26 CO 41, 25SA344 People v. Baker, Troy

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
June 1, 2026

# 2026 CO 41

No. 25SA344, Baker v. People-Evidence Suppression-Fourth Amendment-
Unreasonable Search.

In this C.A.R. 4.1 interlocutory appeal, the supreme court reverses the
district court's order suppressing evidence from a protective sweep and search of
the vehicle in which the defendant was a passenger. The court concludes that the
officers acted within the bounds of both the United States and Colorado
Constitutions: the protective sweep was justified by officer-safety concerns, and
the vehicle search fell within the automobile exception. The case is remanded to
the district court for further proceedings.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 41

Supreme Court Case No. 25SA344
Interlocutory Appeal from the District Court
District Court, City and County of Denver, Case No. 25CR831
Honorable Karen L. Brody, Judge

Plaintiff-Appellant:
The People of the State of Colorado,

V.

Defendant-Appellee:

Troy J. Baker.

Order Reversed
en banc
June 1, 2026

Attorneys for Plaintiff-Appellant:

John Walsh, District Attorney, Second Judicial District

Jeff M. Van der Veer, Senior Deputy District Attorney

Denver, Colorado

Attorneys for Defendant-Appellee:

Megan A. Ring, Public Defender

Julia Jones, Deputy Public Defender

Denver, Colorado

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

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JUSTICE BLANCO delivered the Opinion of the Court.

11
Troy J. Baker was charged with one count of possession with intent to
distribute fentanyl and methamphetamine and two counts of possession of a
weapon by a previous offender ("POWPO"). Before trial, Baker moved to
suppress evidence that he alleged the police had obtained in violation of the
Fourth Amendment to the U.S. Constitution and article II, section 7 of the
Colorado Constitution. The district court agreed and suppressed the evidence in
question. Because we conclude that the search was within the limits of both the
U.S. and Colorado Constitutions, we reverse the district court's order.1

## I. Facts and Procedural History

12
At 10:03 p.m. on a Sunday night, two police officers pulled over a black
Toyota ("the Toyota") after noticing it did not have a front license plate. Before
leaving their patrol car, the officers saw the Toyota's driver, Rachelle Herrera, and
its front seat passenger, Baker, moving their arms back and forth with their elbows
above their shoulders. This was a high-crime area, and the officers were already

1 The issue in this C.A.R. 4.1 interlocutory appeal is as follows:

1\. Did [the] police have an objectively reasonable belief that the
occupants of the car were armed and dangerous where (among
other things) the officers were in a high-crime area, the officers saw
the occupants moving things around the car in response to the
stop, and the officers discovered that the passenger had recently
been arrested for POWPO?

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looking for drug and gun activity when they witnessed what they believed to be
these "furtive movements." The officers called for additional officer coverage.

13 At 10:04 p.m., the officers approached the Toyota and obtained the names
of the occupants. One minute later, at 10:05 p.m., one officer stayed with the
Toyota while the other officer returned to the patrol car to run both occupants'
names through a database. Through the search, the officer discovered that Baker
had recently been arrested for POWPO. By 10:07 p.m., when the officer exited the
patrol car, the additional officer coverage had arrived.

14 The officers then removed Baker from the Toyota at 10:08 p.m. An officer
patted him down and asked if he had a gun, to which Baker responded that he did
not. Less than one minute after Baker was removed, officers searched the
passenger compartment where Baker had been seated, and by 10:10 p.m., they
found a handgun under the front passenger seat that Baker had occupied.

15 After finding the handgun, police officers searched the rest of the Toyota.
Within three minutes, at 10:13 p.m., the officers found a black bag in the backseat
containing a large amount of fentanyl pills and methamphetamine. The officers
also found a red purse on the driver's side floorboard containing more fentanyl
pills.

16
It is worth noting that the entire sequence of events lasted approximately
ten minutes.

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17
Baker was charged with one count of possession with intent to distribute
fentanyl and methamphetamine and two counts of POWPO. Baker's sentencing
range was increased by a special offender enhancement for possessing a handgun
in connection with drugs and by habitual sentencing ranges that applied due to
his alleged criminal history.

18
Baker filed a pretrial motion to suppress the evidence seized from the
Toyota, arguing that the search violated his Fourth Amendment rights. He alleged
that the officers did not have a reasonable belief that he was armed and dangerous
when they began the search; therefore, they lacked justification for their initial
search that revealed the handgun. Further, Baker contested that the subsequent
warrantless search of the Toyota that uncovered the drugs was unconstitutional
because it did not fall under the automobile exception.

19
The district court held a suppression hearing and heard testimony from the
officers involved in the stop and search. The officers testified that they observed
what they characterized as abnormal or furtive movements in the Toyota as they
pulled the vehicle over. The district court found that during the stop, one officer
asked, "[W]hat are they moving?" and later stated into the radio that the occupants
were making "furtive movements." People v. Baker, No. 25CR831, at 3 (Dist. Ct.,
City & Cnty. of Denver, Nov. 23, 2025) (unpublished order). The officers testified
that it appeared as if Herrera and Baker were throwing items into the backseat.

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Further, they testified that based on their training and experience, these
movements could mean the vehicle contained contraband. The district court
found that the officers may have observed movement, but that their observations
consisted, at most, of unspecified movements, with each occupant of the vehicle
raising an elbow above their shoulder. Id. at 4. The district court was not
persuaded by the officers' testimony that this movement was "furtive" or gave rise
to sufficient fear to warrant a protective sweep or the subsequent search of the
Toyota. Id. at 15-17.

110 The district court concluded that the officers had a legal basis for stopping
the Toyota based on the missing front license plate. Id. at 7. However, it further
found that the investigatory detention "lasted longer than was necessary to
effectuate the purpose of the stop" given that the stop was based on the missing
license plate. Id. at 10. Finally, the district court found that the detention "was not
carefully tailored to its underlying justification," and ultimately, the protective
search was not justified because of a "lack of specific and articulable facts
supporting a reasonable belief that Herrera and Baker were potentially
dangerous." Id. at 10, 17.

111 The prosecution filed an interlocutory appeal requesting that we reverse the
suppression order.

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## II. Analysis

112 The Fourth Amendment to the U. S. Constitution and article II, section 7 of
the Colorado Constitution protect individuals against unreasonable searches and
seizures. U.S. Const. amend. IV; Colo. Const. art. II, § 7. The determination of
whether a search was reasonable "depends upon the reason for and the extent of
the intrusion." People v. Archuleta, 980 P.2d 509, 512 (Colo. 1999).

113 We begin by setting forth the applicable standard of review. We next
examine the guidelines set by this court and the United States Supreme Court for
police compliance with these constitutional protections. Finally, we analyze each
step of the interaction in this case: the initial stop, the protective sweep, and the
search of the Toyota.

### A. Standard of Review

114 We review a suppression order as a mixed question of law and fact. People v.
Dacus, 2024 CO 51, 1 23, 559 P.3d 198, 203. We accept the trial court's findings of
fact so long as they are supported by competent evidence. People v. Barnett,
2024 CO 73, 1 13, 559 P.3d 250, 253. We review the trial court's application of the
law to the facts under a de novo standard, considering the totality of the
circumstances. People v. Castaneda, 249 P.3d 1119, 1122 (Colo. 2011).

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### B. The Initial Stop

115 Although the legitimacy of the initial stop is undisputed, it remains an
important step in the analysis regarding the constitutionality of the search.

116 An officer who pulls over a vehicle in transit is usually conducting an
investigatory stop. People v. H.J., 931 P.2d 1177, 1180 (Colo. 1997). An
investigatory stop is considered "an intermediate intrusion that may take place
under narrowly defined circumstances." People v. Brant, 252 P.3d 459, 462 (Colo.
2011). An officer may conduct an investigatory stop if the officer has "(1) a
reasonable suspicion that criminal activity has occurred ...; (2) a reasonable
objective for the intrusion; and (3) a reasonable connection between the scope and
character of the intrusion and its objective." People v. Pacheco, 182 P.3d 1180, 1183
(Colo. 2008). A traffic infraction is sufficient justification for an investigatory stop.
Brant, 252 P.3d at 462.

117 We have previously held that, as occurred with the Toyota here, driving
without a license plate is a traffic infraction sufficient to justify a vehicular stop.
See People v. Redinger, 906 P.2d 81, 84 (Colo. 1995) (concluding that an officer's stop
of a vehicle due to its lack of a license plate was a reasonable investigatory stop).
Therefore, the district court did not err by finding that the officers had sufficient
justification for the initial stop of the Toyota and its occupants.

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### C. The Protective Sweep

118 During a traffic stop, if officers "have an articulable and objectively
reasonable belief that a person in the car may be armed and dangerous, they may
conduct a protective search of the person and the passenger area of the car." Brant,
252 P.3d at 462. This is due to the "particular hazards confronting law enforcement
during roadside encounters with drivers and passengers of automobiles."
People v. Delacruz, 2016 CO 76, 116, 384 P.3d 349, 353. Additionally, if the
passenger makes a "furtive gesture," Brant, 252 P.3d at 462, then officers may
search the passenger compartment so long as their search is "reasonably related to
the purpose of ensuring officer safety." Delacruz, [14, 384 P.3d at 353.
Furthermore, the "scope of a warrantless protective search of a vehicle's passenger
compartment is limited to those areas in which a weapon may be placed or
concealed." Id.

119 The officers testified that, after pulling the Toyota over but before leaving
the patrol car, they saw Baker and Herrera making strange movements with their
elbows above their shoulders. They further stated that they found this behavior
to be extremely abnormal and believed, based on their prior experience, that it
could indicate an attempt to conceal contraband. In addition, just after these
movements, the officers discovered that Baker had recently been arrested for
POWPO.

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120 The district court found these movements insufficient to warrant a
protective search because the officers were unable to identify what, if anything,
the occupants were moving. Baker, at 16. While we agree that an officer may not
rely on vague or ambiguous movements to justify a protective sweep, officers
should not have to wait for an unmistakably dangerous act, such as drawing a
firearm, before taking steps to ensure their safety.

121 Colorado law has long recognized that suspicious hand gestures or
movements are an important factor in justifying a weapons search. See People v.
Altman, 938 P.2d 142, 146 (Colo. 1997) (holding that a weapons search was valid
because the driver leaned over and made motions toward the bottom of his seat
after being stopped by the police); see also People v. Melgosa, 753 P.2d 221, 225 (Colo.
1988) (concluding that a passenger placing an object under his seat after being
pulled over was sufficient to trigger a weapons search); People v. Cagle, 688 P.2d
718, 723 (Colo. 1984) (holding that a passenger's furtive conduct in bending down
in his seat after the police car's emergency lights were activated created a
reasonable belief that he had a weapon under his seat). Accordingly, Baker's
suspicious movements-raising his elbows above his shoulders-are similarly
furtive.

122 In addition to the furtive movements, the officers discovered Baker's recent
POWPO charge prior to the sweep of the passenger compartment. And to further

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increase their suspicion, the officers were in a high-crime area where one might
expect to encounter a weapon. See People v. Clouse, 859 P.2d 228, 234 (Colo. App.
1992) (relying in part on the officers' presence in a high-crime area in concluding
that the weapons search was constitutionally permissible).

123 Given the furtive movements, the discovery of the POWPO charges, and the
high-crime area, we conclude that the officers had a reasonable belief based on
articulable facts that Baker could have been in possession of a weapon. See
People v. McDaniel, 160 P.3d 247, 251 (Colo. 2007) ("[T]he search of the vehicle and
the purse was valid because the officer had a reasonable belief based on articulable
facts from the defendant's behavior that the defendant could have been trying to
gain control of a weapon.").

124 Baker further argues that the sweep could not be done in the name of officer
safety because, by the time the officers performed their protective sweep and
found the gun, they had already removed Baker from the Toyota and restrained
him. However, "[t]he fact that an officer has physical control of the suspect does
not necessarily negate the threat to officer safety" because "a suspect can still break
away from police control and retrieve the weapon." Delacruz, [ 15, 384 P.3d at
353; see also Michigan v. Long, 463 U.S. 1032, 1039 (1983); People v. Smith, 13 P.3d 300,
308 (Colo. 2000). Accordingly, the officers' protective sweep was justified by
officer safety concerns, even though Baker was already restrained.

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## D. The Vehicle Search

125
For a search to be reasonable and within the limits of the U.S. and Colorado
Constitutions, officers generally must obtain a warrant before conducting a search.
People v. Edwards, 836 P.2d 468, 471 (Colo. 1992). However, a warrantless search is
permitted if the situation presents "an exception to the warrant requirement."
Delacruz, 1 13, 384 P.3d at 352. One such exception is the automobile exception,
which "authorizes an officer to perform a search of an automobile if he has
'probable cause to believe that the automobile contains evidence of a crime.""
People v. Allen, 2019 CO 88, 116, 450 P.3d 724, 729 (quoting People v. Zuniga,
2016 CO 52, 1 14, 372 P.3d 1052, 1056). Probable cause requires a court to weigh
the totality of the circumstances in determining "whether a 'fair probability exists
that a search of a particular place will reveal contraband or evidence of a crime."
People v. Cox, 2017 CO 8, 1 14, 401 P.3d 509, 512 (quoting Zuniga, 1 16, 372 P.3d at
1057).

126 In this case, we conclude that the officers who searched the Toyota acted
pursuant to the automobile exception. At the time the officers began their search,
they had already (1) seen furtive movements, (2) learned that Baker was recently
charged with POWPO, and (3) found a handgun in Baker's passenger
compartment despite his initial denial of possessing a weapon. These facts
provided probable cause for the officers to believe the Toyota contained evidence

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of a crime. See People v. Romero, 767 P.2d 1225, 1228-29 (Colo. 1989) (holding that
an officer had probable cause to search a car under the automobile exception
because she knew the occupant was a convicted felon, suspected that he had a gun
in the car, and saw the gun in the car). Therefore, the officers were lawfully
conducting a search pursuant to the automobile exception when they discovered
additional contraband.

127 The district court found that the stop lasted "longer than was necessary to
effectuate the purpose of the stop, and ... was not carefully tailored to its
underlying justification." Baker, at 10. We see the situation differently.

128 As for the protective search, although we agree that the initial purpose of
the stop was to investigate the license plate infraction, once officers observed
furtive movements and learned of Baker's recent POWPO arrest, officer safety
concerns arose and the nature and purpose of the stop changed. As we've
established, these officer safety concerns justified the protective sweep. The
protective sweep then led to the discovery of the handgun, giving rise to probable
cause that a crime had been committed. Within the ten-minute duration of the
stop, events unfolded in such a way that altered both the purpose of the stop and
the needs arising from it.

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## III. Conclusion

129
For these reasons, we reverse the district court's order suppressing all
evidence seized from the search, including the evidence derived from the search.
We remand the case to the district court for further proceedings.