Colorado Court of Appeals People v. Richardson 10CA2488

Decision here.

   Richardson (hereinafter referred to as creepy MF) had a penchant for going down on his great-grand-nephew.  Who was 11.  Gross.

   Anyway, after the great-grand-nephew let his parents know what was going on, they went to the police.  The police staged a pretext phone call, where the great-grand-nephew confronted Richardson (AKA creepy MF) while they recorded the conversation.  Richardson implicitly acknowledged the accusations, and shortly afterwards found himself under arrest.  After signing a Miranda waiver, he admitted to... you know.  

   Richardson was convicted, and appealed.  His arguments were:

1- The phone call should have been suppressed.  Although he acknowledged that the police can record phone calls if one party consents, and although he acknowledged that his great-grand-nephew consented, he argued that his great-grand-nephew was a juvenile and therefore could not validly consent without a parent's presence or written permission.  Much like is the case in Colorado with custodial interrogation of a juvenile.  Unfortunately for creepy MF (but fortunately for justice and everyone else), the court recognized that consenting to the recording of a phone call for the purpose of arresting the pedophile SOB who victimized you is in no way similar to consenting to an interrogation for the purpose of getting your own ass in trouble.  So the recorded phone call was admissible in court.

2- He attempted to invoke his Miranda rights prior to signing the waiver.  And by "attempted to invoke," he means that he said "I'm not gonna spill my guts or anything."  Obviously, this is not an unequivocal invocation of ones right to counsel or to remain silent.  Hell, this isn't even a hint at either of those.  And so this argument also fails.

   Creepy MF's conviction was affirmed.

Colorado Court of Appeals People v. Dutton 11CA1456

Decision here.

   Dutton was an HTO who drove recklessly to avoid a traffic stop whilst driving in a car that he may or may not have owned (he was in the middle of a civil dispute over it).  Later, he would speak via phone to the officer who tried stop him and say some things that he would live to regret at the trial.  That same officer also picked Dutton out of a photo lineup as the driver.

   Whoever heard of showing a cop a photo lineup?  

   Anyway, Dutton appealed his conviction.  He argued that testimony about the phone call should not have been admitted as evidence because it was insufficiently substantiated as coming from him.  The rule in these things is that when a caller identifies themselves as a certain person, and this identification is supported by circumstantial evidence (such as the timing of the call, or the caller knowing things about the case that the suspect would know), then that's good enough to get the phone call admitted at trial and then the jury can decide if they think the call was legit.  So the call was admitted.

   Dutton also argued that the evidence wasn't enough to show that he was driving recklessly.  The court of appeals ruled that even though the pursuit only lasted a couple of blocks, the multiple traffic violations and the fact that he almost hit a pedestrian were enough to support the elements of reckless driving.  Anyone surprised by this?

   Convictions affirmed.

US Supreme Court Prado Navarette v. California 12-9490

Decision here.

   Lorenzo Prado Navarette & Jose Prado Navarette were driving down the highway when an anonymous RP called and said that they had run her off the road.  She gave their location, vehicle description, direction of travel, and license plate.  15 minutes later, a highway patrolman found them a few miles down the road.  He made a u-turn and pulled them over five minutes after that.  The police never observed any bad driving.

   When the officers approached the truck, they smelled marijuana.  There was 30 lbs in the truck bed.  After being convicted of transporting marijuana, the Prado Navarettes appealed.

   They argued that the stop was made without reasonable suspicion because the RP was anonymous.  The Supreme Court compared this case to Florida v. JL and Alabama v. White, both of which involved anonymous RPs.  In JL, someone called to say that a kid standing at a bus stop had a gun.  JL was contacted and searched, and had a gun.  The court would rule that the stop was made without reasonable suspicion because there was no reason to believe the anonymous tip was reliable.  In White, an anonymous RP called and said that a woman was going to drive a brown Plymouth station wagon with a broken taillight from a particular apartment to a particular motel, and that she would be carrying cocaine.  She was stopped, searched, and had cocaine.  The court would rule that this tip was more reliable because the RP obviously had a special familiarity with the woman's affairs, implying that they had access to information about her illegal activities.

   In this case, the court ruled that because the RP called in and reported something which they had apparently just witnessed, and gave an accurate description of the suspect vehicle which was found just down the road shortly afterwards, and called in on a recorded 911 line (which also means that the police would have had access to her phone number and approximate location), this tip was sufficiently reliable to establish reasonable suspicion.  The court acknowledged that this was a close call (in fact, four out of nine Justices disagreed with it and would have suppressed the evidence), but the stop was held to be valid.  The Prado Navarettes' convictions were affirmed.

Tenth Circuit US v. Romero 13-2019

Decision here.

   Romero and a bunch of his friends met a couple of other guys (one of whom is Mr. Friday, the victim in this case) at a Sonic Drive in one night.  They apparently hit it off, because they spent the night driving around, getting drunk at casinos, nearly getting in gunfights, and generally making asses of themselves.  Eventually, Romero dropped off Mr. Friday's friend at home, and then he and his friends (and Mr. Friday) continued their night of drunkenness and good will towards all.

   A few hours later, Mr. Friday was dead of a couple of shotgun blasts to the head.  He was found a couple miles from where Mr. Friday's friend was dropped off.  After talking to Mr. Friday's friend and to the casino security guards, the cops had enough information to identify Romero's car as the one involved.  They got a search warrant for the car, to search for firearms, ammo, blood, tissue, and other murder evidence.  Then they showed up at Romero's place to serve it.

   There are two residences on Romero's lot, and his car was parked between them.  They went to the one in back and knocked on the door.  They were planning on conducting a protective sweep.  They knocked on the door, and Romero's stepfather told them Romero wasn't there.  He gave them permission to do their sweep.  While they were searching the house, they went into Romero's bedroom (where he was sleeping), and found a shotgun along with the hat that he was seen wearing in surveillance footage.  They woke him up, and he agreed to talk to them outside.

   While sitting in the front seat of one of their cars, Romero confessed to killing Mr. Friday.  He admitted that the shotgun in his room was the one he had used, and gave his own consent to a search of his room.  He was convicted at trial of second degree murder after unsuccessfully moving for the suppression of all the evidence from the search of the car and his house.  He appealed.

   Romero argued that the search warrant did not establish probable cause to believe that there was evidence of the murder in his car.  Given that the car was the last place that Friday was seen alive, that Friday's friend knew there was a long gun of some sort in the car, and that the autopsy and crime scene investigation had determined that Friday was killed with a close-range shotgun blast and had been killed somewhere other than where his body was found, the court held that not only was there probable cause to believe that the car held evidence, but the police would have been remiss if they did not seek to search it.

   Romero also argued that the search of his room was unreasonable, since his stepfather didn't have authority to give that consent.  Romero's door did have a lock on it, but it wasn't a lock which was readily apparent from outside the room and it wasn't locked when the cops tried the door.

   As far as third party consent goes, consent is valid if a person either has actual authority to consent to a search or if they have apparent authority.  Actual authority is established by showing that the person either had mutual use of the property by virtue of joint access, or that the person had control over the property for most purposes.  Apparent authority is established by showing that the facts known to the police at the time of the search would lead them to reasonably believe that there was actual authority.

   Under existing Tenth circuit precedent, when a child lives with a parent there is a presumption that the parent has authority to consent to a search of the entire home (it's not absolute, of course.  But the presumption is there).  This presumption also extends to step-children, and although Romero's door did have a lock that might have rebutted the presumption, the cops didn't know that until later.

   The search warrant was held to be valid, as was the step-father's consent to search the house (including Romero's room), and Romero's conviction was affirmed.

Tenth Circuit US v. Kamahele 12-4003

Decision here.

   Technically, the one I'm interested in is US v. Kepa Maumau, 12-4007.  But this decision has five different cases lumped into one decision.  Most of it is really boring droning on about RICO, VICAR, jury instructions, prosecutorial misconduct, and other stuff that doesn't really make a lot of difference on the street.  I hate reading cases like this one.

   But buried under all that is a few paragraphs about a photo array.  Kepa Maumau was identified as one of the suspects in a series of robberies after being identified in a photo lineup with six pictures.  Maumau argued that the lineup was unduly suggestive, and both the trial court and the Tenth Circuit found that it was not.  The Tenth Circuit went on to say that even if it had been, reversal would not have been warranted because of the reliability of the victims' identifications of Maumau.

   The two important questions regarding photo lineups are 1- Whether it was unduly suggestive (which is defined by whether or not it creates a substantial likelihood of misidentification), and 2- if the lineup is unduly suggestive, whether or not an identification is still reliable in view of the totality of the circumstances.

   The first question (undue suggestiveness) is where the court addresses things like the number of photographs in the array, the details of the photographs, and the way that the police present the lineup.  Regarding numbers, there's no hard and fast rule (although six is a small enough number to weigh slightly in favor of suggestiveness without being per se unconstitutional).  The manner of presentation is pretty simple: let the witness know that they don't have to make an identification, and don't do anything to direct the witness' attention to the suspect's photograph.  

   The second question is the really interesting one.  Factors that the court considers when determining the reliability of an identification (in spite of the suggestiveness of a lineup) include: the opportunity of the witness to view the suspect during the crime, the witness' level of attention during the crime, the accuracy of the witness' prior description of the suspect, the level of certainty the witness demonstrated when making the identification, and the time lapse between the crime and the identification.  This isn't an exhaustive list... as I understand it, the inherent reliability of some identifications is the reason that we don't need to show a six pack to someone who is identifying a personal acquaintance as a suspect, or why doing a show-up with a suspect apprehended just down the street is permissible.

   Anyway, in this case the identifications were held to be reliable (and the lineup wasn't unduly suggestive anyway).  And all of the other boring crap also worked out in the prosecution's favor.  All convictions affirmed.

Tenth Circuit US v. Pulliam 13-1026

Decision here.

   I'm a little behind, so I'm going to try to be brief with a lot of these.  Especially stuff like this decision which doesn't really change anything.

   Pulliam was charged federally with being a felon in possession of a firearm after a search of his house (with a warrant) led to the discovery of said firearm.  He moved to suppress the search, making a handful of stupid arguments.  He argued that there was no PC in the affidavit because the informant the information came from was untested (the informant in question was identified to the police, was facing his own charges, and was giving up his fellow burglars in return for lenience.  He had already led police to stolen property in other places).  The court disagreed.  He argued that the search was unreasonable because the police didn't give him all the attachments to the warrant.  The court recognized that it probably would have been better for the police to do that, but that this doesn't make the search unreasonable.  After all, it's not like Pulliam would have been entitled to monitor the search to ensure compliance with the warrant... contesting a search is something to be done after the fact in court.  And he argued that the items to be seized were not particular enough, since it included "any and all firearms."  The court held that since Pulliam was a felon, and therefore any firearm would be contraband for him, this description was sufficiently particular.

   Anyway, the search was good and Pulliam's conviction was upheld.