Tenth Circuit US v. Mabry 12-3036

Decision here.

   Mabry was on parole in Kansas, and subject to standard parole conditions.  These included a provision that he was required to seek permission to leave the state, and another that he (and his residence) were subject to search by a parole officer or designated law enforcement officer.  Whilst so restricted, Mabry was contacted in Utah by a highway patrol officer.  He was the passenger in a car which was transporting a lot of marijuana, and although the driver was arrested, Mabry was not.

   When Mabry's PO learned about this, he issued an order for Mabry's arrest.  A parole officer and a couple of cops went to the last address that Mabry had listed as his residence (which was his girlfriend's house).  She answered the door and told them that Mabry was in the shower, but then they saw him walk into the room behind her.  They made entry, arrested Mabry, and then searched the house.  During the search, they found a gun in the basement.  

   Mabry was charged with possessing said gun, and moved to suppress it as the fruit of an illegal search.  The district court denied his motion, so he pled guilty and then appealed.

   The Tenth Circuit held that because parolees have a diminished (or even absent) expectation of privacy, and because the government has an overwhelming need to supervised parolees to prevent them from committing more crimes, the search was valid under the totality of the circumstances.  And although a search of a parolee's home must be reasonable in order to comply with the Fourth Amendment, that kind of search does not have to be based on probable cause (or even reasonable suspicion) if it is specifically authorized by state law.  In Kansas' case, the law requires reasonable suspicion of a parole violation in order to justify this kind of search.  The fact that Mabry was contacted out of state without his permission (and in a vehicle involved in drug trafficking) established reasonable suspicion.

   The denial of the motion to suppress was affirmed, and Mabry's conviction stands.

Colorado Court of Appeals People v. Jauch 10CA0588

Decision here.

   Someone's backpack was stolen, along with a computer and a credit card which were in it.  Later, Jauch used the credit card at a gas station and a restaurant.  The police identified her by talking to witnesses who either knew her or described her clothing and vehicle, and by watching surveillance.

   The police obtained a search warrant for Jauch's house.  The warrant identified several items to be seized, including two wallets, a credit card, checks, a rag, receipts, and a turquoise v-neck shirt with ruffles.  The investigator who wrote the affidavit for a search warrant forgot to mention the reason why he wanted to seize the shirt (it was the description given by the witnesses of the suspect's shirt), but the probable cause to search for everything else was clearly stated.

   The police executed their search, and one of the officers assisting with the search found the shirt.  After the investigator affirmed that this was the search he was looking for, the officer seized it.

   Jauch was eventually convicted of theft and identity theft, and appealed her conviction.  She argued that the shirt should have been suppressed since it was not mentioned in the warrant affidavit.  The people argued that the shirt was admissible under the plain view doctrine.

   The court held that although the people didn't establish exactly where in the house the shirt was found (just that it was in the center of one of the rooms), any place that the shirt might have been would also be capable of hiding a wallet or credit card.  The shirt itself was also capable of hiding one of the items mentioned in the warrant affidavit.  So the police had lawful right of access to the shirt during their search.  And the shirt wasn't actually seized when the officer simply lifted it up to show the investigator, it was only seized when Jauch's possessory interest in the shirt was interfered with (which is to say, when the police took it with them when they left).  And since the investigator had probable cause (based on witness statements) to seize the shirt, and since the investigator told the officer to seize the shirt, the seizure of the shirt was lawful under a combination of the plain view doctrine and the collective knowledge doctrine.

   The admission of the evidence and Jauch's conviction were upheld.

Tenth Circuit US v. Brooks 11-3317

Decision here.

   As two tellers were opening the Security Bank of Kansas City, the bank was robbed at gunpoint.  The suspect was wearing a mask, and he bound the tellers hand and foot with plastic ties, and got away with more than $200,000.

   One of the tellers got divorced a year later.  After the divorce, her ex-husband told the police that he thought the bank robber was Brooks, the guy his ex-wife had been sleeping with at the time.  Police obtained a DNA profile for Brooks, which turned out to match the suspect DNA which had been recovered from one of the plastic ties (the defense would try unsuccessfully to convince the jury that this was because Brooks and the teller had had sex the night before).  Other evidence also suggested Brooks' guilt: he was flat broke before the robbery, but was seen in possession of large sums of cash in the months following the robbery.  He matched the physical description of the suspect.  And he was in constant phone contact with his lover in the weeks leading up to the robbery (right up to the moment of the robbery), then stopped for three months, and then resumed constant phone contact.

   Brooks was convicted of the robbery.  He appealed his conviction.  The arguments relevant to this blog are: 1- the chain of evidence for the plastic ties was broken, and therefore the DNA should have been suppressed; 2- the testimony of the government's DNA expert should have been suppressed; 3- evidence that he possessed large amounts of cash should have been suppressed because it was irrelevant; and 4- the evidence was insufficient for a reasonable jury to convict him.

   As far as the chain of custody goes, the first responding officer cut the zip ties off of the tellers, and let the ties fall to the ground.  He didn't guard them afterwards, and didn't know who eventually collected them.  The officers who did collect them also testified at the trial, though.  Brooks' argument was that the zip ties could have been unintentionally tampered with during the time between cutting them off of the tellers and collecting them.  The court noted that the chain of custody need not be perfect for evidence to be admissible.  Where the chain of custody has deficiencies, those speak to the weight of the evidence rather than its admissibility.  So the zip ties were admissible.

   Regarding the government's DNA expert (the one who testified that it was extremely unlikely that the DNA on the zip ties was there because of the teller's sexual contact with Brooks), Brooks argued that her testimony should be supressed because she said that she did a "general swab" of the zip ties in her report but testified that she only swabbed the tips of the zip ties because she wanted to obtain suspect DNA rather than victim DNA.  She acknowledged in court that the phrase she used to describe the test might cause a different technician to misunderstand what test she had performed.  The court held that this minor semantic difference didn't merit suppression.

   And the large amounts of cash... Brooks' argument was that his possession of lots of cash months after the robbery was irrelevant because he could have got the money from somewhere else.  Not that there was any evidence presented that he got the money from somewhere else, but he could have.  The court noted that since the robber got away with a pretty substantial amount, it was likely that he would still have a lot of money a few months later.  This evidence was also admitted.

   And although Brooks argued that the evidence against him was insufficient for a conviction, the court described the evidence as "pretty compelling."  His conviction was upheld.