The Denver-based federal appeals court rejected the idea on Tuesday that a vehicle occupant poses a danger to police solely because they are romantically involved with another occupant who officers are arresting.

By 2-1, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit concluded Denver police lacked reasonable suspicion to conduct a “protective sweep” of a vehicle after the driver was already under arrest and in handcuffs. A trial judge previously found the search lawful, reasoning that the passenger in the car might “somehow intervene or defend her romantic partner” by retrieving a potential weapon.

Judge Gregory A. Phillips, in the March 17 opinion, noted there was little evidence about the relationship between the passenger, Ajanaya Richardson, and the driver, Kylear Williams. Although Williams acknowledged to officers that he was a gang member with a criminal history, both he and Richardson were fully cooperative during the traffic stop.

“Nothing about Ms. Richardson during the stop suggested a person ready to die in a shootout with four officers,” wrote Phillips for himself and Judge Nancy L. Moritz. “We reject a rule that a woman with a dating partner like Williams is per se reasonably suspicious for being armed and dangerous.”

Senior Judge Paul J. Kelly Jr. dissented, believing the majority should not second-guess the officers’ concern for their safety.

“Unfortunately, that is what the court’s opinion does here,” he wrote.

Video evidence and testimony established that Cpl. Zachary Moldenhauer and Officer Emmet Hurd pulled over a vehicle one January night along East Colfax Ave. after the driver allegedly failed to use a turn signal. They learned the car was registered to Richardson.

Moldenhauer approached the driver, Williams, who acknowledged being previously incarcerated and indicated that he had an affiliation with a local gang.

Hurd spoke with Richardson and engaged in small talk while she looked for the vehicle’s documentation. Although Hurd later said that Richardson mentioned she was dating Williams, the 10th Circuit could not locate that comment on the video recordings.

The officers learned Williams had no valid driver’s license and had municipal warrants. They handcuffed him, moved him away from the car, and patted him down.

A male officer also patted down Richardson outside the vehicle. Moldenhauer decided to perform a protective sweep of the vehicle, which is permissible if police reasonably suspect a person could quickly access a weapon and pose a danger.

Under the driver’s seat, Moldenhauer found a loaded “ghost gun” without a serial number. Police then handcuffed Richardson and towed her car.

A grand jury indicted Williams for being a felon in possession of ammunition. He pleaded guilty and received a sentence of more than five years in prison.

Before his plea, the defense sought to exclude the gun evidence. Williams’ attorney argued that police could not have believed Williams remained armed and dangerous, as he was handcuffed and nowhere near the vehicle. Moreover, it was “absurd” that Richardson could have harmed the officers under the circumstances.

U.S. District Court Judge Philip A. Brimmer concluded the protective sweep was justified. He acknowledged Richardson’s lack of criminal history, valid driver’s license, and cooperation throughout the encounter. But he believed Richardson’s romantic relationship with Williams gave officers reason to believe she could turn violent to protect him.

“Because of her romantic relationship with Mr. Williams,” said Brimmer, “she could have a motive, upon gaining access to the car and potentially knowing that there was a weapon under the driver’s seat, could use that weapon to somehow threaten the officers, shoot the officers, in order to somehow defend or free Mr. Williams, given the fact that he had been arrested.”

During oral arguments to the 10th Circuit panel in November, some of the judges pushed back forcefully on that logic.

“You cannot ask for a more polite person to stop like this, if you looked at the video,” said Phillips. “She’s gonna get in her car and she’s gonna come out firing to save her boyfriend despite there being multiple cops? … That’s what we’re supposed to believe?”

“You have the fact that she is with a person who is an admitted gang member in a gang area where there are rival gangs,” said First Assistant U.S. Attorney J. Bishop Grewell.

“That might indicate she has poor judgment,” interjected Moritz. “What makes us think that even if they’re in a joint enterprise, despite the lack of any evidence on her side of that, that she’s gonna turn around; take her car that she has a registration for, with her valid driver’s license, after being very nice to the officer; and she’s gonna access the weapon they believe to be there, that probably belongs to (Williams); and she’s gonna use that weapon on these officers?”

Phillips, in the majority opinion, rejected the principle that vehicle occupants may turn violent if police arrest their romantic partners.

That “amounts to a criminality-by-association test, when the governing test instead requires that we consider the totality of circumstances,” he wrote.

Because the officers lacked a basis to believe Richardson was armed and dangerous, their search of the vehicle was unreasonable. The majority overturned Williams’ conviction.

The case is United States v. Williams.