An Aurora officer lacked proper justification to search a 17-year-old vehicle passenger, and an Arapahoe County judge mistakenly allowed evidence from the search to be used against the teenager, Colorado’s second-highest court ruled last month.

During his pat-down of a boy identified by the initials E.J.G., Officer James Snapp uncovered a gun. For possessing a weapon, E.J.G. was later adjudicated delinquent, which is the equivalent for children of finding a defendant guilty. He received a brief sentence of jail plus probation.

A three-judge panel for the Court of Appeals, however, concluded Snapp had no legal basis under the Fourth Amendment to search E.J.G. and the two other Black teenagers he pulled over – even if Snapp allegedly smelled marijuana in the car.

“The officer also needed a reasonable belief that E.J.G. was armed and dangerous before searching his person,” wrote Judge Anthony J. Navarro in the panel’s April 20 opinion. “We conclude that the various circumstances, even in combination, did not support such a reasonable belief.”

Just before midnight on Feb. 26, 2020, Snapp saw a vehicle that lacked a headlight and license plate light. The vehicle crossed several lanes when making a turn and Snapp pulled it over. When he saw the three teens inside, it raised his “suspicions,” Snapp later testified.

Upon smelling marijuana, Snapp asked if there was any cannabis in the car. The occupants said no and offered to let Snapp search the vehicle. After multiple backup officers arrived, Snapp ordered the teens out of the vehicle and patted them down.

Snapp felt a firearm in E.J.G.’s waistband. E.J.G. admitted he had a gun, then told Snapp he was only 17.

E.J.G. attempted to prevent the gun from being used as evidence against him, arguing Snapp had no information suggesting E.J.G. was armed and dangerous, making the search unconstitutional.

District Court Judge Bonnie McLean disagreed, finding “this is a stop and frisk” to ensure officer safety. She concluded there were “no constitutional violations of the juvenile’s rights, and that the police conduct did not amount to a seizure implicating the Fourth Amendment.”

On appeal, the appellate judges initially noted McLean had relied upon a Colorado Supreme Court case that had little to do with the circumstances of E.J.G.’s police encounter. The panel then turned to the prosecution’s reasons allegedly justifying Snapp’s suspicion that E.J.G. was armed and dangerous:

? It was late at night

? The vehicle crossed several lanes

? The area had a high crime rate

? The car’s windows were tinted

? Snapp felt outnumbered by the teens

? None of the occupants showed identification

? Snapp smelled marijuana

Navarro ticked through those purported justifications in the opinion, finding them to be largely without merit. Neither tinted windows nor the lateness of the hour necessarily imply someone is armed and dangerous and, in any event, the driver had already opened the door when Snapp first approached to let the officer see inside, Navarro pointed out.  

“Moreover, even though Snapp was outnumbered at first, the juveniles followed all of Snapp’s instructions and were polite and respectful. They made no suspicious or furtive movements during the interaction,” he continued.

The fact that E.J.G., as a passenger in the car, did not have identification had no “logical connection” to potentially being armed. Finally, although marijuana possession is illegal in Colorado for those under 21, Snapp did not know E.J.G.’s age until after the pat-down.

“Even if there is sometimes a connection between drugs and weapons,” Navarro wrote, the “mere smell of marijuana, which may be evidence of purely legal activity, does not indicate that a person is armed and dangerous – at least where, as here, there is no additional evidence that the person participated in an illegal drug transaction.”

The panel deemed Snapp’s search unconstitutional and reversed E.J.G.’s juvenile conviction because the gun should have been suppressed as evidence. Other than the gun itself, there was no evidence at trial supporting the weapons possession charge.

The case is People in the Interest of E.J.G.