Directed Show of Authority, Not Mere Presence, Triggers a Seizure: People v. Ganaway (Colo. 2025)

Introduction

In People v. Ganaway, 2025 CO 25 (Colo. May 27, 2025), the Colorado Supreme Court reversed a district court’s suppression order and clarified two recurring Fourth Amendment questions: when a police-citizen encounter becomes a “seizure,” and what constitutes voluntary consent to a patdown in the midst of a multi-officer operation.

Denver Police Department detectives and a Glendale Police Department team (seven or eight officers in all) assembled at a motel to arrest a third party, Anthony Veloz. As the officers approached the exterior breezeway to execute the warrant, Oscar Jonas Ganaway parked nearby and walked toward them. An officer asked where he was going; Ganaway pointed to Veloz’s room. A detective then asked, “I’d like to pat you down for weapons, if that’s okay.” Ganaway replied, “No problem,” extended his arms, turned around, and walked backward toward the detective. During the patdown, officers discovered methamphetamine and later, following Miranda advisement and consent, a firearm in Ganaway’s car.

The trial court suppressed the physical evidence and statements, ruling that the interaction transformed into a nonconsensual seizure without reasonable suspicion, and that any ensuing consent was tainted. The People brought an interlocutory appeal under section 16-12-102(2), C.R.S. (2024), and C.A.R. 4.1. In a majority opinion by Justice Boatright (Chief Justice Márquez, and Justices Hood, Hart, and Samour joining), the court reversed. Justice Berkenkotter, joined by Justice Gabriel, dissented.

Summary of the Opinion

Seizure: The initial engagement—officers asking Ganaway where he was going—was not a Fourth Amendment seizure. Under the totality of the circumstances and applying the factors from People v. Marujo, the court emphasized there were no sirens or lights, weapons were concealed, the tone was friendly, the officers stood in place and did not surround, command, or touch Ganaway, and there was a clear path for him to leave. Crucially, any “show of authority” was not directed at Ganaway personally.
Trial court fact-finding: The majority set aside two “clearly erroneous” factual findings: that officers “surrounded” Ganaway and “asked him to come with us,” noting those conclusions lacked support in the suppression-hearing record.
Consent to patdown: Ganaway’s response (“no problem”) and unprompted conduct (turning, extending arms, and backing toward the detective) constituted express and implied consent. The consent was voluntary: no promises, threats, deception, or coercive tone; the detective used permissive phrasing (“if that’s okay”); and no evidence showed Ganaway’s personal characteristics undermined his free choice.
Disposition: Suppression order reversed and case remanded.

The dissent viewed the encounter as a single, coercive event: eight officers in tactical vests, “stacked” near a target room in a secluded breezeway, stopping and immediately seeking to pat down a passerby only steps from that door. On this view, a reasonable person would not have felt free to decline or leave; lacking reasonable suspicion, the search violated the Fourth Amendment, and suppression should be affirmed.

Analysis

Precedents Cited and Their Influence

Fourth Amendment tiers and “consensual encounters”: The majority reaffirms that not all police-citizen interactions are seizures. Citing People v. Taylor, 2018 CO 35, and People v. Marujo, 192 P.3d 1003 (Colo. 2008), the court underscores that questioning alone—even about potential criminal matters—does not implicate the Fourth Amendment if a reasonable person would feel free to decline or terminate the encounter. Florida v. Bostick, 501 U.S. 429 (1991), and INS v. Delgado, 466 U.S. 210 (1984), ground this principle at the federal level.
Seizure definition: Drawing on California v. Hodari D., 499 U.S. 621 (1991), and People v. McClain, 149 P.3d 787 (Colo. 2007), the court reiterates that a seizure requires either physical force or submission to an officer’s assertion of authority.
“Directed” show of authority: The opinion relies on Brendlin v. California, 551 U.S. 249 (2007), to emphasize that a reasonable person must perceive that any show of authority is directed at them. Supporting decisions, such as Tate v. People, 2012 CO 75, Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010), and United States v. Al Nasser, 555 F.3d 722 (9th Cir. 2009), illustrate contexts where police actions aimed at others do not necessarily seize nearby individuals.
Pathways to leave: People v. Brown, 2022 CO 11 (blocking a vehicle with patrol cars indicates a nonconsensual stop) is contrasted with Taylor (multiple avenues to walk away supports a consensual encounter), and People v. Shoen, 2017 CO 65 (leaving exit paths open weighs in favor of consent). The majority finds this case more like Taylor/Shoen: Ganaway had an unobstructed route back to his car and out of the lot.
Voluntary consent: Schneckloth v. Bustamonte, 412 U.S. 218 (1973), establishes the totality test for voluntariness; a person need not be told they can refuse. Colorado decisions—People v. Berdahl, 2019 CO 29; People v. Munoz-Gutierrez, 2015 CO 9; People v. Chavez-Barragan, 2016 CO 66; People v. Mendoza-Balderama, 981 P.2d 150 (Colo. 1999); and People v. Thomas, 839 P.2d 1174 (Colo. 1992)—reinforce that consent may be express or implied and that permissive phrasing (“if that’s okay,” “mind if I…”) supports voluntariness. United States v. Drayton, 536 U.S. 194 (2002), similarly treats “mind if I check you?” as a request rather than a command.
Standard of review and record fidelity: People v. Dacus, 2024 CO 51; People v. McDaniel, 160 P.3d 247 (Colo. 2007); People v. Schrader, 898 P.2d 33 (Colo. 1995); People v. Miranda-Olivas, 41 P.3d 658 (Colo. 2001); and People v. Thompson, 2021 CO 15, highlight that appellate courts defer to supported factual findings but must set aside findings that are clearly erroneous or lack record support and that review is confined to the suppression hearing record.
Multiple-officer presence: United States v. Fields, 823 F.3d 20 (1st Cir. 2016), and United States v. Goddard, 491 F.3d 457 (D.C. Cir. 2007), are cited to show that a multi-officer presence does not automatically transform an encounter into a seizure. The dissent marshals contrary weight, emphasizing cases like United States v. Ward, 961 F.2d 1526 (10th Cir. 1992), and United States v. Black, 707 F.3d 531 (4th Cir. 2013), where numbers and formation created coercion.

Legal Reasoning

The majority’s analysis proceeds in three steps: (1) correct the trial court’s unsupported factual findings; (2) apply the totality-of-circumstances test to determine whether a seizure occurred; and (3) assess consent and voluntariness.

Correcting factual errors under clear-error review. The trial court found that officers “surrounded” Ganaway and told him to “come with us,” findings the record did not support. The uncontroverted testimony—officers stood in a line and remained in place while Ganaway approached; no one commanded him to come over—compelled the majority to set aside those findings as clearly erroneous. This reframed the encounter as non-confining and non-commanding from the outset, which proved dispositive in the seizure analysis.
No seizure under Marujo’s totality framework. The Marujo factors largely cut against finding a seizure:
- No sirens, overhead lights, or drawn weapons; firearms remained concealed.
- Officers did not approach or surround; rather, Ganaway approached the officers.
- Questioning was limited to a single, neutral inquiry—“Where are you going?”—in a friendly tone, with no demand, accusation, or retention of identification.
- No physical touch occurred before the consent; the period was brief.
- Most critically, there was an unobstructed path back to Ganaway’s vehicle and out of the lot. Thus, a reasonable person would have felt free to disengage and leave, making the interaction consensual.
- Any “show of authority” (tactical vests marked POLICE and the planned arrest at Room 145) was not directed at Ganaway, aligning with Brendlin’s directed-authority requirement.
While eight officers can heighten coerciveness, the court emphasized that numbers alone do not dictate the outcome; what matters is whether their conduct communicates compulsion or impedes the person’s exit. Here it did not.
Voluntary consent to the patdown. The detective asked, “I’d like to pat you down for weapons, if that’s okay.” Ganaway said “no problem,” extended his arms, turned, and backed toward the detective—conduct the court treated as express consent reinforced by implied consent through actions. Assessing voluntariness under Schneckloth and Berdahl, the court found no threats, promises, coercive tone, or deception; the phrasing signaled a request, not a command; and nothing about Ganaway’s characteristics undermined his free will. Knowledge of the right to refuse, while relevant, is not required. The court therefore held the patdown lawful.

The Dissent’s Countervailing View

The dissent framed the event as a single, continuous encounter in a charged environment: eight officers, uniform tactical vests labeled POLICE, a secluded breezeway, and the officers “stacked” within feet of the very door Ganaway was approaching. It emphasized:

The “threatening presence of several officers” (Mendenhall) and isolated public context (Hernandez) can render a reasonable person not free to leave.
The officers’ formation, purpose (to arrest a potentially armed suspect), and timing (requesting a patdown as Ganaway neared Room 145) communicated that Ganaway was not at liberty to go about his business (Chesternut; Bostick).
Ganaway’s body language—jaw dropping, arms extended, backing toward officers—evidenced submission to authority rather than free consent.

On this framing, because the officers lacked reasonable suspicion to stop Ganaway, the fruits of the patdown were properly suppressed.

Impact

Ganaway is likely to influence both police practices and suppression litigation in Colorado in several concrete ways:

Directed authority requirement sharpened. The case underscores that a seizure hinges not on how many officers are present or whether they are wearing tactical vests, but on whether their conduct, objectively viewed, directs a show of authority at the person and curtails the person’s freedom to leave. Expect increased reliance on Brendlin’s “directed at him” analysis in close cases.
Open pathways and conversational tone matter. The court’s repeated emphasis on unobstructed exit routes, the absence of commands, and friendly tone provides a practical blueprint for law enforcement to structure consensual encounters even during tactical operations:
- Maintain open egress and avoid blocking with bodies or vehicles (contrast Brown).
- Use permissive phrasing (“if that’s okay,” “mind if I…”) and avoid directives.
- Keep weapons holstered and concealed; avoid touching until consent is clear.
- Limit preliminary questioning in scope and duration.
Consent doctrine reinforced in multi-officer settings. The decision confirms that consent can be valid in the presence of numerous officers, provided there is no coercion, deception, or show of authority directed at the individual. Defense challenges will likely need to focus on evidence of blocking, commands, accusatory tone, retention of identification, or other coercive indicators.
Trial courts cautioned on record fidelity. By setting aside two unsupported factual findings, the court signals that suppression rulings must hew closely to the suppression-hearing record. Appellate courts will correct findings that overstate coercive facts (e.g., “surrounded,” “come with us”) absent evidentiary support.
Boundary maintenance in Terry-stop jurisprudence. Ganaway nudges the line between consensual encounters and investigatory stops toward the former where police use nonthreatening, minimally intrusive practices, even in tactical contexts. The dissent, however, may invite litigants to argue that certain formations, numbers, and secluded settings can, as a whole, be coercive despite the absence of overt commands.
Unreached alternative theories. The majority did not address “plain view” or “plain feel” as independent justifications (though the detective testified to seeing a plastic bag with crystalline shards and then feeling a “crunch” consistent with meth). Future cases may litigate those doctrines where consent is disputed.

Complex Concepts Simplified

Consensual encounter vs. seizure. A consensual encounter is a voluntary interaction in which a person feels free to decline or walk away. A seizure occurs when an officer uses physical force or the person submits to an officer’s show of authority directed at them.
“Directed show of authority.” Police uniforms or presence alone don’t create a seizure. A seizure requires that, objectively, the police conduct communicate to the individual that they must comply—e.g., commands, blocking exits, activation of lights/sirens, physical touching, accusatory or commanding tone—aimed at that person.
Voluntary consent. Consent can be given by words or by conduct (or both). It is voluntary if a reasonable person in the suspect’s circumstances would not view the officers’ behavior as coercive or deceptive; knowledge of the right to refuse is relevant but not required.
Standard of review (suppression rulings). Appellate courts defer to trial courts’ factual findings when supported by competent evidence, but set aside findings that are clearly erroneous or lack record support. Legal conclusions are reviewed de novo.

Conclusion

People v. Ganaway clarifies that, in Colorado, the line between consensual encounters and seizures is drawn by directed displays of authority and actual constraints on freedom, not by the mere presence of multiple, tactically equipped officers. Applying Marujo’s totality framework, the court held that an unobtrusive, non-commanding, and brief inquiry—without blocking, weapon display, or physical contact—remained consensual. It further held that a succinct, permissively phrased request followed by the citizen’s “no problem” and cooperative body language constitutes voluntary consent to a patdown.

The dissent’s contrary view underscores that context matters, especially where numbers, formation, and a secluded setting may inherently convey compulsion. The divide reveals a fault line for future litigation: whether and when a multi-officer tactical posture, without overt commands, still communicates that refusal is not an option.

Ultimately, Ganaway both refines Colorado’s seizure analysis—emphasizing the necessity of a show of authority directed at the person—and supplies practical guidance for consent searches in dynamic, multi-officer operations. For trial courts, it is also a reminder to ground suppression findings strictly in the suppression-hearing record.