DPD") suspected Veloz of supplying drugs that had been smuggled into the Denver City Jail. Veloz's parole officer, Officer DeHerrera, knew that Veloz was staying at a motel in Glendale, Colorado. On the way to the motel to execute an arrest warrant, DPD Detective Foster called the Glendale Police Department ("GPD") investigations unit to ask for assistance. Ultimately, a group of seven or eight officers gathered at the motel: Officer DeHerrera, two DPD detectives, and four or five GPD detectives.^[1] They all wore badges and plain clothes under tactical, ballistic vests with conspicuous lettering that read "POLICE." They also carried firearms that were covered by their clothing.

         ¶5 The group gathered out of sight from Veloz's room, on the south side of the motel parking lot. The plan was for Officer DeHerrera to knock on the door to Veloz's room from the exterior of the building, as the motel rooms are all accessible via outdoor hallways, or "breezeways." As the police were approaching the building, walking toward the breezeway, Ganaway parked his Hyundai about sixty feet in front of them, exited the car, and began walking toward them. The police stopped moving.

         ¶6 Ganaway continued walking toward the group. He was looking down at the ground and not paying attention to his surroundings. When Ganaway was about twenty feet away, Officer DeHerrera asked him where he was going. Ganaway pointed to Veloz's room. He appeared shocked to see the police and began clutching the pockets of his pants and sweatshirt. There seemed to be a large object weighing down his sweatshirt pocket.

         ¶7 Concerned that Ganaway was armed, Detective Foster said to Ganaway (who was still about twenty feet from the group), "I'd like to pat you down for weapons, if that's okay." Ganaway responded, "no problem"; he put his hands out to the side, turned around, and walked backwards toward Detective Foster. No one requested or commanded Ganaway to approach in that manner. The officers remained in place in a line, which Detective Foster stepped out of, though he did not advance toward Ganaway. Ganaway continued walking backwards until Detective Foster said, "That's good," at which point the two of them were about a foot apart from each other.

         ¶8 Preparing to conduct the patdown, Detective Foster visually scanned Ganaway's body. Ganaway's sweatpants pockets were hanging open, and Detective Foster saw a plastic bag protruding out of his pocket; the bag contained semi-translucent crystalline shards of what he suspected to be methamphetamine. Detective Foster proceeded with the patdown, and as he ran his hand over the

pocket containing the plastic bag, he felt a crunch, which based on his experience as a police officer, he identified as consistent with the texture of methamphetamine shards. Ganaway did not possess a weapon on his person. Detective Foster took the plastic bag for evidence and arrested Ganaway. Detective Foster then passed Ganaway to Detective Traudt and other GPD personnel.

         ¶9 Detective Traudt searched Ganaway incident to his arrest, locating a Hyundai key fob. Detective Traudt advised Ganaway of his Miranda rights. Ganaway stated that he understood those rights and wanted to talk. Ganaway explained that he had been previously convicted of drug felonies which resulted in him serving a few years in prison. Detective Traudt asked whether Ganaway had any firearms on him or in his car. Ganaway responded that he had a firearm in his car and that he knew he was not supposed to possess a gun but did so for his personal safety. Detective Gonzalez asked Ganaway if they could search his car, and Ganaway consented. The police subsequently searched the car and discovered the firearm that Ganaway had mentioned.

         ¶10 The People charged Ganaway with unlawful possession of a controlled substance, § 18-18-403.5, C.R.S. (2024), possession of a weapon by a previous offender, § 18-12-108, C.R.S. (2024), and a special offender count, § 18-18-407, C.R.S. (2024). Ganaway moved to suppress his statements and the evidence.

         ¶11 At the suppression hearing, the trial court made factual findings consistent with the testimony of Detectives Foster and Traudt. The court, however, made two additional critical findings of fact, which it used to support its legal conclusions: (1) "the officers surrounded [Ganaway]" in tactical gear and altered his direction of travel when he arrived near Veloz's door; and (2) the officers asked Ganaway to "come with us . . . and describe where you [are] going" when he pointed to Veloz's door.

         ¶12 The court then found that the record "does not support an existence of a consensual encounter." It further found that the officers lacked reasonable articulable suspicion that Ganaway was committing or about to commit a crime. Consequently, it granted Ganaway's motions to suppress. The People filed this interlocutory appeal.^[2]

         II. Analysis

         ¶13 The People argue that (1) Ganaway's initial encounter with the police was not a Fourth Amendment "seizure," and (2) Detective Foster's patdown search was permissible because Ganaway voluntarily consented to it. To resolve these issues, we begin by identifying the applicable standard of review. Next, we

analyze whether either Officer DeHerrera's initial question to Ganaway, or Detective Foster's subsequent patdown, violated Ganaway's Fourth Amendment rights. We hold, based on the totality of the circumstances, that the initial encounter between the police and Ganaway was not a seizure, meaning it did not trigger Fourth Amendment protections. We further hold that Ganaway voluntarily consented to the patdown. Accordingly, we reverse the trial court's suppression order and remand the case for further proceedings consistent with this opinion.

         A. Standard of Review

         ¶14 A trial court's order regarding a motion to suppress presents a "mixed question of fact and law." People v. Dacus, 2024 CO 51, ¶ 23, 559 P.3d 198, 203. We defer to "the trial court's findings of historical fact . . . if they are supported by competent evidence in the record." People v. McDaniel, 160 P.3d 247, 250 (Colo. 2007) (quoting People v. McClain, 149 P.3d 787, 789 (Colo. 2007)). If the trial court's factual findings are "so clearly erroneous as not to find support in the record," they must be set aside. People v. Schrader, 898 P.2d 33, 36 (Colo. 1995) (quoting People v. Johnson, 653 P.2d 737, 740 (Colo. 1982)). Thus, a trial court's ultimate legal conclusion that is "unsupported by evidentiary findings is subject to correction on review." People v. Miranda-Olivas, 41 P.3d 658, 661 (Colo. 2001) (citing People v. Gennings, 808 P.2d 839, 847 (Colo. 1991) (reversing a suppression order because

the trial court's findings were "not adequately supported in the record")). In reviewing a trial court's ruling on a motion to suppress, "we look solely to the record created at the suppression hearing." People v. Thompson, 2021 CO 15, ¶ 16, 500 P.3d 1075, 1078.

         B. Fourth Amendment Seizures

         ¶15 The Fourth Amendment of the Constitution protects citizens from unreasonable searches and seizures. U.S. Const. amend. IV. "When the police 'seize' a citizen, they must comply with those protections. Not every interaction with the police, however, is a seizure." People v. Taylor, 2018 CO 35, ¶ 8, 415 P.3d 821, 824. Arrests and investigatory stops are seizures and therefore implicate the Fourth Amendment. People v. Brown, 2022 CO 11, ¶ 15, 504 P.3d 970, 975. However, "[c]onsensual encounters are not seizures . . . and do not implicate the Fourth Amendment." Taylor, ¶ 8, 415 P.3d at 824 (alteration and omission in original) (quoting People v. Marujo, 192 P.3d 1003, 1006 (Colo. 2008)).

         1. Defining a Seizure

         ¶16 "A consensual encounter is one 'in which no restraint of the liberty of the citizen is implicated, but the voluntary cooperation of the citizen is elicited through non-coercive questioning.'" People v. Walters, 249 P.3d 805, 809 (Colo. 2011) (quoting People v. Johnson, 865 P.2d 836, 842 (Colo. 1994)). A seizure requires "either physical force . . . or, where that is absent, submission to the assertion of

authority." McClain, 149 P.3d at 789-90 (omission in original) (quoting California v. Hodari D., 499 U.S. 621, 626 (1991)).

         ¶17 Ultimately, in deciding whether an encounter with the police is consensual rather than a seizure, courts "must consider whether 'a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'" Marujo, 192 P.3d at 1006 (quoting Florida v. Bostick, 501 U.S. 429, 436 (1991)). "This test presupposes an innocent person." Id. "While most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response." People v. Paynter, 955 P.2d 68, 72 (Colo. 1998) (quoting INS v. Delgado, 466 U.S. 210, 216 (1984)). While the test considers the totality of the circumstances, "[t]he subjective intent of the officer in initiating the encounter is not relevant for Fourth Amendment purposes." Marujo, 192 P.3d at 1006 (citing Whren v. United States, 517 U.S. 806, 813-14 (1996)).

         ¶18 "Police officers do not implicate the protections afforded by the Fourth Amendment by merely asking an individual questions, even when those questions might pertain to criminal conduct." Taylor, ¶ 9, 415 P.3d at 824. If the person being questioned is "free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." Id.

(quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). "While a citizen may feel instinctive pressure to cooperate with police officers, without an additional display of force or authority by the officer, this pressure does not suffice to transform a consensual encounter into a seizure." Marujo, 192 P.3d at 1008. The encounter only escalates to a seizure if the obligation to comply is "greater than the obligation an innocent citizen would normally feel to cooperate with the police." Id. at 1007.

         ¶19 Fourth Amendment reasonableness inquiries are objective and fact specific. Paynter, 955 P.2d at 72-73 (relying on Ohio v. Robinette, 519 U.S. 33, 39 (1996)). In Marujo, we enumerated a nonexclusive list of factors to consider when assessing whether "a reasonable, innocent person would not feel free to decline the officers' requests or otherwise terminate the encounter." 192 P.3d at 1007 (quoting People v. Jackson, 39 P.3d 1174, 1184 (Colo. 2002)). These factors include:

(1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights;

(2) the number of officers present;

(3) whether the officer approaches in a non-threatening manner;

(4) whether the officer displays a weapon;

(5) whether the officer requests or demands information;

(6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled;

(7) whether the officer physically touches the person of the citizen;

(8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter;

(9) the duration of the encounter; and

(10) whether the officer retains the citizen's identification or travel documents.

Id. Rather than rely upon a single factor, the court "must consider the totality of the circumstances to determine whether the police exercised force or authority to effect a stop, or whether the police merely sought the voluntary cooperation of a citizen through a consensual encounter." Paynter, 955 P.2d at 73.

         2. Ganaway's Initial Encounter with Law Enforcement Was Not a Seizure

         ¶20 Before analyzing the Marujo factors, we first note that the trial court made two consequential factual findings unsupported by the record (which consists solely of testimony from Detective Foster and Detective Traudt at the suppression hearing). The first finding was that "the officers surrounded [Ganaway]" in tactical gear and altered his direction of travel when he walked toward the motel. Although both detectives testified to wearing tactical vests with "POLICE" lettering, they did not mention any other "tactical gear," such as helmets or long guns. Additionally, Detective Foster testified that the police were positioned in a line about twenty feet away from Ganaway when the encounter began, and they

remained in that position as Ganaway continued to approach them.^[3] This uncontroverted testimony in no way suggests that the police "surrounded" Ganaway. Nor does it indicate that the police did anything to "alter[]" Ganaway's "direction of travel."

         ¶21 The second trial court finding was that the officers asked Ganaway to "[c]ome with us . . . and describe where you [are] going" when he pointed to Veloz's door. But Detective Foster testified that Officer DeHerrera "greeted [Ganaway] and asked where he was going"; again, this testimony was uncontroverted. Thus, contrary to the court's finding, nothing in the record suggests that the police told Ganaway to "[c]ome with us."

         ¶22 We conclude that these two factual findings lack competent record support and are, therefore, clearly erroneous. Thus, we set them aside for our analysis of the Marujo factors, which we now examine.

         ¶23 (1) Use of sirens or lights: There was no "display of authority or control over [Ganaway] by activating the siren or any patrol car overhead lights." Marujo, 192 P.3d at 1007. Indeed, the police patrol cars were parked out of sight so the police could arrive at Veloz's door undetected.

         ¶24 (2) Number of officers: There were eight officers at the scene. The presence of more than one officer can increase the coerciveness of the interaction. However, "the presence of multiple officers does not automatically mean that a stop has occurred." United States v. Fields, 823 F.3d 20, 28 (1st Cir. 2016) (quoting United States v. Goddard, 491 F.3d 457, 461 (D.C. Cir. 2007)).

         ¶25 (3) Manner of approach: The officers did not approach in a threatening manner. In fact, they did not approach at all, as Ganaway walked casually toward them. Indeed, Ganaway did not notice the police presence until he was about twenty feet away from them because he had been looking down at the ground and not paying attention to his surroundings.

         ¶26 (4) Display of weapons: Each officer carried a concealed firearm. However, the mere presence of firearms does not indicate that the police approached in a threatening manner. Paynter, 955 P.2d at 73 (describing an officer's approach as nonthreatening when his gun was not displayed); Marujo, 192 P.3d at 1008 (finding a consensual encounter when the officer did not draw a weapon). Here, the firearms were concealed and not drawn at any point during the encounter. ¶27 (5) Request or demand for information: Officer DeHerrera did not demand any information from Ganaway. Instead, Officer DeHerrera simply asked a question-where was he going. Questioning does not result in a seizure "[u]nless the circumstances of the encounter are so intimidating as to demonstrate that a

reasonable person would believe he is not free to leave."^[4] Paynter, 955 P.2d at 72; see, e.g., State v. Ballinger, 366 P.3d 668, 672 (Mont. 2016) (finding that no seizure occurred when an officer "intercepted" a couple walking toward a house that he was investigating by asking them where they were going).

         ¶28 (6) Officers' tone of voice: A tone "indicating that compliance with the officer's request might be compelled" may indicate a seizure. Mendenhall, 446 U.S. at 554. But here, the officers' tone was friendly, not threatening.

         ¶29 (7) Physical contact: At this point, no one had physically touched Ganaway, as he was about twenty feet away.

         ¶30 (8) Show of authority: A seizure does not occur unless a reasonable person "would have perceived that the show of authority was at least partly directed at him." Brendlin v. California, 551 U.S. 249, 261 (2007); see also Tate v. People, 2012 CO 75, ¶¶ 7-9, 290 P.3d 1268, 1269-70; Lundstrom v. Romero, 616 F.3d 1108, 1122 (10th Cir. 2010) (finding that the police had not seized a woman who stepped between her boyfriend and an officer's pointed gun); United States v. Al Nasser, 555 F.3d 722, 730-31 (9th Cir. 2009) (finding that the police had not seized a motorist who pulled

over upon seeing a traffic stop of other motorists). Here, the officers did not approach Ganaway-they were moving toward Veloz's motel room when Ganaway walked into their presence. A reasonable person in Ganaway's position would have understood that police activity was afoot, but he would not have perceived the officers' conduct to be directed at him.

         ¶31 True, the police's tactical vests displaying "POLICE" indicate authority. However, an encounter does not become a seizure because of the "inherent social pressure to cooperate with the police" or because "the police do not inform the individual that he or she is free to leave." People v. Melton, 910 P.2d 672, 676-77 (Colo. 1996) (citing Delgado, 466 U.S. at 216). Yet, a defendant may be considered seized when they cannot walk away from or around the officers. See Brown, ¶¶ 20-22, 504 P.3d at 976-77 (discussing a nonconsensual encounter where patrol vehicles blocked a defendant from exiting the parking lot in his vehicle); but cf. Taylor, ¶ 12, 415 P.3d at 825 (finding that there was no seizure at the initial encounter because there were "multiple avenues" for the defendant to walk away from or around the officer); see also People v. Shoen, 2017 CO 65, ¶ 13, 395 P.3d 327, 331 (assessing officers leaving exit paths open to the defendant as a factor indicative of a consensual encounter).

         ¶32 Here, the police never ordered Ganaway to say or do anything. The officers were facing Ganaway in a line as he approached them. Unlike in Brown, ¶ 21,

504 P.3d at 976, where we noted that a patrol car physically blocking the defendant's car from moving is indicative of a nonconsensual encounter, there is no record of personnel or patrol vehicles on either side of or behind Ganaway. Instead, there was an unobstructed path for him to return to his car and exit the motel parking lot.^[5] Like in Taylor, ¶ 12, 415 P.3d at 825, where there were many avenues to evade the officer, there was nothing preventing Ganaway from terminating the interaction with the police, as he could have turned around and exited the motel parking lot by car or by foot.^[6] Further, the nature of the police presence was such that Ganaway did not notice them until he was about twenty feet away from them and Officer DeHerrera asked a question. Thus, the police did not display force or authority toward Ganaway that impeded his ability to terminate the encounter.

         ¶33 (9) Duration of the encounter: The record does not establish the precise length of Officer DeHerrera's interaction with Ganaway. However, it was

apparently brief since Officer DeHerrera only asked one question, and Ganaway simply pointed at Veloz's motel room in response.

         ¶34 (10) Retention of identification: The police did not retain Ganaway's identification, as they had not obtained it in the first place.

         ¶35 In sum, although eight armed police officers wearing tactical vests were twenty feet away from Ganaway, they never threatened Ganaway nor displayed their weapons; they did not demand information or compliance; and they did not touch or surround him or otherwise exert their control. They simply asked him one neutral question in a friendly tone, during a brief interaction. Ganaway's personal reaction to the police's presence is immaterial because the test of "whether 'a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter' . . . presupposes an innocent person." Marujo, 192 P.3d at 1006 (quoting Bostick, 501 U.S. at 436). Thus, we hold, based on the totality of the circumstances, that the initial encounter between the police and Ganaway was not a seizure, meaning it did not trigger Fourth Amendment protections.

         C. Consent to Search

         ¶36 We next consider whether Ganaway voluntarily consented to a patdown in response to Detective Foster's statement, "I'd like to pat you down for weapons, if

that's okay." We first analyze whether Ganaway's actions indicated consent. Next, we determine whether that consent was voluntary.

         1. Defining Consent

         ¶37 Under the Fourth Amendment, "[a] warrantless search may be justified and is constitutionally permissible when a citizen consents to the search." People v. Mendoza-Balderama, 981 P.2d 150, 156 (Colo. 1999). Consent can be express or "implied through words, actions, or both." People v. Berdahl, 2019 CO 29, ¶ 22, 440 P.3d 437, 442; see, e.g., Johnson, 865 P.2d at 845 (using the defendant's actions as evidence of voluntary consent when no law enforcement officers instructed him to act in the manner that he did).

         ¶38 Voluntary consent requires "essentially free and unconstrained choice by its maker." Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973). Involuntary consent is invalid. Id. at 233 (describing involuntary consent as "coerced by threats or force, or granted only in submission to a claim of lawful authority"). "[T]he Fourth and Fourteenth Amendments require that . . . consent not be coerced, by explicit or implicit means, by implied threat or covert force." Id. at 228. Promises or threats can indicate coercive behavior. Johnson, 865 P.2d at 845.

         ¶39 To determine whether consent was voluntary, "courts must apply an objective test that takes into account the totality of the circumstances and determines whether the defendant could reasonably have construed the police

conduct to be coercive." Berdahl, ¶ 23, 440 P.3d at 442. The test is "whether, under the totality of the circumstances, the police's conduct overbore the defendant's exercise of free will because it was sufficiently coercive or deceptive to a person with his characteristics in his circumstances." People v. Munoz-Gutierrez, 2015 CO 9, ¶ 24, 342 P.3d 439, 445. To assess the totality of the circumstances, courts evaluate: "the defendant's age, education, 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." Berdahl, ¶ 23, 440 P.3d at 442. While we consider whether a person knew they had a choice, "consent can be voluntary even if the defendant did not know that he or she was free to withhold consent." Id. (first citing Schneckloth, 412 U.S. at 227; and then citing People v. Chavez-Barragan, 2016 CO 66, ¶ 38, 379 P.3d 330, 339).

         2. Ganaway Voluntarily Consented to a Patdown

         ¶40 First, we review Ganaway's conduct during the encounter with Detective Foster. Detective Foster said, "I'd like to pat you down for weapons, if that's okay," to which Ganaway responded, "[N]o problem." Then, unprompted, Ganaway "put his hands out to the side . . . [and] turned around and backed up

towards [Detective Foster]."^[7] After Ganaway began his approach, Detective Foster stepped out of line with the officers and waited for Ganaway to reach him. There was no verbal exchange during Ganaway's approach. Once Ganaway was about a foot away, Detective Foster said, "That's good."

         ¶41 We conclude that these facts are sufficient to establish that Ganaway consented to being searched by the police. Ganaway's reply of "no problem" served as express verbal consent; his subsequent walk toward Detective Foster, which was not directed by the police, impliedly reinforced this consent.

         ¶42 Second, we consider whether Ganaway's consent was voluntary. We note that the police did not make any promises or threats to Ganaway. On the contrary, the interaction had a friendly tone. Further, Detective Foster's permissive phrasing-" Id. like to pat you down for weapons, if that's okay"-evinces a request rather than an authoritative command. See People v. Thomas, 839 P.2d 1174, 1176-78 (Colo. 1992) (concluding that the defendant's consent was voluntary where the officer asked "if it was okay to pat him down"); see also Marujo, 192 P.3d at 1005, 1008 (concluding that the defendant's consent was voluntary where the officer asked, "[W]ould you mind stepping over here? . . . Would you mind if I patted you down to check for weapons?"); United States v. Drayton, 536 U.S. 194, 206-07 (2002)

(interpreting "Mind if I check you?" as a request for consent). Thus, to the extent that Ganaway may have felt Detective Foster's request to pat him down was a demand, the police's conduct did not cause that perception.

         ¶43 Nor does the record otherwise indicate that Ganaway's consent could have been the product of duress, coercion, deception, or undue influence. The encounter was brief, consisting of two succinct questions.

         ¶44 Moreover, there is no evidence in the record that Ganaway's age, education, intelligence, or state of mind prevented him from voluntarily consenting. True, Ganaway did have prior contact with law enforcement, but such experience does not transform a request into a command. Further, while Detective Foster did not expressly advise Ganaway of his right to refuse consent, that does not render Ganaway's consent involuntary. Accordingly, from the perspective of a reasonable person in Ganaway's position, the police's conduct did not overbear Ganaway's exercise of free will.

         ¶45 For these reasons, we hold that Ganaway voluntarily consented to the patdown.

         III. Conclusion

         ¶46 For the foregoing reasons, we reverse the trial court's suppression order and remand the case for further proceedings consistent with this opinion.

          JUSTICE BERKENKOTTER, joined by JUSTICE GABRIEL, dissented.

          JUSTICE BERKENKOTTER, joined by JUSTICE GABRIEL, dissenting.

         ¶47 Oscar Jonas Ganaway was walking from his car to room 145 of the HomeTowne Studios motel when he heard someone ask where he was going. He looked up and was shocked to see eight officers, barely twenty feet away, wearing identical tactical vests conspicuously labeled "POLICE." They were standing in a single line against the motel's outer wall roughly six to ten feet from Ganaway's intended destination. No one else was around, and it appeared that the officers, one of whom immediately asked to pat him down, were engaged in some type of tactical operation. The majority concludes that a reasonable person in Ganaway's position would have believed that they were free to decline the patdown request and continue on. I disagree, and thus I respectfully dissent.

         ¶48 In reversing the district court's suppression ruling, the majority concludes that (1) the "initial" encounter between the police and Ganaway was not a seizure and (2) Ganaway voluntarily consented to the patdown search. I believe that by treating the encounter as consisting of two distinct parts, the majority fails to adequately consider the totality of the circumstances surrounding the encounter. People v. Jackson, 39 P.3d 1174, 1182 (Colo. 2002), abrogated on other grounds by Brendlin v. California, 551 U.S. 249 (2007). I also disagree with the majority's conclusions that the encounter between Ganaway and the eight officers was

consensual and that the district court erred in granting Ganaway's motion to suppress the evidence seized.

         ¶49 Because the officers lacked reasonable suspicion to seize Ganaway, I would affirm the district court's suppression order.

         I. Legal Authority

         ¶50 The Fourth Amendment of the United States Constitution protects citizens from unreasonable government searches and seizures. U.S. Const. amend. IV. The law recognizes three categories of police-citizen encounters: (1) arrests, (2) investigatory stops, and (3) consensual interviews. People v. Paynter, 955 P.2d 68, 72 (Colo. 1998). Because arrests and investigatory stops are seizures, they implicate the Fourth Amendment. People v. Morales, 935 P.2d 936, 939 (Colo. 1997). They must therefore be justified by probable cause and reasonable suspicion, respectively. Jackson, 39 P.3d at 1179.

         ¶51 Consensual encounters, in contrast, are "requests for cooperation" that do not implicate the Fourth Amendment. Id.; see also Florida v. Bostick, 501 U.S. 429, 434 (1991) (stating that an "encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature"). "Thus, the boundary between consensual encounters and investigatory stops is crucial because it defines where the protection of the Fourth Amendment begins." Jackson, 39 P.3d at 1179.

         ¶52 To determine whether an encounter is consensual, "the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Bostick, 501 U.S. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)). The test "is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Chesternut, 486 U.S. at 573.

         ¶53 "The message that a suspect is not free to leave or terminate the inquiry can be conveyed, not necessarily intentionally, in ways less obvious than actual physical force or explicit command." Jones v. United States, 154 A.3d 591, 595 (D.C. 2017). Consequently, this analysis "requires an examination of the behavior of the parties, as well as the physical, temporal, and social context of the encounter." Outlaw v. People, 17 P.3d 150, 156 (Colo. 2001). It also employs an objective standard, "looking to the reasonable [person's] interpretation of the conduct in question." Chesternut, 486 U.S. at 574. Because the test focuses on what a reasonable person would understand, "the subjective intent of the officers is relevant . . . only to the extent that that intent has been conveyed to the person confronted." Id. at 575 n.7.

         II. Analysis

         A. This Was a Single Encounter

         ¶54 The majority analyzes the encounter between Ganaway and the police as if it consisted of two distinct encounters. It concludes that the "initial encounter," when the police first stopped Ganaway to ask where he was going, was not a seizure. Maj. op. ¶ 35. It then separately considers whether Ganaway voluntarily consented to be patted down for weapons. This approach, in my view, is at odds with our long-standing jurisprudence requiring us to examine the totality of the circumstances a person faces when interacting with the police. See, e.g., People v. Marujo, 192 P.3d 1003, 1004, 1007-08 (Colo. 2008) (treating the initial stop of a suspect and the officer's patdown request as a single encounter for purposes of determining whether the encounter was consensual).

         ¶55 By bifurcating the event and also its analysis in this manner, the majority disregards the rest of the encounter between Ganaway and the officers in evaluating whether this short but charged encounter was consensual. Notably, the majority excludes from its consideration the circumstances surrounding Detective Foster's "request" to pat Ganaway down immediately after they stopped him a mere ten feet from his intended destination.

         ¶56 In my view, this was a single encounter in which Ganaway was stopped and searched by the police without reasonable suspicion because he was in the wrong place at the wrong time. This was a seizure.

         B. The Totality of the Circumstances Surrounding the Encounter Indicates a Seizure

         ¶57 We have identified several factors to aid in determining whether "a reasonable, innocent person would not feel free to decline the officers' requests or otherwise terminate the encounter." Marujo, 192 P.3d at 1007 (quoting Jackson, 39 P.3d at 1184). These factors are neither exhaustive nor exclusive. Id. "Words and actions can reasonably be perceived differently depending on the surroundings, which provide important context." Dozier v. United States, 220 A.3d 933, 947 (D.C. 2019). This is one of the reasons why we have repeatedly emphasized that the "totality of the circumstances analysis requires an examination of the behavior of the parties, as well as the physical, temporal, and social context of the encounter." Outlaw, 17 P.3d at 156; see also Chesternut, 486 U.S. at 573 (stating that what constitutes a seizure "will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs").

         ¶58 Sometimes, the circumstances surrounding a person's encounter with the police "are so intimidating as to demonstrate that a reasonable, innocent person would not feel free to decline the officers' requests or otherwise terminate the

encounter." Jackson, 39 P.3d at 1183-84 (setting forth a number of non-exhaustive factors pertinent to a totality of the circumstances analysis); see also People v. Heilman, 52 P.3d 224, 228-29 (Colo. 2002) (finding that "the officer was not seeking [the defendant's] cooperation and he was not free to leave"). For instance, the Supreme Court has emphasized that the "threatening presence of several officers" can indicate a seizure. United States v. Mendenhall, 446 U.S. 544, 554 (1980). This court has similarly identified factors relevant to determining whether a person has been seized, including "the number of officers present . . . [and] whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter." Marujo, 192 P.3d at 1007 (quoting Jackson, 39 P.3d at 1184). In some instances, "the 'strong presence of two or three factors' may be sufficient to support the conclusion a seizure occurred." United States v. Lopez, 443 F.3d 1280, 1284-85 (10th Cir. 2006) (quoting Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1203 (10th Cir. 2006)).

         ¶59 In weighing the Marujo factors, the majority acknowledges that the presence of more than one officer can increase the coerciveness of an interaction. Maj. op. ¶ 24. However, that was not the case here-according to the majority-because, it suggests, the presence of eight officers dressed in tactical gear was so unobtrusive that Ganaway did not even notice them. Id. at ¶ 32. And because the majority also determines that none of the other factors weigh in favor of finding a

seizure, it concludes that the encounter was consensual, meaning it did not trigger Fourth Amendment protections. Id. at ¶ 35.

         ¶60 I see the encounter very differently.

         ¶61 To begin, there was nothing unobtrusive about the police presence. The sudden appearance of eight officers in tactical gear is drastically different from an encounter with one or two officers. In numerous other cases, the presence of large numbers of officers have supported the conclusion that a defendant was seized. For instance, in United States v. Ward, 961 F.2d 1526, 1533 (10th Cir. 1992), the Tenth Circuit noted that being "outnumbered by at least two officers" "support[ed] the conclusion that [the] defendant was seized" because "the presence of more than one officer increases the coerciveness of an encounter." See also United States v. Bloom, 975 F.2d 1447, 1454 (10th Cir. 1992) (concluding that the presence of multiple officers increased the coerciveness of the encounter because the defendant was "outnumbered, and he knew it"); United States v. Glass, 128 F.3d 1398, 1406 (10th Cir. 1997) (stating that the Tenth Circuit has "considered it significant [when] . . . more than one officer confronted the subject"); United States v. Anderson, 663 F.2d 934, 939-40 (9th Cir. 1981) (holding that the encounter was "clearly a 'seizure'" when the individual was confronted by "five DEA agents, one LAPD officer, plus four uniformed Orange County deputy sheriffs").

         ¶62 The majority downplays the number of officers present, suggesting that the eight police officers were so unobtrusive that "Ganaway did not notice them until he was about twenty feet away from them." Maj. op. ¶ 32. True, Ganaway did not notice the officers until they stopped him, but that is because the officers went to great lengths to avoid being detected. Why? Because the officers' intended destination was also room 145. They were there to arrest Anthony Veloz, who, Detective Foster explained, had "a high propensity to arm [himself] with handguns." Veloz's associates did as well, according to the Detective, and so the officers were concerned for their safety.

         ¶63 This is why, in the Detective's words, the eight officers were "creep[ing]" up the side of the motel in a row. This is also why the officers stopped in their tracks some six to ten feet from Veloz's motel room when they saw Ganaway park twenty yards away, exit his car, and walk-head down-towards Veloz's room. And, finally, this is why-even though they lacked reasonable suspicion to stop him-the officers nonetheless stopped Ganaway and then immediately searched him just before he got to Veloz's room. The officers didn't know whether Ganaway saw them, and as Detective Foster testified, they wanted to make sure he didn't alert Veloz "that law enforcement was, essentially, stacking up on his front door."

         ¶64 Detective Foster's testimony indicates that Ganaway was not free to continue his day until the officers' tactical operation-the arrest of Veloz-was completed. As the majority explains, an individual is seized if they do not "feel free to decline the officers' requests or otherwise terminate the encounter." Maj. op. ¶ 17 (quoting Marujo, 192 P.3d at 1006). And like any reasonable person under these circumstances, Ganaway did not feel free to decline the officer's request or terminate the encounter. This was a seizure.

         ¶65 Of course, the officers' subjective intent-whether they intended to seize Ganaway-is not relevant unless they communicated that intent to him. Chesternut, 486 U.S. at 575 n.7. But here, the number, location, and behavior of the officers communicated volumes. Outlaw, 17 P.3d at 156. And so did Ganaway's behavior. We need only look to his responses to the stop (his jaw literally dropped) and to the "request" that he submit to a patdown search immediately thereafter. He moved to the officers without, apparently, being asked to do so: first, sticking his arms out like a scarecrow, then looking over his shoulder, and slowly walking backwards until he reached the officers. His was not the behavior of someone who felt free to deny the officer's request and continue on his way.

         ¶66 Another factor that weighs in favor of finding that Ganaway was seized is the physical appearance of the eight officers. United States v. Black, 707 F.3d 531, 538 (4th Cir. 2013) (concluding that the defendant was seized because of the

"collective show of authority by the [seven] uniformed police officers"). As Detective Foster testified, all eight officers were dressed in "ballistic vests that had very large . . . conspicuous police markings." And while the officers here did not brandish their weapons, a reasonable person would not necessarily believe that eight police officers outfitted in tactical vests conspicuously labeled "POLICE" were unarmed. See Ward, 961 F.2d at 1533 n.6 (relying on United States v. Grant, 920 F.2d 376, 382 (6th Cir. 1990)).

         ¶67 I consider, as well, the fact that Ganaway was stopped when no other people were around. "When confronted by authorities in . . . a public place, a reasonable person is less likely to feel that he is unable to decline the agent's request or otherwise terminate the encounter." United States v. Zapata, 997 F.2d 751, 757 (10th Cir. 1993); see also Ward, 961 F.2d at 1532 (stating that "in a public setting . . . the reasonable innocent person is less likely to feel singled out as the officers' specific target"). But police-citizen interactions that occur in public places in the absence of other members of the public can be viewed as a factor pointing toward a nonconsensual encounter. United States v. Hernandez, 847 F.3d 1257, 1265 (10th Cir. 2017). Thus, the fact that Ganaway was stopped by eight officers in tactical vests and immediately searched when no one else was around, in my view, favors finding a seizure.

         ¶68 Certainly, there are some factors that I regard as neutral or favoring a consensual encounter. These include the officers' tone of voice and lack of physical contact. On balance, however, the totality of the circumstances here weighs heavily in favor of finding a seizure. The intimidating nature of the encounter was compounded by the speed at which it unfolded. Ganaway was alone, the eight officers were trying to remain out of sight, he did not see them until they stopped him, and then they immediately searched him to prevent him from reaching his intended destination, which happened to be the officers' intended destination as well. See Jones, 154 A.3d at 596 (concluding that the "circumstances are more intimidating if the person is by himself, if more than one officer is present, or if the encounter occurs in a location that is secluded or out of public sight"). Even if Ganaway could, in theory, have walked by the officers, "the greater number of officers and their positioning created an intimidating environment that psychologically, if not physically, 'substantially reduced' the ease with which [he] could have avoided the police." Dozier, 220 A.3d at 945-46 (quoting Jones, 154 A.3d at 597). That is, the officers exercised their authority in a manner which made it apparent to Ganaway that he was not free to ignore them and proceed on his way.

         III. Conclusion

         ¶69 Because the officers seized Ganaway without reasonable suspicion to do so, I would affirm the district court's suppression order.

---------

Notes:

^[1] The record is unclear as to whether there were seven or eight officers present. For the purposes of this opinion, we assume that there were eight.

^[2] The People properly certified this appeal "is not taken for the purpose of delay" and "the evidence is a substantial part of the proof of the charge pending against the defendant," pursuant to section 16-12-102(2), C.R.S. (2024).

^[3] Detective Foster testified when discussing the subsequent patdown, "[W]e were, kind of, in like a line, and I stepped out to my right and just waited for [Ganaway] to back up to me."

^[4] Additionally, the subjective suspicions of the police and why they ask a question are irrelevant to the seizure analysis unless the "officer's subjective intent in approaching the individual is communicated to that individual." People v. Melton, 910 P.2d 672, 677 (Colo. 1996) (citing Mendenhall, 446 U.S. at 554 n.6). In this case, the police did not communicate their reasons for engaging Ganaway to him.

^[5] The suppression hearing testimony explains that all the patrol cars were parked south of the officers. The exit to the parking lot was north of Ganaway and his vehicle.

^[6] Though the exit path here was perfectly clear, it need not be for the encounter to be consensual. See People v. Cascio, 932 P.2d 1381, 1387-88 (Colo. 1997) (finding a consensual encounter when the defendants would have needed to maneuver their car in a manner similar to parallel parking in order to exit).

^[7] The officers did not request that Ganaway approach in this manner. Additionally, Detective Foster testified that having someone put their arms out to the side for a patdown is not his normal practice.

---------