Colorado Supreme Court Tate v. People 11SC382

Decision here.

   This case spells out a lot of really interesting search and seizure stuff, and it's a short decision.  I'd recommend reading the original.

   Tate was passed out in a parked car with the engine running.  An officer found him, and parked the patrol car behind Tate's car.  Since there were other cars parked in front of and to the sides of Tate's car, he was effectively boxed in an unable to leave.  Also, he couldn't leave because he was unconscious.

   The officer found that Tate smelled strongly of alcohol, had urine stained pants, and had quite the collection of empty beer cans in the passenger seat.  He woke Tate up, and eventually arrested him for DUI.  The trial court suppressed all the evidence in this case, because it held that Tate was seized from the moment that the officer parked behind him, and that at that point there was no reasonable suspicion.  The people filed an interlocutory appeal (which they won), Tate appealed the people's appeal, and now the Supreme Court has spoken.

   The Court relied heavily on the US Supreme Court's case Brendlin v. California.  The Court explained that a person is seized when an officer, by means of physical force or show of authority, intentionally terminates or restrains his freedom of movement.  And where an officer makes a seizure by show of authority, the person is only seized if they submit to the seizure (so if you try to pull someone over and they just keep going, they haven't been seized as far as the Fourth Amendment is concerned).  In cases where an officers actions don't make his intent to seize someone obvious, or where a person's submission to authority takes the form of "passive acquiescence" the legal test is whether a reasonable person would have felt free to leave, or (if they wouldn't want to leave for reasons that had nothing to do with the police) whether a reasonable person would have felt free to disregard the officer's request or otherwise terminate the encounter.

   Going back to the Brendlin case, the US Supreme Court ruled that where a car has been stopped, it's not just the driver who has been seized.  The passengers have been seized because they would reasonably perceive the officer's show of authority as being partially directed at them.  This next part is really important.  The court noted that when a cop makes a traffic stop, sometimes other drivers will be delayed because the road is being blocked by the traffic stop.  Those people have not been seized even though their freedom of movement has been restrained because they would not perceive the officer's show of authority as being directed at them.

   So in order for a person to be seized, they would have to be aware that their freedom is being restrained.  Even if an officer does limit someone's freedom of movement, if the person is somehow not aware that the officer is restraining them then they have not been seized.  And that's exactly what happened in this case.

   The Colorado Supreme Court held that because Tate was passed out and blissfully unaware that the cop had prevented him from leaving, he was not seized.  By the time he was awake (and therefore aware of his new limitations and therefore seized), the cop had already developed reasonable suspicion (perhaps even probable cause) by way of noticing the beer cans, the smell, and the wet spot on the front of Tate's pants.  The suppression of the evidence was reveresed, and the case was sent back to the lower court for further proceedings.

Tenth Circuit Schwartz v. Booker 11-1583

Decision here.

   I remember reading the criminal appeal from this case, but it didn't make the blog because it did affect police actions in the field (it was one of those decisions more important to prosecutors than to cops, if I recall correctly).  Anyway, it was a pretty gruesome read.

   The case centers around a child (Chandler) who was in foster care, and who was the subject of child abuse complaints whilst in foster care.  Suspicious bruises, long absences from school with cryptic explanations, and some really bizarre and heavy-handed discipline.  In the end, Chandler died of starvation after being confined to a closet as a punishment for something trivial.  Heads rolled.

   In this case, the child's biological parents filed a §1983 suit against a pair of social workers who didn't investigate one of the latest complaints of abuse.  Specifically, they alleged a due process violation. Usually, due process only protects people from actions taken by the government and not from actions by third parties (such as the murder of a child by a private individual). There are two exceptions: 1- Where the the state has assumed a special relationship with and control over an individual. 2- Where state officials created the very danger that caused the harm, they may be liable for the actions of third parties. 

   In order to meet the special relationship exception, the facts have to show some sort of involuntary custodial relationship between the state and the person whose rights are being violated (such as being under arrest, being involuntarily committed, or being a child in foster care).  Then the facts also have to show that the official knew of the danger or failed to exercise professional judgment, and that this behavior was conscious shocking.  As applied to this case, the social workers were held to have abandoned their professional judgment when they inexplicably closed the case in violation of agency guidelines and in light of all the previous information this was held to be conscious shocking.

   The social workers argued that since they weren't the ones who actually placed Chandler in the foster home where he died, they didn't have a special relationship with Chandler for the purposes of this exception.  The court didn't buy it; the special relationship isn't limited to the official who initially creates it by putting the victim in state custody.  The special relationship attaches to the state, not to the individual official.  The individual official becomes liable when in the context of a special relationship they abandon their professional judgment in some conscious shocking way.

   This is another one where the instant case doesn't involve police action, but the applications to law enforcement should be obvious.

Tenth Circuit BIC v. Gillen 11-3219

Decision here.

   The facts of this case don't involve much police action, but it's getting summarized here anyway.

   Gillen was a social worker who received numerous reports from BIC's grandparents, from a doctor, and from law enforcement that alleged child abuse against BIC and her sister.  She didn't do anything about these reports, to the point of refusing to accept photographs of injuries, claiming to have done follow up investigation which may or may not have actually been done, and failing to investigate the reports she received either from law enforcement or civilian witnesses.  There are allegations that this is because she had a grudge against this specific family (and those allegations were apparently borne out by statements from law enforcement and from an internal investigation by Gillen's supervisor).

   Eventually, one of the kids died.  Her stepfather's girlfriend (I think I got that right, it gets kinda tangled) was convicted of the murder.  BIC's grandparents filed a §1983 claim, alleging a due process violation. Usually, due process only protects people from actions taken by the government and not from actions by third parties (such as the murder of a child by a private individual). There are two exceptions: 1- Where the the state has assumed a special relationship with and control over an individual. 2- Where state officials created the very danger that caused the harm, they may be liable for the actions of third parties.

   In this case, the allegation is that Gillen created the danger by her refusal to act. The district court had given Gillen qualified immunity on this, but the plaintiffs appealed that. The Tenth held that this wasn't so much a failure to act as a conscience-shocking refusal to act, and that Gillen is not entitled to qualified immunity. The case was sent back to the lower court to see if the plaintiffs can prove the other elements of the danger-creation exception.

   I'm throwing this one on the blog because it shows that there are some circumstances (however rare) where just failing to to our job actually becomes a Constitutional violation. Hopefully, the police would know better than to engage in the sort of wanton and egregious intentional neglect that Gillen is accused of. Then again, hopefully social workers would also know better.

Tenth Circuit US v. Jones 11-3104

Decision here.

   Officers of the Missouri Highway Patrol were conducting a marijuana investigation.  Essentially, the plan was that they would engage in surveillance of hydroponics stores, follow suspicious customers home (as long as those customers lived in Missouri.  This operation was being conducted in Kansas City, Missouri), and then do a knock and talk.  According to the sergeant who was running the show, this sort of operation had led to about 100 knock and talks, and the vast majority of those had led to the discovery of marijuana grows.

   Anyway, the officers followed Jones to his house after watching him make a purchase at a hydroponics store.  None of them noticed when the crossed the border into Kansas City, Kansas.  Oops.

   They met with Jones in the alley behind his house, and told him that they were there for his marijuana plants.  Jones responded "Oh, shit," and then asked how they knew he had marijuana plants.  They told him "Because you just said 'oh, shit.'"  Then they asked for his license, checked for warrants, and started angling for consent to search his house.  Jones didn't actually tell them that they could search his house, but he also didn't tell them they couldn't as they followed him up to his door and inside.  He also didn't tell them that they had to leave once they were inside, he just showed them one room and then shrugged (the court record says "raised his hands with his palms up as if to signal that there was nothing for the officers to see," but I think that sounds like a shrug).

   Then Jones went into another room where he grabbed a long gun and pointed it at the officers.  The officers opened fire, wounding Jones, and then retreated from the house.  When they called for backup, they learned they were outside of their jurisdiction.  The real cops showed up to take over the investigation, and got a warrant for Jones' house.  Jones was indicted for manufacturing a controlled substance and brandishing a firearm during a drug offense.  He conditionally pled guilty after the district court refused to suppress the evidence, and then appealed the suppression ruling.

   Jones' arguments were as follows: 1- The officers violated the Fourth Amendment by detaining him outside of their jurisdiction.  2- The officers' accusatory tone ("We're here for your marijuana plants") meant that their initial contact with him was a seizure, and they did not have reasonable suspicion.  3- He did not consent to the entry into his home.  And 4- because it was obtained using information that should have been suppressed, the Kansas officers' search warrant was invalid.

   The Court ruled that the officers didn't violate the Fourth amendment by operating outside of their jurisdiction.  This is sort of a tricky point... the officers were definitely violating state law (Kansas state law, in this case), and that's not good, but violations of state law aren't a Fourth Amendment issue (unless, of course, state law is violated in a way that also violates the Fourth Amendment directly).  Therefore, state law violations don't create suppression issues.

   As far as the initial contact being a seizure, the question is whether or not under the totality of the circumstances a reasonable person would have felt free to terminate the encounter.  The officers' accusatory tone during the initial confrontation ("We're here for your pot plants") didn't rise to that level, so Jones was not seized at that point.  He was seized when the officers took his driver's license, but by then they had reasonable suspicion which justified the seizure for Fourth Amendment purposes (even if not for state law purposes...).

   Although Jones did not directly tell the officers that he consented to their entry into his house, consent can be implied by one's actions (it doesn't have to be explicity stated).  In this case, the Court held that allowing the officers to walk up to the door, unlocking it without being told to, and leading the officers into the house communicated Jones' consent.  Jones argued that the consent was involuntary for the same reasons that he argued he was unreasonably seized (the accusatory tone), and the court rejected this argument for the same reason: a single accusation doesn't rise to a level of coercion that would make consent involuntary.

   Finally, since the court didn't agree with any of Jones' arguments about the allegedly improper conduct of the Missouri cops, none of the information was tainted.  The Kansas cops were entitled to to rely on it in their warrant application.  The denial of Jones' motion to suppress was affirmed.

Tenth Circuit US v. Santistevan 11-1534

Decision here.

   Santistevan was being investigated for a series of robberies, and was arrested after turning himself in on an unrelated warrant.  An FBI agent met with Santistevan after he was arrested to try to obtain a statement, but Santistevan refused.  

   A few days later, the agent got a call from Santistevan's girlfriend who said that Santistevan now wished to talk.  While the agent was on his way to the jail, a lawyer called him and told him that she represented Santistevan and that Santistevan did not wish to speak to him without counsel.  She also said that she had given Santistevan a letter to give to the FBI agent if he did go to the jail (is anyone else sick of this?).

   The agent went to the jail anyway, and asked Santistevan about the letter.  Santistevan handed him a letter from the attorney which said about what you'd expect.  The agent explained to Santistevan that he had been told by an attorney not to talk, but that it was all up to him, and asked him if he wanted to talk.  Santistevan said that he did want to talk, and then waived Miranda, and then made some incriminating statements.

   Santistevan's statements were suppressed, and the prosecution appealed.  The Tenth Circuit ruled that Santistevan's lawyer was not able to invoke Miranda on his behalf, the invocation of his rights had to come from him (so the agent was good to go with the interview after the phone call).  That said, by handing the letter to the agent, Santistevan was invoking his rights even though he didn't say anything at all.  And this invocation was in no way ambiguous, so the agent should not have asked questions to clarify Santistevan's intent and also should not have conducted the interrogation.  The suppression order was affirmed.

   The prosecution also argued that Santistevan wasn't in custody at the time, but the Court disagreed and held that he was in custody and subjected to custodial interrogation  (I think the prosection might have been trying to treat this like Howes v Fields, but being in jail for a few days isn't the same thing as being in the middle of a prison sentence).  The Court recognized that someone who has invoked their rights may later change their mind and waive them, but that they have to reapproach the police with this new waiver (the police can't be the ones to reinitiate interrogation).  But that fact isn't relevant to the court's analysis here, since whether Santistevan initiated contact with the police (through his girlfriend) or not, he reinvoked his rights once the agent showed up to actually interrogate him.

Colorado Court of Appeals People v. Allman 09CA1347

Decision here.

   Allman was a registered sex offender who lived in Colorado Springs, but found a job in Garfield County.  He would drive to Garfield County, spend the week sleeping in his car (in different locations every night), and then drive back to the Springs on the weekend.  This went on for a couple of months, when deputies were dispatched to a suspicious vehicle in a rec center parking lot.

   Deputies found the car, and found Allman sleeping in it.  During questioning, he admitted that he was staying in his car, and he was arrested for failing to register.  He was later convicted, and appealed.  He argued that because his car wasn't a permanent place with a fixed address, it wasn't a residence for the purposes of registration, and that his statements to the deputies should have been suppressed as a violation of Miranda.

   The Court of Appeals held that Allman's car was, in fact, a residence.  The statutory definition of "residence" includes any place if used, intended to be used, or usually used for habituation.  Given that Allman was sleeping in his car five or six nights per week, the car qualified as an additional residence which means he should have registered with Garfield County within five days.

   As far as Miranda goes, deputies asked Allman to get out of his car and give them his ID, and questioned him for about seven minutes (but it may have been as long as 20, depending on whose testimony you believe).  They used normal conversational tones, didn't point guns at him, etc, etc... you know the list.  Even though Allman apparently got pretty upset during the questioning, he was not in custody for Miranda purposes.  His conviction was upheld.

Colorado Court of Appeals People v. Novitskiy 10CA2023

Decision here.

   Novitskiy paid for some gas and a lotto ticket with a counterfeit $20 bill, and the manager immediately called the police.  Novitskiy was still there when the police showed up, and the manager told them "That guy gave me a fake 20."  An officer ordered Novitskiy to produce any money on his person, and found more fake money.  Novitskiy was arrested, and eventually convicted of forgery.  Novitskiy appealed his conviction, arguing that the scope of the search exceeded what was permissible during an investigative detention, and arguing that the police lacked probable cause to arrest.

   The Court of Appeals noted that where the identity of an informant is known, they may generally be presumed credible.  In cases where the informant provides information that relies on special expertise (such as identifying fake money), that expertise can sometimes be inferred from the circumstances (such as where the informant works with cash for a living, and probably knows how to spot a fake bill).  Therefore, even though all the police had was a cashier pointing out the defendant and saying "That guy gave me a fake 20," that information was enough to establish probable cause to arrest.  The officer's demand that Novitskiy produce all his money was justified as a search incident to arrest.

   The decision also explains that probable cause is not based on mathematical probability, but just on common sense and reasonable grounds.  Novitskiy's conviction was affirmed.

Colorado Supreme Court US v. Marshall 12SA215

Decision here.

   Two Colorado Springs officers went to Marshall's house to serve him a summons for indecent exposure (the decision goes on to explain that "serving a summons" meant transporting him to the station to be fingerprinted and processed).  Marshall wasn't there, so they waited outside for him.  Half an hour later, he arrived and the officers met with him in the parking lot.  He had a backpack, which he was instructed to put down.  After he put the backpack down, he was arrested.  During a search incident to arrest, officers found some weed in his pocket.  He was put in the patrol car, and his backpack was searched (incident to arrest).  It had more weed, a scale, and some prescription pills in it.  Marshall was charged with possession with intent to manufacture or distribute.

   The trial court ruled that since Marshall was secured in a patrol car at the time that the backpack was searched, the backpack could not be searched incident to arrest under Arizona v. Gant.  The evidence in the backpack was suppressed, and the people appealed the suppression order.

   The Colorado Supreme Court observed that there is a factual difference between searching a person and searching a vehicle.  The former involves greater risk to the officer, since a person retains some ability to access weapons or evidence on his person even after he has been restrained.  Of greater relevance here, the Gant decision related specifically to searches of a vehicle's passenger compartment incident to arrest, and in no way affected searches of persons or of containers in their possession.  The trial court erred in expanding Gant beyond its own scope.

   Since Gant doesn't apply to these circumstances, the Court turns our attention to a 1988 case (People v. Boff) that does.  In that case, Boff was arrested, and when he got to the station his backpack was searched revealing marijuana.  Boff had argued that the search was not incident to arrest because the backpack had been out of his control for some time when the police had finally gotten around to searching it.  The Colorado Supreme Court had ruled that the search was justified (whether or not there was exigency based on evidence preservation or officer safety) because when a person is validly arrested he loses his expectation of privacy in the items on his person at the time of his arrest.

   So the Court applied the same reasoning here, holding that a person's expectation of privacy in items on or near their person goes away when they are validly arrested.  Marshall's suppression order was reversed, and the case was sent back to the trial court for further proceedings.

Colorado Court of Appeals People v. Van De Weghe

Decision here.

   Van De Weghe retired from the Denver police department in 1989, but still habitually carried a badge in his wallet.  Decades later, he was pulled over in Arapahoe county for failure to signal for a turn and not wearing his seatbelt.  Van De Weghe flashed his badge and told the deputy he was currently employed as a police officer.  The deputy asked a couple of follow up questions, and when Van De Weghe was unable to produce a commission card or give the name of his supervisor, he admitted to not actually being currently employed as a police officer.  The deputy would later testify that he thought Van De Weghe was trying to get professional courtesy (I think he'd have been able to pull that off with most cops if he hadn't lied).

   Van De Weghe was charged with Criminal Impersonation and Attempt to Influence a Public Servant.  This deputy is apparently not someone to be trifled with!

   After being convicted on both counts, Van De Weghe appealed.  His argument was that Attempt to Influence a Public Servant proscribed essentially the same conduct as Criminal Impersonation.  But in Colorado, the same behavior can violate multiple laws and you can be convicted of violations of all of them (unless one is a lesser included offense of the other, or unless one of the laws limits prosecution of the offense in some other way).  In this case, the Court of Appeals held that the crimes have different elements, and that the general assembly didn't intend to limit one statute by enacting the other.  Van De Weghe also tried to argue that only one of the statutes could be applied because Attempt to Influence is part of a comprehensive regulatory scheme, but that only tells us that Van De Weghe (or his lawyer) doesn't know what a comprehensive regulatory scheme is. The court didn't fall for it.

   Both convictions stand.  When I retire, I'm mounting my badge in a shadow box. 

Tenth Circuit US v. Conner 12-1063

Decision here.

   A reporting party called the police at 11 PM, and did not give his name but did give his phone number and address.  The RP said that he had just seen a light-skinned black male wearing a fuzzy hunter hat get out of a black SUV and hide a pistol in his waistband after someone yelled "No, no!"  Officers would later testify that the area where this occurred is one of the worst neighborhoods in Denver.

   I am inclined to agree.  Any place where people where fuzzy hunter hats is no place that I want to be.

   Police officers responded to the call and found a light skinned black male (Conner) wearing a fuzzy hunter hat and walking away from a black SUV which was parked exactly where the caller had said it would be.  They detained Conner at gunpoint, searched him, and found that he was in fact concealing a pistol in his pants.  Conner was charged with being a felon in possession of a firearm.

   Conner moved to suppress the gun as the fruit of an illegal stop.  His argument was that the initial report was an anonymous tip, and therefore unreliable, and also that even if the tip were reliable it didn't establish reasonable suspicion.  Amusingly, Conner acknowledged that the police had enough information to necessitate an investigation.  He just thinks they should have tried a consensual contact instead of gunpointing him.  What bizarre logic.... Anyway, the trial court was having none of it, so Conner appealed to the Tenth Circuit.

   Conner's argument against the reliability of the tip leans heavily on Florida v. J.L. (the Supreme Court decision about the anonymous tip that someone at a bus stop had a gun.  I've been meaning to add that case to this site for a while now).  The problem with his argument is that the two cases don't have much in common with each other.  In J.L, the police had no information about the anonymous caller at all.  In this case, the police didn't know the caller's name but they did have enough information to go contact him if they needed to.  In J.L, the caller didn't say how he knew that someone had a gun, and there was no other information to corroborate the tip.  In this case, the caller claimed to have just witnessed the events he was calling in, and he provided a detailed description of the suspect and the circumstances, all of which were verified when the police found a suspect matching the description in the immediate area of the black SUV which was parked exactly where the caller said it would be.  The Court held that the tip was plenty reliable for the police to act on it.

   Regarding reasonable suspicion, the court again held that RS just requires a minimal level of objective justification.  Conner hiding the gun in his waistband right after someone yelled "No, no!" gave the police reason to suspect that Conner was involved in some sort of armed confrontation.  That was reason enough to justify the stop.

   I really loved the last paragraph of the court's decision, so I'm just going to paste it here (minus some internal quotation marks):

Therefore, we conclude that this is clearly not a case of police officers
arbitrarily stopping an individual walking down the sidewalk during the middle of
the afternoon.  Nor is this a case of police officers arbitrarily stopping an individual walking
down an alley late at night in a high-crime area.  Here, the officers had a
sufficiently reliable tip and a reasonable suspicion of criminal activity—they
believed Mr. Conner might have been involved in an armed confrontation.
Reasonable suspicion requires a dose of reasonableness and simply does not
require an officer to rule out every possible lawful explanation for suspicious
circumstances before effecting a brief stop to investigate further.

   Conner's conviction was affirmed.  

Tenth Circuit US v. Guardado 11-4169

Decision here.

   Guardado was walking around a high crime area at 1:00 AM with several other people.  They were dressed mostly in brown and one of them had a backpack.  Meanwhile, the police were targeting that area because of an ongoing tagging feud between two gangs (and also because it was a high-crime area, as evidenced by recent agg assaults and such). A couple of officers saw Guardado and his compatriots, and decided to stop them.  They based their decision on the criminal activity in the area, the fact that Guardado & Co. were walking in an area where there wasn't much other pedestrian traffic, the time of night, the fact that brown was the color of one of the gangs in the area, and the fact that taggers usually carry their equipment in backpacks.

   One of the officers illuminated the suspects with a spotlight and got out of the car.  Someone yelled "cops!" and Guardado took off running.  The officers chased after him while ordering him to stop, but Guardado kept running (while running he kept one of his hands in front of his body, near his waistband).  The cops tackled Guardado struggled with him briefly, handcuffed him, and found a gun concealed in the front of his pants.  He was charged with being a felon in possession of a firearm.

   In court, Guardado moved to suppress the gun.  When his motion was denied, he entered a conditional guilty plea and appealed the denial of his motion.  His argument was that there was no reasonable suspicion to justify the stop, so the gun was the fruit of an illegal seizure.

   The Tenth Circuit held that Guardado was not seized until he was tackled (because a person is seized only when an officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.  While he was running, his freedom of movement had not yet been restrained).  Accordingly, the court did not consider whether or not there was reasonable suspicion when the officer got out of his car to contact Guardado.  The court only considered whether or not there was reasonable suspicion at the time that the stop was effected.

   Factors contributing to reasonable suspicion in this case included the high crime area, the time of night, Guardado et al's clothing and backpack, and Guardado's headlong flight from law enforcement ("the consummate act of evasion").  The court was careful to point out that there's a significant difference between simply walking away (which doesn't really create RS) and suddenly running away (which is highly suspicious).  The court also explained that reasonable suspicion requires only a minimal level of objective justification that criminal activity is afoot.  Furthermore, reasonable suspicion doesn't require that the police be able to identify a specific, particular crime; if the facts support a suspicion of criminal activity in general, that's enough.  And suspicion is a pretty low threshold, which can even be met where an innocent explanation is more likely than a suspicious one.

   So the court is willing to give us a lot of leeway on the issue of RS (although there have been plenty of other cases which show that the court's patience is not inexhaustible).  The stop of Guardado was justified at the moment it occurred, whether or not it was justified at the moment that the police decided to stop him (the court doesn't say what it thinks about that, and reminds us that the officers' subjective intent to stop Guardado is irrelevant).  Guardado's conviction was upheld.

Colorado Court of Appeals People v. Berdahl 11CA0423

Decision here.

   This one is bad.

   Before sunrise in early January, a deputy was dispatched to check the welfare of a stranded motorist on the highway.  The deputy (and a trooper who we'll be meeting in a moment) would later testify that it was really cold.  While the deputy was on his way, he encountered Berdahl.  Berdahl was walking down the road half frozen, and the deputy stopped to render assistance.  Turns out Berdahl had been one of the occupants of the stranded car, and he was trying to go get help.  His girlfriend was still at the car.  The deputy gave Berdahl a ride back to the car after patting him down for weapons.

   Berdahl's girlfriend wasn't doing too well, either.  They had apparently tried to call for help, but no one would come and now their phone was dead anyway.  They had tried to light a fire in a barrel.  Basically, they were screwed.  They waited and warmed up in the deputy's car while he tried to make arrangements for them.

   Enter CSP.  A trooper arrives, and the deputy tells him what's going on.  He agrees to give Berdahl and his girlfriend a ride to a nearby town, since they can't very well be left to fend for themselves against the elements.  Before giving them a ride, he searches Berdahl ***but not his girlfriend.***  That bites him in the ass in court later, and is yet another reason that we should be conducting opposite sex searches the same way we conduct same sex searches.  Anyway, during the search the trooper finds a pipe and a small bag in Berdahl's sock (which the deputy had apparently missed).  He doesn't really examine them until he's already giving the pair a ride, and then he realizes that the bag contains meth.  Berdahl finds himself arrested.

   Berdahl tries to have the evidence suppressed.  The trial court rules that the encounter wasn't really consensual on Berdahl's part, because Berdahl's two options were 1: submit to the search and get a ride, or 2: freeze to death.  Still, the trial court held that the search of Berdahl's person was reasonable for "officer safety."  As a side note, I think that the words "officer safety" are two of the most dangerous words to our profession, perhaps surpassed only by the word "articulate."  We tend to say "officer safety," and then forget that the justification for what they did needs more explanation.  But I digress.

   Berdahl appealed, and the court of appeals held that placing someone in the back seat of a patrol car does not confer the authority to search that person, even when it's all but unavoidable (as in this case).  Although the court acknowledged that putting an unsearched person in the back of a car does pose a risk, the court also noted that the trooper seemed happy enough to face this risk with Berdahl's girlfriend.  And since there was no other evidence to justify the search, and no policy testified to that would require such a search, the search was not constitutionally permissible on safety grounds.

   On the other hand, the court of appeals didn't exactly like the trail court's reasoning on the issue of consent.  The court of appeals pointed out that the question shouldn't have been whether or not the encounter was consensual, but whether or not the search itself was consensual.  The case was sent back to the lower court for a hearing to determine that issue, which will decide the outcome of this case.

   But either way, we all get stuck with this decision.  The damage is limited to a pretty specific set of facts, but situations like this aren't that rare.  I hope to see this one reversed.  

Colorado Court of Appeals Young v. Hodges 11CA2193

Decision here.

   Hodges is a deputy sheriff who was transporting a couple of handcuffed juvies in a van, didn't seat belt them, and crashed.  The juvies were injured, and their parents sued.  Hodges tried to claim immunity under the Colorado Governmental Immunity Act, which sets the rules for suing the state (or any of its political subdivisions or employees).  Part of the Act says you can't sue the state in its own courts, unless the lawsuit arises from certain exceptions (such as operating a motor vehicle).  Think of it as Qualified Immunity's evil twin from a parallel universe.  Looks similar, works differently.

   Amidst discussion of the meaning of the word "operate," the court of appeals ruled that we can be sued for not seatbelting handcuffed prisoners.  There you go, don't forget to do that.

Tenth Circuit Kaufman v Higgs 11-1390

Decision here.

   The Colorado State Patrol were investigating a hit and run accident (someone hit an unoccupied car in a parking lot), and they had a witness who identified the driver as a woman, the passenger as a man, and gave a license plate number.  Kaufman's license plate number.

   CSP spent a couple weeks trying to get ahold of Kaufman, and eventually talked to him on the phone.  He agreed to meet them at his house later in the day.  When they showed up, he refused to tell them who was driving.  After conferring with their supervisor (who is also a defendant in this case, not that this helps the hapless troopers any), the troopers arrested Kaufman for obstruction.

   In case the troopers aren't the only ones who have forgotten, here's what the relevant portion of the obstruction statute says:

A person commits obstructing a peace officer . . . when, by

using or threatening to use violence, force, physical interference,

or an obstacle, such person  knowingly obstructs, impairs, or

hinders the enforcement of the penal law or the preservation of the

peace by a peace officer, acting under color of his or her official authority...

   So, since not all the elements of this statute were met, the charges were unsurprisingly dropped.  And Kaufman sued.  The troopers filed a motion for qualified immunity, which the district court inexplicably granted.  Kaufman appealed.

   The Tenth Circuit explains that in order to overcome qualified immunity, a plaintiff has to show that the police violated a right, and that the right was clearly established at the time.  People have the right not to be arrested without probable cause.  And unless probable cause was arguable, that right is clearly established.  Applying that to this case: it's well established that people have the right to refuse to answer questions (or even to simply terminate the encounter) during a consensual stop.  Kaufman was simply exercising his rights.  More to the point, there is nothing in the statute which criminalizes his actions, and any reasonable officer would have known that.

   The lower court was reversed, qualified immunity denied.

Tenth Circuit US v. Salas-Garcia 11-2204

Decision here.

   With the help of a confidential informant, police were investigating Castaneda for selling drugs (brokering them, technically, but whatever).  Castaneda was supposed to deliver a lot of cocaine to a hospital parking lot for one such transaction.  Police followed in unmarked cars while Castaneda and Salas-Garcia drove separate cars from a tortilla factory to the hospital (and the officers later testified that using multiple cars like this is a common counter-surveillance technique used by drug dealers).  When the two cars got to the hospital, and parked in different parts of the parking lot, the CI told the police that the drugs had arrived.

   At the investigator's direction, marked cars showed up and stopped both cars.  They didn't conduct high-risk stops, but they did get Salas-Garcia out of the car, handcuff him, and search him (whilst informing him that he was not under arrest, but only being detained for an investigation).  Salas-Garcia was read the Miranda warnings, after which he admitted that there was a kilo of cocaine in the car he was driving.

   Salas-Garcia was released from handcuffs after about 5 minutes and told he could leave, but he agreed to stay.  Officers obtained a warrant and searched his car, found the drugs, and arrested him.  He later argued in court that his detention had been an illegal arrest and that the drugs and his statements should be suppressed as fruit of the poisonous tree.  The motion was denied, and he appealed.

   The Tenth Circuit held that Salas-Garcia's detention was both reasonable at its inception and reasonably related in scope to the circumstances which justified it.  The court also noted that the use of handcuffs does not necessarily convert a detention to an arrest (for fourth amendment purposes)*, and that particularly in this case where the officers were investigating a large drug transaction, where large drug transactions often involve guns, and where there were numerous other members of the public present, using handcuffs to restrain Salas-Garcia was reasonable (the court hinted that actually proning him out at gunpoint might not have been reasonable without more information, but didn't come right out and say that).  The denial of the motion to suppress was upheld.

* This is important because if the stop were converted to an arrest, it would need to be justified by probable cause which the police did not yet have, so the evidence would need to be suppressed.  It's also worth noting that the court pointed out that a Terry stop which exceeds its scope is converted to an arrest, and therefore must be justified by probable cause.

Tenth Circuit US v. Bagby 11-5050

Decision here.

   Tulsa police received a tip that Bagby was selling cocaine out of his house.  Plainclothes officers set up surveillance, and when they saw Bagby leave in a car they followed him.  Bagby committed a number of moving violations, so they called for a marked car to make a traffic stop.  That happened.

   While the traffic stop was going on, the plainclothes guys went bag to Bagby's house to do a knock and talk.  The owner of the house (who allowed Bagby to live there) allowed the officers inside and consented to a search of the house.  The officers searched, but they stayed out of Bagby's room because it was Bagby's room and he wasn't there to consent.  Meanwhile, the officers on the traffic stop somehow developed information that Bagby stored cocaine in the unattached garage (probably because Bagby didn't know when to STFU).  The plainclothes officers received consent to search the garage (and a key to the garage) from the homeowner, who told them that he doesn't go in there much.  They found cocaine base.

   The officer on the traffic stop was told to bring Bagby back to the house.  He did, and the cops read him Miranda (which he waived).  For the remainder of the investigation, Bagby said a lot of shit that he probably later regretted.  He tried to bribe the police (he told them if they just took the money and drugs and left, he wouldn't say anything), told them where in the house to find more money and drugs, and when one officer asked him about the food he steals from children's mouths by getting their parents hooked on cocaine (really, officer??), Bagby mentioned the food that he provides by selling cocaine.  He also bragged of his drug measuring prowess, and specifically admitted to ownership of the cocaine.

   After helping the police to build such a strong case against him, he took the case to trial for some reason (where he represented himself).  Go figure, he was convicted.  He appealed his conviction on several grounds, but the only one that's all that important here is that he argued the evidence presented was insufficient to support his conviction.

   The prosecution had relied on a constructive possession theory.  Constructive possession (as opposed to actual possession) means that someone exercises dominion or control over an item even though they may not be currently holding it.  Here's how the trial court summed it up in jury instructions:

A person who, although not in actual possession, knowingly has 

both the power and the intention at a given time to exercise dominion or 

control over an object, either directly or through another person or persons, 

is then in constructive possession of it.

More than one person can be in possession of an object if each 

knows of its presence and has the power and intention to control it.

A defendant has joint  possession of an object when two or more 

persons share actual or constructive possession of it.   However, merely

being present with others who have possession of the object does not 

constitute possession.

In this situation where the object is found in a place (such as a room 

or a car) occupied by more than one person, you may not infer control over 

the object based solely on joint occupancy.  Mere control over the place in 

which the object is found is not sufficient to establish constructive 

possession.   Instead, in this situation, the government must prove  some 

connection between the particular defendant and the object.

   So in this case, the government relied on such evidence as Bagby's admission that he owned the drugs to prove a connection between Bagby and the drugs.  Bagby's argument at trial was that it turned out the drugs were actually someone else's, and the police just never found the drugs which he had admitted to owning.  That argument went exactly as far as you would expect, and Bagby's conviction was affirmed.

Tenth Circuit Martinez v. Carson 11-2095

Decision here.

   Employees of the New Mexico DOC were participating in a task force with members of the Rio Rancho Police Department, patrolling a high-crime area at night (who lets DOC employees go on patrol?  No offense to them, they're good at what they do, but what they do isn't that).  The DOC employee saw three guys standing in the dark outside an apartment building (actually, one of them was crouched down), and so they conducted a high-risk stop.  

   Yep.  I hope there's more, but as far as the court record knows these three guys were gunpointed, searched, and handcuffed for being in a dark area.  At night.  The DOC employees then turned the "suspects" over to members of the police department, who arrested them for something (the decision doesn't tell us what).  The "suspects" eventually sued both the DOC employees and the police officers, since this whole arrest was based on a stop which was not based on probable cause.  Of course, everyone tried to claim qualified immunity, and of course it didn't work.

   The cops ended up settling with the plaintiffs, but the DOC employees took it to trial.  And lost (each of the plaintiffs won $5k, half of which was punitive damages).  One of the issues that came up in the trial was whether or not the DOC employees could be held liable for the continued unlawful detention at the hands of the police department, or only for the first few minutes of unlawful detention before they transferred custody of the "suspects" to the police.  The trial court had only held the DOC guys accountable for their own actions, and after winning the trial the plaintiffs appealed that portion of the verdict.

   The tenth circuit held that if it hadn't been for the illegal actions of the DOC employees, the "suspects" would not have been subsequently illegally detained by the police, and that the DOCS guys really should have known that.  The case was remanded for a new trial limited to the issue of how much of the later illegal detention the DOC guys were responsible for, meaning that even though they've already lost they could still be even more liable.

   So if you make an illegal stop, consider yourself to have potentially bought whatever happens to the person you stop after that (even if you turn them over to someone else).

Colorado Court of Appeals People v. Wilson 10CA0788

Decision here.

   Wilson raped a woman at gunpoint, and was caught five years later because of DNA evidence.  He was convicted, and he appealed for various reasons.  His conviction was reversed and the case remanded for a new trial because of some issue with jury selection, but the court of appeals also addressed some other arguments to prevent them from coming up again after the new trial.  The only one that matters to this blog is a Miranda issue.

   Part of Wilson's defense is that he was never in Colorado, and so the prosecution presented some evidence that he had ties to the state.  A deputy who was transporting Wilson from California to Colorado had asked him a few questions during the transport about whether or not anyone knew he was going to Colorado, and whether certain family members in Colorado would accept collect calls.  Useless information, normally, and the deputy testified that he asked these questions just to make small talk, so he could ascertain Wilson's level of cooperation.  

   It is undisputed that Wilson was in custody.  It is also undisputed that he had not waived Miranda.  So the question is whether or not the deputy's questions amounted to interrogation.  Interrogation has been interpreted by the courts to mean any words or actions by the police which are likely to elicit an incriminating response.  Interrogation specifically does not include questions that are just part of the arrest procedure (like name, address, etc), but it also doesn't include small talk or casual conversation.  I don't think I'd want to push that particular point, because it seems like it would be tough to convince the court that chatting with a suspect wasn't an attempt to gain information.  However, in this case it was pretty obvious: the deputy wasn't part of the investigation at all, he was just a transport officer.  He really had no way of knowing that the answer to a question like "does your wife accept collect calls from you?" would become evidence in a rape trial.  His small talk did not amount to interrogation, so the statements were properly admitted at trial.

Colorado Court of Appeals People v. Williams 10CA2045

Decision here.

   Williams participated in a drug rip at a tattoo shop.  He and one of four co-conspirators went into the tattoo shop through the back door, threatened the three occupants (the owner/drug dealer, the owner's wife, and some other person) with guns, and told them to get on the ground.  The owner put up a fight, Williams shot him, and he died.  The suspects searched the shop and stole some drugs, along with some money from the owner's pockets, and left.

   Williams was eventually convicted of felony murder, along with three counts of aggravated robbery (robbery is charged one count per victim, rather than per stolen item).  He appealed on several grounds, two of which will be discussed here.  There was a weird little fruit of the poisonous tree issue, and a question of whether his conduct actually met the elements of aggravated robbery.

   Fruit of the poisonous tree: some of the evidence presented against Williams was the testimony of one of his associates, which came to the attention of the police through a traffic stop in Oregon.  Basically, Williams was the passenger in a car which was stopped for speeding in Oregon (this was sometime after the murder).  The driver didn't have a license, so the police asked Williams for his ID so they could decide whether to let Williams drive or tow the car.  Williams gave a fake name, but didn't match the physical description associated with the name he gave (oops).  When confronted with this, he gave a second fake name.  While giving his second fake name, he claimed to have forgotten his middle name.

   The Oregon officer, apparently deciding that enough is enough, arrested Williams.  That led to the discovery of Williams' real identity, and then a Denver officer learned the identity of the driver of the car from the Oregon officer's report, and the driver of the car (who apparently also had knowledge of the murder) later testified against Williams.  In appealing his conviction, Williams argued that he was illegally detained by the Oregon officer, who did not have reasonable suspicion when he asked for Williams' ID, and that this illegal detention was the only reason that the Denver police learned the driver's identity, and so the driver's later testimony about the murder should be suppressed as fruit of the poisonous tree.  Pretty convoluted, right?  Anyway, the Court of Appeals observed that officers do not need reasonable suspicion just to ask someone for their ID, but that when it becomes obvious that someone is giving a fake name (like when they forget their middle name, or don't match the physical description), then that creates probable cause to arrest.  This means that the Oregon officer did not illegally detain Williams, and so the fruit of the poisonous tree doctrine doesn't apply.

   Now on to the agg robbery issue... robbery involves taking something from the presence of another by force or intimidation.  The courts have held that "presence" for robbery purposes isn't a question of line of sight, but one of the victim's control over the property taken.  This means that the victim has to have some authority over the property in question, and that the victim's present influence over the property must be sufficient that they would have been able to keep it if it weren't for the suspect's threats or intimidation.  In this case, the court held that the drug dealer and his wife both had authority to control the money in his pockets, and were both exercising some control over it.  On the other hand, the third person in the shop had no authority over money in the drug dealer's pockets, so she wasn't actually a victim of aggravated robbery (there are other crimes that could have been charged instead, but not agg robbery).  So one of Williams' three robbery convictions was reversed, everything else was affirmed.

Colorado Court of Appeals People v. Poe 10CA2541

Decision here.

   Poe's parole officer searched his apartment while he away.  The PO found meth, weed, and some paraphernalia.  Poe returned during the search, and was arrested.  He was eventually convicted of possession of a controlled substance.  He appealed his conviction, arguing that the evidence was insufficient to support his conviction.

   At the trial, Poe had argued that the drugs belonged to a friend who had brought them over without his knowledge.  He even had a letter that his mysterious friend wrote to the court, claiming ownership of the drugs.  In order to support a conviction for possession, the prosecution has to show that the defendant knew he was in possession of the controlled substance and intended to possess it.  These things can be proven by circumstantial evidence (such as the defendant's dominion and control of the premises), but there has to be more than just the simple presence of the contraband.

   In this case, the meth was found in a laptop in the bedroom, the weed was found under the mattress, and there was a scale hanging on the wall and a pipe sitting on top of the toilet tank.  There was no evidence of a houseguest (particularly no evidence of a female houseguest, and Poe's mysterious friend was a woman).  The location of the items in Poe's one bedroom apartment, the fact that some of the items were in plain sight, and the lack of evidence of a female houseguest were held by the court to be sufficient to establish that Poe knowingly possessed them.  His conviction was affirmed.

Colorado Court of Appeals People v. Sampson 10CA2544

Decision here.

   Sampson conspired with his roommates (who were cashiers at a grocery store) to steal groceries by going through their checkout aisle without paying.  He took about $2000 worth of groceries this way, and was eventually convicted of theft and conspiracy to commit theft.  He appealed his conviction, arguing that since the agreement with his roommates didn't specifically address the value of the items, the elements of conspiracy to commit theft ($1000-$20000) hadn't been met.

   This, of course, is ridiculous.  One doesn't have to be conscious of the actual value of an item in order to commit the crime of theft, so one doesn't have to agree on the value of the item to commit the crime of conspiracy to commit theft.  Conviction affirmed.

Tenth Circuit Storey v. Taylor 11-2180

Decision here.

   This is a long one, but it touches on a lot of important issues.  I'd suggest reading the actual decision.

   Taylor was a cop in Los Lunas, NM who responded to a call of a domestic at Storey's house.  The call was from an anonymous neighbor (which should set off big red flags.  We all know that anonymous complaints are next to worthless), and alleged only a loud argument (red flag #2: that's not necessarily a crime and doesn't support much of a safety argument).  The cops showed up, and didn't hear any disturbance (#3).

   Taylor knocked on the door, and Storey answered.  After being ordered to talk (sigh...), Storey admitted to being in an argument with his wife, who he said was no longer present (and she wasn't.  She returned while the officers were speaking to Taylor.  They would have seen her drive into an attached garage, and there was nothing about her appearance which suggested she was endangered.  The police didn't talk to her until after the call went wrong, though).  At some point, Taylor ordered Storey to step out of the house, and Storey refused.  Storey asserted that he had a right to stay in his house, Taylor ordered him to step outside or be arrested, and after they went back and forth a bit Storey found himself in the front yard in handcuffs.  He was charged with resisting.

   Anybody here think this sounds good?  Give yourself ten demerits. 

   Storey sued Taylor, who tried to invoke qualified immunity.  Storey's argument is that his arrest out of his home violated the Fourth Amendment because it was not justified by exigent circumstances or a warrant.  Taylor argues that the arrest was justified either by exigent circumstances or by the community caretaker exception   The case made its way to the Tenth, and here we are.  The Court recognized some crucial points from previous case law:

   In order to justify a warrantless entry into a home, the police need one of two things: either consent (clearly lacking in this case), or exigent circumstances.  In order to make entry into a home to either detain or arrest someone, the police need exigent circumstances and probable cause (not reasonable suspicion, probable cause.  The home is a big deal to the Fourth Amendment).  Probable cause exists where "a substantial probability existed that the suspect committed the crime, requiring something more than a bare suspicion."  In order to establish exigent circumstances (particularly as they relate to a danger of injury), the police need to show that they have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and that the manner and scope of their search is reasonable.  

   That leaves community caretaking... the courts have recognized that police actions don't always fall under the normal umbrella of criminal investigation.  Sometimes they are justified by functions wholly separate and apart from detecting, investigating, or acquiring evidence of a crime.  That can include giving people rides, towing abandoned cars, and restraining drunks.  In order to detain someone based on the community caretaking exception, the police have to show that their actions are based on specific, articulable facts which justify the intrusion into someone's liberty, that the governmental interest at issue outweighs the person's interest in liberty from arbitrary government action, and that the detention is no longer than necessary and specifically tailored to the facts which justified it.

   The court also sees fit to mention that ordering someone to step out of their house does, in fact, count as a Fourth Amendment seizure.  Has to be said.  

   Now, applying all that to the facts of this case: we have an anonymous complaint that wouldn't have justified entry into the house even if it were more credible.  The police find nothing suspicious, and during their investigation they don't learn anything aggravating about the circumstances.  There's no evidence of a crime.  There are no facts which suggest that anyone was endangered, or that the police had any pressing need to do anything at all.  Nothing in this case justified police intrusion into the house (either physically or by giving orders to come outside).  Furthermore, all of the legal contours of this decision were already clearly established.  Taylor's request for qualified immunity was denied.

Colorado Supreme Court People v. Guthrie 12SA80

Decision here.

   Guthrie was charged with DUI, and pled guilty as part of a plea agreement.  While she was getting set up at the probation office, the PO noticed that she was drunk.  She was escorted into the courtroom where she was held in contempt of court.  Apparently, there was some violation in the way the contempt charge was handled by the judge.  That become important later.

   A deputy took Guthrie into custody, and during the booking process her property was inventoried.  She was found to be in possession of Oxycodone for which she lacked a prescription, and she was charged with possession of a controlled substance.  The trial court for that charge recognized that the deputy didn't do anything wrong, but suppressed the drugs found during the inventory because it didn't agree with the contempt of court charge.  The people filed an interlocutory appeal.

   The Colorado Supreme Court didn't address the question of whether or not it was proper to hold Guthrie in contempt of court.  The fact is that she WAS held in contempt, and the deputy was acting properly when he arrested her.  The court observed that inventory searches at the jail don't really involve the warrant requirement or probable cause, they are valid because the government interests in conducting the inventory (including  protecting an arrestee's property while it remains in police custody, preventing claims of lost or stolen property against the police, and protecting the arrestee and others from the risk that a dangerous instrumentality or substance might be concealed in an innocent looking article) outweigh the prisoner's expectation of privacy while confined at a jail.  The court also noted that the exclusionary rule is not a Constitutional right; it's a procedure the courts follow when using it would deter unlawful searches by the police.  Since the police did nothing wrong here, and since the search was justified as a routine administrative property inventory, the suppression of the drugs was reversed and the case was sent back to the district court for further proceedings.

Colorado Court of Appeals People v. Juanda 11CA1226

Decision here.

   Juanda sold drugs to a DEA agent on multiple occasions, and was charged into the state courts.  After his conviction, he was ordered to pay $11k restitution to the DEA for "buy money" that the agents had not recovered at the time of the sales.  Juanda appealed the restitution order, arguing that the DEA wasn't a victim and therefore couldn't receive restitution.

   The Court of Appeals agreed with the district court that the restitution statute authorizes this sort of order, and affirmed the order.

Colorado Court of Appeals People in the Interest of K.W. 11CA1951

Decision here.

   This one is barely worth mentioning, but since this issue made it to an appellate court...

   K.W. is a juvenile who was threatening other kids at school.  The kids she was threatening went to a security guard for protection, and then K.W. and her friend approached them and started acting aggressively towards them.  The security guard pushed K.W. back, and K.W. shouted "Fuck you!" at the guard repeatedly.  Neither the guard nor the other students present were particularly offended by this phrase.  K.W. was eventually convicted of disorderly conduct, under the subsection that reads "A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly makes a coarse and obviously offensive utterance, gesture, or display in a public place and the utterance, gesture, or display tends to incite an immediate breach of the peace."  K.W. argued that since no breach of the peace actually occurred following her coarse and obviously offensive utterances, the evidence was insufficient to support this conviction.

   The court of appeals held that K.W.'s behavior at the time of the incident indicated an intent to breach the peace.  The fact that no further breach occurred changes nothing.  Conviction (or adjudication of delinquency, really) upheld.

Colorado Supreme Court People v. Pittman 12SA101

Decision here.

   Pittman was being investigated for child abuse, and she showed up at the police station voluntarily to take a polygraph test.  She failed, and the polygrapher told her so.  Then she was questioned by the investigating officer in another room for a few minutes, and she made some incriminating statements.  All of this was done with no Miranda warnings.

   Pittman was charged with child abuse and some other crimes.  The trial court ruled that once she was informed that she had failed the polygraph she would not have felt free to leave and therefore she was in custody for Miranda purposes and should have been warned of her rights.  Since she wasn't warned, her statements were suppressed.  The people filed an interlocutory appeal.

   The Colorado Supreme Court reversed the suppression for a couple of reasons.  First, the trial court applied an incorrect legal standard: Miranda custody is not determined by whether or not a reasonable person would believe that they are free to leave.  Miranda custody is determined by whether or not a reasonable person would believe that they have been deprived of their freedom of action to the degree associated with formal arrest.  Quite the mouthful... in loose terms, that just means that we don't have to read Miranda every time we detain someone (although it's still important to note that Miranda custody isn't necessarily what most cops think of as an arrest.  Other decisions have made it clear that Miranda becomes an issue way before we say any magic words, start transporting people to the jail, or sometimes before we even decide whether or not we'll do those things later).  Second, the trial court based its custody decision on one fact without considering the totality of the circumstances.  In this case, the trial court didn't consider things like the duration of the interview, the mood (that's right, the mood!), the lack of restraints, etc, etc.

   Since the trial court applied the wrong legal standard and also failed to consider all the circumstances, the suppression was reversed and the case was remanded back to the trial court to determine whether or not the statement should be suppressed using the correct legal standard.  The Supreme Court didn't make a final determination that the statement was or was not admissible, it just told the trial court "Do that again, only do a good job this time."

Colorado Court of Appeals People v. Doubleday 08CA2433

Decision here.

   Admittedly, this one has limited relevance to cops (since most of us don't really deal with affirmative defenses and their impact on other charges).  But I still thought it was interesting, because it's a murder case and I remember when it was on the news.

   Doubleday robbed a convenience store, and during the robbery he shot and killed the clerk.  At the trial, he claimed the affirmative defense of duress, testifying that members of the Gallant Knights Insane had assaulted him and threatened to kill him and his family if he didn't do a robbery to pay off a drug debt.  A GKI member then drove him to the convenience store, where he accidentally shot the clerk during the robbery.

   He was arrested and charged with (among other things) attempted aggravated robbery and felony murder.  The felony murder statute essentially makes it first degree murder if someone dies (even accidentally) during the commission of a specific list of felonies (including robbery).  Duress is an affirmative defense which states that if someone commits a crime (other than a class one felony, such as first degree murder), but they do so because someone else is making violent threats that a reasonable person would be unable to resist, then they can't be convicted.

   Anyway, the jury bought the duress offense, and found Doubleday not guilty of the attempt robbery by virtue of the threats that the GKI had made.  Still, the jury found Doubleday guilty of murder, and he was sentenced to life.  He appealed, arguing that since he was not convicted of the underlying felony that allowed for felony murder, the murder conviction should also be reversed.

   The Court of Appeals pointed out that felony murder makes it a crime to accidentally kill someone while committing an underlying felony, without actually requiring that the suspect be convicted of that felony (or even charged with it).  Since the prosecution proved all the elements of the attempt robbery, and he was acquitted solely on the basis of an affirmative defense, the felony murder conviction stands.

Tenth Circuit Davis v. Workman 11-6022

Decision here.

   What would Jerry Springer say?

   Davis went out drinking, and when he came home his girlfriend and their daughter were missing.  He called his girlfriend's mother (Jody) a couple times and asked her to go find them.  She couldn't find them, so she came over to Davis' apartment and talked to him about his commitment to Stacey (Davis' girlfriend).  That led to an argument, and Davis made some comment about Jody's husband's affair, but apparently felt bad about the low blow because he tried to comfort her afterwards.  Then Davis and Jody had sex, and got into another argument.  This argument was apparently more serious, Jody cut Davis with a knife and he tried to strangle her and then stabbed repeatedly.  He wrapped her up in a sheet to keep her alive, but she died, so he went to sleep.  When he woke up, he panicked, stole her car, and fled.  Oh, he was still drunk so he crashed the car and wound in the hospital and under arrest for DUI.  Meanwhile, Stacey got home and found her dead mother, called the police, and the police put two and two together....

   So the police interrogated Davis at the hospital (after obtaining a Miranda waiver).  He made some incriminating statements, and he was eventually convicted of murder and sentenced to death.  He appealed.  The Oklahoma Criminal Court of Appeals affirmed his conviction, and the appeals eventually led to the Tenth Circuit reviewing the Oklahoma court's reasoning to decide whether or not he could proceed with further appeals. 

   Most of the issues reviewed aren't really important to cops (things like ineffective assistance of counsel, sufficiency of evidence for a conviction, and whether or not Stacey should have been allowed to testify).  The important stuff is all Miranda related.

   In order for a Miranda waiver to be valid, it must be made knowingly and voluntarily.  In other words, a suspect has to understand the nature of the rights being waived, and has to make a free and deliberate choice to waive the right (free from coercion, intimidation, or deception).

   Davis argued that because of the morphine he was on at the hospital during his first interrogation, he was incapable of understanding his rights.  But the evidence showed that he was having a pretty lucid back-and-forth discussion with the officers, so the Oklahoma court held that he was obviously capable of understanding.  The Tenth Circuit agreed.  During a follow-up interview, the police informed Davis that the evidence indicated he was the killer, and suggested that there were two logical conclusions.  Option A was that Davis was a cold-blooded killer, option B was he didn't mean to kill Jody but a fight broke out and it just happened.  Davis chose option B, but argued in court that the police were coercing him into confessing by calling him a cold-blooded killer.  The Oklahoma court found that the statement wasn't threatening or coercive, and the Tenth agreed again.  Finally, Davis argued that the police coerced him by denying him painkillers, but that argument was plainly refuted by the facts of the case and none of the courts were willing to listen to it.

   The rest of this decision is more important for prosecutors.  To sum of the important parts above: if a suspect seems lucid, that's an indicator of his ability to understand his rights.  Also, the interrogation tactic of presenting alternate theories of guilt (including one which is easier to admit to) is still something that the courts are okay with.

Tenth Circuit Armijo v. Perales 11-2098

Decision here.

   Armijo was the Chief of Police in Columbus, NM.  He oversaw the purchase of six guns, four of which were purchased by the city and two of which were purchased by Armijo (for personal use or as gifts).  Apparently, there was some confusion over a bid sheet listing all six guns while the city's final purchase was only four of the six, but there was no question that the city paid for four guns and received four guns.

   Investigators with the local district attorney's office used this information to apply for a warrant to search Armijo's house (for drugs, financial records, and any stolen or altered guns), as well as a warrant for his arrest (for theft or embezzlement of two guns).  I don't know why they listed drugs and all that nonsense on the warrant, the affidavit didn't conatin any information to suggest that they would find any.

   Surprisingly, the warrants were issued.  They searched Armijo's house, where they found the two extra guns (they seized another gun, too, which wasn't apparently stolen or altered).  Then they arrested Armijo.  Charges were subsequently dismissed, and Armijo brought a §1983 suit against the investigators, arguing that the search and arrest violated his Fourth Amendment rights.  He also argued that the investigation had actually been a retaliation for a report he made about the mayor committing a battery.  The investigators moved to invoke qualified immunity, and the district court denied their motion.  The investigators appealed.

   The Tenth Circuit observed that there was nothing in the affidavits which even remotely resembled probable cause.  The phrase the court kept throwing around in this decision to describe probable cause was  "a substantial probability that a crime has been committed and that a specific individual committed the crime."  Also: "Probable cause is a common-sense standard that requires facts sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed."  The best the affidavit could allege was "confusion," which is a far cry from "substantial probability."

   Given that the affidavit was so obviously flawed, the Tenth agreed with the district court that the warrants violated Armijo's Fourth Amendment rights.  Just as importantly, the court held that a reasonable officer would have known that the warrants violated Armijo's rights, because the information used to obtain the warrants was so clearly deficient.  And it's pretty clearly established that you can't apply for a warrant that doesn't even allege a crime, and use that to search for whatever random crap you think you might find and then arrest someone for whatever you can make up.  Accordingly, the Court affirmed the denial of qualified immunity.

   So there you go; even though applying for warrants is a pretty good shield against liability, it's not an absolute one.  In cases where you know (or really ought to know) that you don't have probable cause, getting a warrant doesn't make your actions any more legal.

Colorado Court of Appeals Long v. Department of Revenue 11CA1646

Decision here.

   A police officer saw Long speeding and weaving in & out of his lane.  He conducted a traffic stop, noticed that Long smelled like alcohol, administered FSTs (which Long did not complete satisfactorily), and arrested him for DUI.  After the officer explained Express Consent, Long chose to take a breath test.

   At the station, the breathalyzer was not functioning properly.  The officer conducting the test turned it off and on again, and it started to work.  At this point, Long refused to take the test because he believed that the breathalyzer was still malfunctioning.  He was served with a revocation of his license.  A DOR hearing officer upheld the revocation, and Long appealed.

   The Court of Appeals observed that the Express Consent statute gives a DUI suspect the opportunity to choose between a blood or breath test, but that if there are extraordinary circumstances (such as a malfunctioning breathalyzer) that would prevent the completion of the test, then the arresting officer can just inform the suspect of the circumstances and then require them to take the other type of test.  It's the cop's job to determine whether there are extraordinary circumstances, not the suspect's.

   In this case, the police had determined that the breathalyzer was properly functioning.  Whether they were right or not isn't material to the case, because Long refused to take the test (but if he had taken the test as required, then he could have challenged the validity in a later hearing).  Long also argued that weaving and driving in excess of the posted speed limit did not justify the traffic stop (the court ruled that these things do justify a stop, and also ruled that an officer's visual estimate of speed was enough to establish reasonable suspicion). 

Colorado Court of Appeals People v. Rhodus 09CA2634

Decision here.

   The reporting party in this case saw a female driving a silver Honda Prelude through her neighborhood.  After the car went around a corner, a man who was never identified walked up to the RP's car and tried to break into it.  The RP and her son yelled at him, and the suspect walked away.  Then the Prelude drove by again, and the police were called.  The RP found that her car door (which she had locked) was now open.

   Police found a silver Honda Prelude nearby.  Rhodus (the female driver) was the only occupant of the car.  When the police approached her, she drove away and led them on a high speed chase.  During the chase, she drove through yards, drove on the wrong side of the street, slammed on her brakes, and generally drove recklessly.  She lost the officers for a moment, but then they found the car.  It was parked, unoccupied, and running with no key (turns out it was stolen).  Rhodus was found nearby and detained.  The officer who had originally tried to contact her recognized her as the driver of the Prelude, and she was arrested.

   Rhodus was charged with First Degree Criminal Trespass for the RP's car (under a complicity theory that she had aided the unidentified male in committing that crime), Theft by Receiveing for the car she was driving, and Vehicular Eluding.  She was convicted as charged.  Rhodus appealed, arguing that the evidence was insufficient to support the charges.

   The Court held that as far as First Degree Criminal Trespass goes, she was right.  Although the door to the RP's car was opened, there was never any evidence presented that the unidentified male actually entered the car.  The Court held that as with burglary, "entry" is defined by the unlawful intrusion of any part of the body (or any instrument attached to the body) into the space within the car.  Just opening the door doesn't meet this standard, so the trespass conviction was reversed.

   The other two convictions were affirmed.  Rhodus argued that the Prelude she was driving was never identified in court as the one which was stolen.  Oddly, the prosecution never presented any evidence of VIN numbers or other vehicle identification, but the facts they did present were enough (including the timing of the theft of the Prelude and Rhodus' apprehension; and also Rhodus' conduct in driving without a key, fleeing from officers, attempting to conceal the Prelude, and abandoning it.  Rhodus' conduct was held to be sufficient to demonstrate that she knew the car was stolen and intended to permanently deprive the rightful owner of it).  She also argued that her driving wasn't risky enough to meet the elements of eluding because there was no other traffic or pedestrians, but the court didn't buy it.

Colorado Court of Appeals People v. Tunis 09CA0593

Decision here.

   This one isn't all that relevant to most of what the police do, but it's funny.  And I'll keep it short.

   Tunis was convicted of sexual assault on the basis of DNA evidence.  He appealed his conviction, arguing that the science behind this particular type of DNA evidence was unreliable.  He also argued that he had been denied a jury of his choice because the trial court had removed a juror who got caught sleeping and replaced that juror with an alternate.

   The court didn't humor this bullshit, and the conviction was affirmed.  I'm just shaking my head that the defense strategy on appeal was to argue that Tunis' fate should have been decided by someone who slept through the trial.

Colorado Court of Appeals People v. Childress 08CA2329

Decision here.

   Childress bought alcohol for a party where he and his 17 year old son got really drunk.  His three year old was there too.  After the party, he, his two kids, and his son's girlfriend drove from Lakewood to Aurora (Childress drove), and there was apparently some recklessness and minor accidents along the way.  When they got to Aurora, they found out that someone had pulled a gun at the party in Lakewood, so they decided to go back.  This time, Childress' older son drove, and there was more recklessness, and a much more serious accident (vehicle vs. building resulting in serious bodily injury).

   Childress was charged with DUI, vehicular assault, child abuse, and some other stuff.  He was convicted of most of it.  The DUI and vehicular assault charges were brought against him under a complicity theory. In defining complicity, 18-1-603 says:

A person is legally accountable as principal for the
behavior of another constituting a criminal offense if,
with the intent to promote or facilitate the commission of
the offense, he or she aids, abets, advises, or encourages
the other person in planning or committing the offense.

   Previously, the state supreme court has held that complicity requires a dual culpable mental state: it requires that the person charged under complicity have the same culpable mental state that is required in the statute for the crime being committed, and also that the person charged under complicity intend that is conduct promote or aid the person committing the crime.  Now, vehicular assault is a strict liability offense, meaning that there is no culpable mental state required.

   The Court of Appeals held that since vehicular assault (at least under the DUI section) is a strict liability offense, you can't charge someone with vehicular assault under complicity because there is no culpable mental state to prove.  (I don't really understand what the court is doing here.  I don't see anything in the statute that requires this, but their decision is based on a decision of the supreme court, so that's just the way it is).  Accordingly, Childress' vehicular assault conviction was vacated.

   There was apparently a problem with the jury instructions on child abuse, so the case was remanded for a new trial on those charges.  Childress' other convictions were affirmed.

Colorado Court of Appeals People v. Zweygardt 1-CA1714

Decision here.

   Zweygardt was speeding, ran a stop sign, and hit an SUV with a mother and her two children.  Mother and one child died, the other child suffered severe injuries.  Zweygardt was charged with various crimes including criminally negligent homicide, vehicular homicide, vehicular assault, and careless driving resulting in death.  His defense at trial amounted to "I didn't mean to run the sign, and I tried to stop."

   The jury convicted him of most of the charges, but acquitted him of a few random ones (for example: he was charged with two counts each of careless resulting in death and negligent homicide.  He was convicted of both counts of careless, but he was convicted of negligent homicide only as it applied to the mother and not as it applied to her dead child.  The jury deliberations on this one must have been very strange).  Zweygardt appealed his convictions, arguing that careless driving is a lesser included offense of vehicular assault.

   The Court of Appeals explained that a crime is a lesser included offense of another if 1- Proving all of the elements of the greater offense would also prove all of the elements of the lesser offense, 2- The lesser offense involves attempt or solicitation to commit the greater offense, or 3- The lesser offense is identical to the greater offense except that it doesn't require as severe a loss or injury.

   In this case, the elements of the various crimes don't match.  For one thing, they involve different definitions of vehicle (one can commit vehicular assault in a boat or a plane, but careless driving requires something designed for use on a roadway).  For another, one requires the operation of a vehicle, the other requires driving.  Apparently, those don't mean the same thing... someone who is driving a vehicle is also operating it, but you can operate a vehicle without also driving it (I'm not kidding).  The court didn't really explain how to operate without driving, but did specify that neither operating nor driving necessarily involves movement.

   The decision also contains some discussion of culpable mental states, and explains that even if it didn't make sense to convict Zweygardt of one count of negligent homicide but not the other, it doesn't matter as long as all of the convictions are consistent with each other.  Zweygardt's convictions were affirmed.

Sorry for the delay

   So The Honorable Court has been taking a bit of a break lately, because I've been going through some shit.  My personal life has been turned on its ear, and my professional life has been even more chaotic.  I'm pretty sure all is well, though, so hopefully sometime in the next week I'll have a moment to go through my backlog of.... holy crap!  38 or so cases.  The Supreme Court Justices are all playing golf or something, so I'll blame the Tenth Circuit for however many sleepless nights it takes to read all of that.

   Anyway, for those of you who like to stay on the bleeding edge of Colorado-binding case law, sorry for the delay. 

Colorado Court of Appeals People v. Kovacs 11CA0950

Decision here.

   I tried to keep this summary short and sweet, you may need caffeine anyway.

   Kovacs was indicted by a grand jury for forgery after he added a fictitious "Certification of Appraisal" to some appraisal paperwork that he prepared for various lenders (thankfully, that is all the information we need to discuss about what I'm sure was a riveting investigation).  He filed a motion with the district court to quash the indictment, and the indictment was quashed because the court held that adding false information to a document did not necessarily meet the elements of forgery (since it didn't transform the document into a completed or altered instrument).

   The Colorado Court of Appeals held that adding materially false information to any instrument (whether genuine or not) and thereby purporting to complete said instrument does, in fact, meet the "falsely completes" element of forgery.  In other words, someone can commit forgery by adding false information to otherwise legitimate documents with the intent to defraud.

Colorado Court of Appeals Francen v. Department of Revenue 10CV798

Decision Here.

   A police officer saw the passenger of a car get out at a red light and try to contact the driver of another car.  Then the passenger got back into his own car, and the when the light turned green the cop stopped the car.  Francen (the driver) was drunk.  He was arrested, and at a DOR hearing his license was revoked.  Francen appealed the revocation of his license, arguing (as he did at the hearing) that the stop of his car was illegal because it wasn't supported by reasonable suspicion.  The district court agreed, and reversed the revocation.  The DOR appealed, and the Colorado Court of Appeals ordered the revocation to be reinstated.

   The Court ruled that the exclusionary rule doesn't apply to DOR hearings.  Their reasoning is that the exclusionary rule is a judicially created rule designed to protect the Fourth Amendment (as opposed to being a mandate of the Amendment itself), and that it is generally applicable to criminal cases.  In civil cases like this, it generally isn't applicable (there are some exceptions, but DOR hearings aren't one of them).  The Court didn't exactly reach the issue of whether or not the stop was illegal, although it also didn't challenge the district court's assertion that it was.  Since that issue wasn't decided, this case is of pretty limited use to law enforcement (it's nice from an academic standpoint to know that the exclusionary rule doesn't apply in DOR hearings, but we shouldn't make illegal stops anyway so a decision directly concerning the legality of the stop would have been much more interesting).  Even so, I figured it was worth a couple of paragraphs.