People v. Ganaway: Multi‑Officer Tactical Presence Does Not Automatically Create a Seizure; Voluntary Pat‑Down Consent Valid Under the Totality of the Circumstances

Introduction

In People v. Ganaway, 2025 CO 25, 568 P.3d 780 (Colo. 2025), the Colorado Supreme Court addressed whether an encounter with eight plain‑clothes officers in tactical vests at a motel amounted to a Fourth Amendment “seizure” and whether the defendant’s consent to a pat‑down search was voluntary. Police were at the Glendale motel to arrest a third party, Anthony Veloz. As Oscar Jonas Ganaway walked toward Veloz’s room, an officer asked where he was going; 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 backed toward the detective. During the pat‑down, officers observed and felt methamphetamine in Ganaway’s pocket, arrested him, Mirandized him, and—after he admitted a firearm was in his car—searched the vehicle upon consent and recovered the gun.

The Arapahoe County District Court suppressed the evidence, finding that Ganaway was seized before consenting. On interlocutory appeal, the Colorado Supreme Court reversed, holding the initial interaction was a consensual encounter, not a seizure, and that Ganaway voluntarily consented to the pat‑down. A dissent would have affirmed suppression, concluding the totality of circumstances was coercive and constituted a seizure unsupported by reasonable suspicion.

Summary of the Opinion

The initial motel‑lot interaction did not amount to a seizure under the Fourth Amendment. Asking a single, neutral question (“Where are you going?”) in a friendly tone, without commands, physical contact, drawn weapons, or obstruction of movement, did not create a show of authority directed at Ganaway sufficient to make a reasonable person feel they could not leave.
Two trial‑court factual findings were clearly erroneous and were set aside: that officers “surrounded” Ganaway and that they instructed him to “come with us.” The suppression record showed officers remained in a line, about 20 feet away, and made no such directive.
Ganaway voluntarily consented to a pat‑down. His express “no problem” and unprompted approach with arms extended constituted consent. The request’s permissive phrasing, lack of threats or promises, and the brief, friendly exchange weighed in favor of voluntariness.
Reversal and remand were ordered for further proceedings consistent with the opinion. The dissent argued the encounter, viewed as a whole, was a seizure involving a “collective show of authority” by eight officers standing near Ganaway’s destination.

Detailed Analysis

Standards Applied

Standard of review: Mixed question of law and fact. Appellate courts defer to supported historical facts but set aside clearly erroneous findings and review constitutional conclusions de novo. See People v. Dacus, 2024 CO 51; People v. McDaniel, 160 P.3d 247 (Colo. 2007); People v. Schrader, 898 P.2d 33 (Colo. 1995).
Record scope: Review limited to suppression hearing record. See People v. Thompson, 2021 CO 15.
Fourth Amendment framework: Not all police encounters are seizures. Consensual encounters do not implicate the Fourth Amendment; arrests and investigatory stops do. See People v. Taylor, 2018 CO 35; People v. Brown, 2022 CO 11.

Precedents and Authorities Cited and Their Influence

Defining “seizure” and consensual encounter

Florida v. Bostick, 501 U.S. 429 (1991); United States v. Mendenhall, 446 U.S. 544 (1980): The test asks whether a reasonable person would feel free to decline the officers’ requests or terminate the encounter, considering totality of the circumstances.
California v. Hodari D., 499 U.S. 621 (1991): A seizure requires physical force or submission to a show of authority.
Brendlin v. California, 551 U.S. 249 (2007): A show of authority must be perceived as directed at the person to effect a seizure. The Court relied on this directed‑at‑him concept in finding no seizure here.
People v. Marujo, 192 P.3d 1003 (Colo. 2008): Provided a non‑exclusive, ten‑factor framework for distinguishing consensual encounters from seizures. The Court systematically applied these factors.
People v. Paynter, 955 P.2d 68 (Colo. 1998) and People v. Melton, 910 P.2d 672 (Colo. 1996): Emphasize that mere questioning, the inherent social pressure to cooperate, and the absence of an advisement that one is free to leave do not transform an encounter into a seizure.
People v. Taylor, 2018 CO 35; People v. Shoen, 2017 CO 65: Availability of multiple avenues of egress suggests no seizure; conversely, blocking exits suggests the opposite (see People v. Brown, 2022 CO 11).

Consent to search

Schneckloth v. Bustamonte, 412 U.S. 218 (1973): Consent must be voluntary—an “essentially free and unconstrained choice”—not the product of coercion or deception.
People v. Berdahl, 2019 CO 29; People v. Munoz‑Gutierrez, 2015 CO 9: Voluntariness assessed under totality of circumstances, including characteristics of the defendant and the encounter’s nature; knowledge of the right to refuse is relevant but not dispositive.
United States v. Drayton, 536 U.S. 194 (2002): Phrasings like “Mind if I check you?” are requests indicating a consensual search; the Court analogized Detective Foster’s “if that’s okay” language.
People v. Thomas, 839 P.2d 1174 (Colo. 1992) and People v. Johnson, 865 P.2d 836 (Colo. 1994): Express assent and cooperative conduct can evidence valid consent.

The Court’s Legal Reasoning

1) No seizure during the initial encounter

After correcting two unsupported factual findings (“surrounded” and “come with us”), the Court evaluated the encounter using Marujo’s factors. Key points:

No emergency lights or sirens; patrol cars parked out of sight.
Although seven or eight officers were present, they stood in a line and did not approach Ganaway; he walked toward them and only noticed their presence at roughly 20 feet.
Weapons were concealed and never displayed; tone remained friendly; no commands were given; no physical contact occurred before consent.
Critically, there was an unobstructed path back to Ganaway’s car and out of the parking lot, and nothing in the officers’ positioning blocked or encircled him.
Only a single, neutral question (“Where are you going?”) was asked; no retention of identification; the exchange was brief.
Brendlin’s directed‑show‑of‑authority principle: A reasonable person in Ganaway’s position would have understood that police activity was afoot directed at Veloz’s room, not at him personally, until the detective asked for consent.

On this totality, the Court concluded a reasonable, innocent person would have felt free to decline and depart; thus, no seizure occurred.

2) Voluntary consent to pat‑down

Turning to consent, the Court found dual indicia:

Express consent: Ganaway’s “no problem” in response to “I’d like to pat you down for weapons, if that’s okay.”
Implied consent: He extended his arms, turned, and backed toward the detective without being directed to do so.

Voluntariness was supported by the request’s permissive phrasing, the friendly tone, the absence of threats, promises, or deception, and the brevity of the exchange. No evidence indicated that Ganaway’s age, education, intelligence, or state of mind impaired his free choice. While officers did not advise him he could refuse, that omission is not dispositive under Schneckloth and Berdahl.

3) Standard‑of‑review correction of trial‑court fact findings

The Court emphasized that clearly erroneous factual findings—“surrounded” and “come with us”—must be set aside when the record (here, the detectives’ testimony) contradicts them. The ultimate legal conclusions cannot stand if unsupported by the record. This procedural point significantly shaped the outcome, narrowing the totality to facts actually established.

The Dissent’s View

Justice Berkenkotter, joined by Justice Gabriel, would have affirmed suppression. The dissent offers a different holistic account:

Single continuous encounter: It is artificial to divide the interaction into an “initial question” and a later “consent” inquiry; the same cluster of facts controlled the entire exchange.
Coercive environment: Eight officers in tactical vests positioned 6–10 feet from the doorway Ganaway intended to enter, with no other civilians present, during what appeared to be a tactical operation. The officers stopped moving to avoid alerting Veloz and then immediately sought to pat Ganaway down.
Psychological impediments: Even if no physical barrier existed, the officers’ number, formation, and proximity to Ganaway’s destination created an intimidating atmosphere making refusal unrealistic. The dissent emphasizes case law recognizing that the “threatening presence of several officers” can indicate a seizure (Mendenhall) and that being outnumbered increases coerciveness (e.g., U.S. v. Ward; U.S. v. Bloom; U.S. v. Black).
Result: Because officers lacked reasonable suspicion to stop Ganaway, the subsequent search and fruits should be suppressed.

Impact and Significance

What this opinion clarifies or emphasizes

Numerosity and tactical attire alone are insufficient to transform neutral questioning into a seizure. The Court centers its analysis on whether there was a “directed” show of authority, whether movement was physically or practically obstructed, and whether commands or coercive signals were used.
Consent to pat‑down searches remains a robust, independent exception to the warrant requirement. Permissive phrasing and cooperative, unprompted gestures can establish valid consent even in multi‑officer settings, provided the totality lacks coercion.
Trial courts must ground suppression findings in the suppression record. Appellate courts will set aside unsupported factual inferences (e.g., “surrounded”) and correct legal conclusions built upon them.

Practical implications

For law enforcement

Neutral, non‑directive inquiries in a friendly tone, with no weapons displayed, no physical encirclement, and open egress, are likely to be treated as consensual encounters even with multiple officers present.
When seeking consent to a pat‑down, phrasing matters: “if that’s okay”/“mind if I…?” and avoiding commands support voluntariness. Documenting the suspect’s cooperative gestures can be decisive.
Operational positioning: Avoid blocking exits or surrounding individuals; leave discernible avenues of egress. Body‑camera footage that shows unobstructed paths and non‑threatening demeanor will be valuable.

For defense counsel

Focus on totality elements indicating a directed show of authority: numbers, formation, proximity, isolation from the public, immediacy of the request, and any implicit blocking of movement.
Develop the record on tone, gestures, officer requests versus commands, and any psychological coercion or practical impediments to leaving—especially in tactical operations near suspects’ destinations.
Challenge voluntariness where phrasing is imperative, multiple officers close in, or the suspect’s characteristics or state of mind suggest overborne will.

For trial courts

Anchor factual findings in testimony or admitted exhibits; avoid inferential leaps like “surrounded” absent record support.
Apply Marujo’s factors holistically; explain how the environment, not just discrete actions, would be perceived by a reasonable, innocent person.
Distinguish between Terry frisks (requiring reasonable suspicion that the person is armed) and consent‑based pat‑downs (valid with voluntary, uncoerced consent).

Limits and open questions

This is not a per se rule: Multi‑officer presence can become coercive depending on formation, proximity, commands, or barriers. Blocking exits (Brown) or using accusatory tones can tip the balance.
The Court did not rely on “plain view” or “plain feel” doctrines; the consent finding mooted those alternative justifications. Future cases may address those doctrines when consent is disputed.
Colorado’s Article II, section 7 was not analyzed separately; the holdings here track federal Fourth Amendment doctrine.

Complex Concepts Simplified

Consensual encounter: A voluntary interaction with police. Officers may ask questions; you are free to ignore and walk away. No Fourth Amendment “seizure” occurs.
Seizure: When police use physical force or a show of authority to which you submit, and a reasonable person would not feel free to leave. Examples: blocking your car, commands to stop, drawn weapons.
Show of authority directed at you: Not all police activity nearby is “toward” you. The question is whether their words/actions communicated an obligation to comply that a reasonable person would feel.
Consent to search: You can allow a search without a warrant. Consent must be voluntary—free of threats, force, or deception. Officers need not advise you that you can refuse, though that can matter.
Terry frisk vs. consensual pat‑down: A Terry frisk requires reasonable suspicion that you’re armed and dangerous. A consensual pat‑down needs no suspicion, but the consent must be voluntary.
Totality of the circumstances: Courts weigh all relevant facts together—tone, number of officers, positioning, commands, duration, ability to leave—rather than any single factor.

Conclusion

People v. Ganaway reinforces two core Fourth Amendment propositions in Colorado. First, the mere presence of multiple officers in tactical vests, without more, does not convert neutral questioning into a seizure where there are no commands, no display of weapons, no physical contact, and no obstruction of movement; the decisive inquiry is whether there was a directed show of authority making a reasonable person feel unable to leave. Second, a permissively phrased pat‑down request coupled with express assent and cooperative, unprompted conduct can constitute voluntary consent under the totality of the circumstances.

The opinion underscores rigorous adherence to the suppression record and provides operational guideposts for police and analytical touchstones for courts and counsel. The dissent’s cautionary perspective spotlights the psychological force of multi‑officer formations during tactical operations and will continue to shape defense arguments in close cases. Going forward, Ganaway will be a central citation in Colorado for evaluating multi‑officer, pre‑arrest encounters and the voluntariness of consent to pat‑down searches.