The Tenth Circuit published United States v. Gilmore last week.
Andre Gilmore went to the National Western Stock Show in Denver. According to others, Gilmore was "staggering and appeared intoxicated," "staggering or swerving," "very disoriented," "out of it," "staring blankly into the air, having difficulty focusing, walking in a meandering, unsteady fashion," and "a candidate for protective custody due to his apparent level of intoxication." So officers approached him and asked questions, but Gilmore either did not answer or mumbled something incoherent. Officers then asked if he had any weapons, but Gilmore did not answer, so officers frisked him. He had a gun (of course he had a gun). He was a felon as well, so the case went federal. Gilmore filed a motion to suppress. It was denied. The Tenth Circuit affirmed.
The decision does not turn on reasonable suspicion to believe that Mr. Gilmore was armed and dangerous, the standard justification for a frisk. Instead, the Court determined that the officers had probable cause to believe that Gilmore was a danger to himself. In support, the Tenth Circuit cited a string of cases involving seizures justified via a community caretaking justification. One case actually holds that officers, acting as community caretakers, can seize a drunk person so long as the officers have probable cause to believe the person might harm himself or others.
What is interesting about this case, however, is that the Court upholds a search, not a seizure, based on the community caretaking rationale. That seems a significant step to us. The Supreme Court has often said that searches (especially of one's person) are much more serious infringements than seizures. But we might be alone because Gilmore actually conceded that probable cause that he was a danger to himself meant probable cause to search (not just seize). That concession moots our concern for this case (but it might be wise not to concede this point in future cases).
The remainder of the opinion is a recitation as to why the officers had probable cause to believe that Gilmore was a danger to himself. We will not reiterate all of it, but the bottom line is that Gilmore appeared extremely drunk and in need of care.