Colorado Court of Appeals People v. Cardenas 11CA1954

Decision here.

   Cardenas was pimping a 17 year old and an 18 year old.  He got caught when the 18 year old got arrested, and was convicted of pimping an adult, pimping a child, pandering a child, inducing child prostitution, and trafficking in children.

   On appeal, his conviction for trafficking in children was reversed, because that statute prohibits the sale or lease of a child, but not of a child's services. Given that he wasn't selling the girl into slavery, the statute doesn't quite apply.  His other convictions were affirmed.

Tenth Circuit Booker v. Gomez 12-1496

Decision here.

   This a qualified immunity case, so it's important to note that the court is currently resolving all factual disputes in favor of the plaintiff (Mr. Booker's estate).  It's possible that should this case eventually go to trial, the court will find that the below facts are not actually true.  On the other hand, there is video evidence in this case, and even the version of events that the defendants (that is, the officers involved) put forward doesn't look good for them.  This is ugly.

   Booker, a 56 year old man, was arrested for an FTA warrant on a drug charge.  During the booking process, he was apparently uncooperative (the defendants claim that he was cussing at them, but this fact is in dispute).  At some point, he walked away from the officer who was booking him.  She tried to grab his arm, he took a swing on her, and he missed.

   The next part is no surprise: a lot of detention officers took Booker to the ground.  So far, so good.  But during the struggle to restrain him, there were officers controlling each hand, an officer controlling his legs with nunchakus, an officer kneeling on his back (he would later estimate that 75% of his weight was on Booker, which would be more than what Booker weighs), and an officer applying a carotid neck restraint.  That officer would maintain the carotid neck restraint for about two and a half minutes, which is WAY outside of what his training guidelines allow for that technique.  

   The officers were able to handcuff Booker, but continued to maintain the neck restraint, the pressure on his back, and the control of his legs even after he was handcuffed.  While he was handcuffed and at the bottom of a pile of officers, they even called for a taser.  Booker was given an 8 second drive stun, and then carried limply and unconsciously to a cell.  

   He was unresponsive, so they checked on him about 20 seconds after leaving him in the cell.  He was dead.

   Unsurprisingly, his estate sued.  The officers tried to claim qualified immunity, which was denied.  They appealed, and now the Tenth circuit has spoken.

   Since Booker was a pre-trial detainee (already in the jail), the use of force is governed by the 14th Amendment (as a due process violation) rather than the 4th (as a seizure).  It doesn't matter that much, because the facts alleged would be excessive force under either standard, but they are different standards.  Under 4th amendment analysis, the court would consider the objective reasonableness of the force used.  Under 14th amendment analysis, the court considers: 1- the relationship between the force used and the need presented, 2- the extent of injury inflicted, and 3- the motives of the officer (that last one is not a factor in 4th amendment cases).

   Given that Booker was handcuffed, on his stomach, and not resisting (really, unable to meaningfully resist), the court held that the force used was disproportionate to the need for force.  The extend of injury in this case is death.  And the motives of the officers... for due process violations, the standard is force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness.  So the court looks at things like holding the carotid hold for two and a half minutes, applying an 8 second drive stun to a handcuffed prisoner, and putting more weight on Booker's back than what Booker weighs while he's laying prone and completely restrained.  In light of all that, a reasonable jury could find that the defendants acted with the requisite mental state for a due process violation.

   So a constitutional violation has been shown, but in order to overcome qualified immunity the plaintiffs also have to show that the law was clearly established.  The defendants argue that since most excessive force case law relates to the 4th rather than the 14th amendment, the law was not clearly established.  The court held that since 4th amendment case law is informative as it relates to the relationship between force used and the need presented, and since the result is the same under either standard, the law here was clearly established.  Qualified immunity was denied.

   Qualified immunity was also denied (for similar reasons) on claims of supervisory liability and denial of medical care.

   This next part is important: The defendants also argued that each officer should be entitled to or denied qualified immunity separately, rather than collectively.  After all, they each used different force and some of them may not have actually used excessive force (for example, the ones who just applied the handcuffs weren't necessarily doing anything excessive.  This guy did just take a swing on one of them, and handcuffing him was entirely appropriate).  But the court was not having it.

   There are two different approaches that the court took to resolve this problem.  First, the court noted that sometimes it is appropriate to analyze the conduct of different officers together.  They were all working together towards the same objective, each participating in the overall conduct.  If the overall use of force was excessive, they each participated in and contributed to that even if some of them played a bigger part than others.

   Second (and, in my opinion, much more importantly): a law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may be liable under § 1983.  So even if some of the officers didn't do anything excessive themselves while restraining Booker, they also didn't do anything to stop the obviously excessive force going on right in front of them.  Their inaction makes them liable even if the actions they did take wouldn't.

Tenth Circuit US v. Fonseca 12-3325

Decision here.

   Fonseca and his girlfriend burglarized a gun shop, then drove across state lines to sell the guns for money to pay their bills.  Unsurprisingly, a lot of the money actually went to hotel rooms and drugs during their weird little vacation, which led to an argument because Fonseca didn't think his girlfriend was being responsible about the whole thing.

   So Fonseca took a bag with the last 8 guns that they had (out of 36) and set off walking on his own.  His girlfriend found a couple other people to get high with, and eventually the three of them went to go pick up Fonseca when he called to ask for a ride.

   By then, a cop was already watching Fonseca.  It was late at night and Fonseca had been walking around in an area with nothing but a lot of closed businesses, and where there had been a rash of auto burglaries.  The cop had been standing around in the parking lot, watching for anyone suspicious.  He called out to Fonseca and asked if he could talk to him.  During the stop, the officer would repeatedly ask for consent to search Fonseca, but Fonseca never agreed.

   Fonseca (who was on the phone with his girlfriend) put the bag down, walked away from it, and then spoke to the officer.  He was very emphatic on the phone about getting his girlfriend to come pick him up, and was giving sketchy answers to the officer's questions.  Fonseca's girlfriend (and the two she was with) showed up right around the time that a backup officer did, and stopped after Fonseca told her on the phone that if she sped off she'd just get pulled over.

   At Fonseca's direction, she surreptitiously picked up the bag of guns and put it in the car (one of the backup officers saw her do it, but didn't say anything about it until later because he was an FTO and his trainee had his hands full dealing with the other two suspects.  The officer who made the stop didn't see her do it, but did notice that the bag had disappeared).  When she was initially asked about it, she gave the officers a different bag (which fooled everyone except the FTO, who still didn't say anything).  

   After Fonseca had been detained for about 20 minutes, the officers found that there was a warrant for his arrest.  It was another 10 minutes before the warrant was confirmed and Fonseca was arrested.  Afterwards, the FTO finally spoke up about the bag, the girlfriend admitted to lying, and then gave consent to search the car.  The cops did search the car, and found the guns in Fonseca's bag (two of which were loaded, and all of which were traced back to the original burglary).

   Fonseca was eventually convicted of possessing stolen firearms.  He appealed his conviction, arguing that the guns should have been suppressed because they were found as the result of an illegal detention.

   To be lawful, a Terry stop must be justified at its inception and reasonably related in scope to the circumstances which justified the stop.  Fonseca acknowledged that the stop was initially justified by reasonable suspicion, but argued that when a few minutes of questioning didn't yield incriminating information then he should have been released.  After reviewing the testimony and video in this case, the court ruled that Fonseca's mannerisms, actions, and answers during the stop were all sufficiently suspicious to justify a few more minutes of detention (the court particularly seemed to notice the sketchiness of Fonseca's responses to questions, and the vanishing bag trick).  Detaining somebody while waiting for NCIC clearance isn't always reasonable, but in this case it was.  And once the officers became aware of the warrant, continuing the detention even further is a given.

   The denial of the motion to suppress was affirmed, Fonseca's conviction upheld.

Tenth Circuit US v. Mosley 13-3101

Decision here.

   Police responded to an anonymous tip that two black males were handling a gun in a black Ford Focus in a Denny's parking lot.  The first two officers to show up found only one black Ford Focus in the parking lot, and there were two black male occupants, but they didn't actually see any gun.  They ordered the occupants at gunpoint to show their hands, and the driver complied.  Mosley (the passenger) did not; he began making movements consistent with either retrieving a gun from under the seat or hiding one under the seat.

   The officers (who it seems were standing WAY to close to the car) started kicking the car to "shock" Mosley into compliance.  Eventually he did put his hands up, so they opened the door and ordered him out.  He wouldn't get out of the car, so they dragged him out and cuffed him.  Later, they checked under the seat where he had been sitting and found a gun.  Mosley was charged with being a felon in possession of a firearm.  After the district court denied his motion to suppress, Mosley entered a conditional guilty plea and appealed.

   Mosley's argument is that the police did not have justification for stopping him in the first place, and that the amount of force used during the stop converted the stop into an arrest for which the police lacked probable cause.

   One of the officers testified to a history of shootings and other crimes at that particular Denny's, and the Tenth Circuit sort of hinted that based on all of that and the anonymous tip the officers had reasonable suspicion.  But the court took a different path to actually deciding this case.  

   Someone is seized for Fourth Amendment purposes when one of two things happens: 1- the police attempt to stop them by means of a show of authority and the person submits to their authority, or 2- the police apply physical force to a person to effect the seizure.  In this case, that means that although the driver was seized when the officers started giving orders at gunpoint, Mosley was not.  Rather than put his hands up as ordered, he did the exact opposite.  By the time Mosley did put his hands up, his furtive (I'd have said threatening, but the court said furtive) movements had already provided justification for the stop even if it hadn't been justified in the first place (the court made it clear that it was not deciding that the stop wouldn't have been justified, but only assuming that for the sake of argument).

   As far as Mosley's second argument, that the amount of force used against him converted the stop to an arrest... he misses the point.  During a Terry stop, officers are permitted to use force to ensure their own safety and to "maintain the status quo" during the stop.  Under the right circumstances, that can include pointing guns at someone or forcing them to the ground.  The important question is whether the facts available to the officer at the moment of seizure (in this case, the moment where Mosley finally put his hands up) would make a reasonable person believe the action taken by police was appropriate.  Given all of the information available to the officers at the time of this stop, conducting the initial stop at gunpoint was reasonable.

   The court chose not to decide whether or not everything the police did after that (kicking the car, dragging Mosley out of the car, etc...) converted the detention to an arrest because it doesn't matter.  By then, because he had been failing to comply with lawful orders, the police had probable cause to arrest him for violating the Kansas statute for Interference With Law Enforcement.  So even if dragging Mosley to the ground converted the detention to an arrest, the arrest was justified.

   Since Mosley's Fourth Amendment rights were never violated, the gun was not the fruit of an illegal stop.  The lower court's decision was affirmed, and Mosley's conviction upheld.

US Supreme Court Fernandez v. California 12-7822

Decision here.

   Fernandez (and four of his fellow gangstas) robbed some guy at knife point.  During the robbery, the victim was cut, beated, and divested of $400 cash and a cell phone.  Two officers who were searching for the robbery suspect saw someone run into an apartment building and subsequently heard screaming and fighting coming from inside one of the apartments.  They waited for backup, and then knocked on the door.

   A female answered the door, looking like she had been beated.  She was crying, had fresh injuries, there was blood on her shirt, and she said she had been in a fight (she was also holding a baby and told police that there was a four year old in the apartment with her).

   Officers asked the female (Rojas) to step out of the apartment so they could conduct a protective sweep.  Fernandez then came to the door wearing his boxers.  He angrily told police that he knows his rights and that they could not enter the apartment.  The cops removed him from the apartment and arrested him for domestic violence.  Then the original robbery victim identified Lopez as the one who had robbed him, and it was off to the clink they went.

   An hour later, the police returned to Fernandez's and Rojas' apartment.  Rojas gave verbal and written consent to search the apartment.  Then the four year old showed them where daddy kept his sawed-off shotgun.  The police also found gang paraphernalia (related to the gang whose territory the robbery had occurred in), the clothes which were worn during the robbery, a butterfly knife, and some ammo.  Fernandez was eventually convicted of crimes including the robbery, DV, possession of a firearm whilst a convicted felon, and other weapons crimes.  He appealed his conviction, arguing that the evidence should have been suppressed.

   Fernandez's argument is that the search of his property was impermissible under Randolph.

   The Court gives a little background on two-party consent in its decision, citing a couple of older cases that I haven't summarized yet, so I'll go into them here.  In US v. Matlock, Matlock was arrested in his front yard for a bank robbery.  Once he was in the squad car, police asked Matlock's girlfriend for consent to search their room (rather than asking Matlock himself, which they could easily have done).  The search yielded incriminating evidence, and the court found that the search was valid because Matlock's girlfriend had common authority with him over the premises and effects that the police searched.

   In Illinois v. Rodriguez, a mad woman let the police into the apartment which she shared with Rodriguez (who was sleeping at the time), and they found drugs and paraphernalia.  Then they found out that it wasn't really her apartment, she had already moved out and no longer had any authority over the premises.  The court held that the search was reasonable anyway, because at the time of the search the police reasonably believed that it was her apartment.

   And that brings us back to Randolph... most cops are pretty familiar with this one.  Randolph's wife told police that he had cocaine in the house.  Randolph told the cop he couldn't come in, so the cop simply turned to Randolph's wife and asked her for consent to search.  The court eventually ruled that the refusal of a present party who objects to the search overrides the consent given by another party.  The court made it explicitly clear that the objecting party must be present in order to have a say in it, unless the police removed him for the purpose of overcoming (or avoiding) his objection.

   Now we're back to this case (and probably the most important paragraph of my summary).  One of Fernandez's two arguments is that his objection to the search should have stood even though he wasn't present, since the only reason he wasn't present was that the police removed him.  The Supreme Court ruled that this, like other Fourth Amendment inquiries, is not a question of the officers' subjective intentions.  The question is whether it was objectively reasonable to remove the objecting party (and in cases like this one, where there's PC to arrest for DV, a violent robbery, or both, it's reasonable to do so).  Randolph's prohibition against removing someone for the sake of overcoming their objection is only invoked if the police remove them without an objectively reasonable basis for doing so.  And just like that, Randolph went from being a complicated problem to a minor footnote.

   Fernandez's other argument is that because he objected to the search while he was present, his objection should have remained in effect until there was some sort of evidence that he had changed his mind.  The Court didn't think much of that, though.  For one thing, it creates more problems than it solves.  The court gave a hypothetical example of someone serving a fifteen year sentence, and their co-tenant still being unable to give police consent to enter their house ten years into that sentence just because at one time someone who had lived there had objected to a search.  The court also wondered if one could register in advance their objection to searches, or if they'd be putting the police in a position of having to determine whether or not the objecting party still has standing to object after being sentenced to the hypothetical fifteen year sentence.  Or would the objection only last for a specif amount of time?  How long?  And the court wondered if such standing objections would attach to specific officers, to specific agencies, to specific investigations, to any officer who knew about them, or what.

   More importantly than all of those ridiculous arguments, the Court felt that such standing objections to a search wouldn't really be in keeping with the spirit of the Randolph decision.  Randolph was decided largely based on social norms... if your average person (like a domestic violence social worker, a friend, or a relative) were invited into a house by one resident while being simultaneously warned to stay out by another resident, then they probably wouldn't feel comfortable going in.  If, on the other hand, the person warning them to stay out was removed (and they knew he wasn't going to come back during the visit), then the average person might feel more comfortable accepting the invitation.   Besides, allowing Fernandez to simply create a standing objection to police entry that overrides Rojas' consent even after he leaves would show disrespect for her independence and give Fernandez power over her that the Fourth Amendment never intended.

   Long story short, the court didn't agree with Fernandez's arguments.  Rojas' consent to search the apartment was held to be valid, and the evidence found during the search was admissible against Fernandez.  His conviction was upheld.

Tenth Circuit US v. Augustine 12-3269

Decision here.

   Not much to say about this one...

   After another pair of drug dealers were arrested, they rolled on Augustine.  Police used that information to get a warrant for Augustine's house, which led to the discovery of incriminating evidence.  Augustine was arrested, and made some incriminating statements post-Miranda.  He was convicted of two counts of conspiracy to distribute methamphetamine, and appealed his conviction.

   He argued that the warrant was based on an affidavit which did not establish probable cause.  Interestingly, the trial court never decided whether or not the affidavit supported probable cause.  Instead, they decided that the good faith exception rendered the evidence admissible even if the affidavit fell short.  Augustine argued that the affidavit was so devoid of factual support as to render the good faith exception inapplicable.

   The information in the affidavit seemed pretty straightforward to me.  I thought there was PC.  The Tenth Circuit decided not to decide that, but decided to agree with the trial court that even if the affidavit fell short, it was good enough that the good faith exception would apply.  So the evidence was admissible.

   As far as Miranda goes... Augustine waived his rights and told the officers that he was not under the influence of any drugs, and that he was supposed to take some prescription drugs (stuff they prescribe for mental illness).  He apparently seemed sober and coherent during the interrogation, and made a lot of admissions that he probably wished he could take back when his case went to trial.  At a few points during the interrogation, he mentioned that he would like to take his prescription drugs (but never said he wouldn't continue the interview without them).  His argument on appeal was that he actually was under the influence of illegal drugs and that he needed his prescription drugs, and that therefore his Miranda waiver was not knowing, voluntary, or intentional.

   The trial court didn't buy it, and neither did the Tenth Circuit.  Augustine's Miranda waiver was held to be valid.  His convictions were upheld.

Colorado Supreme Court Grassi v. People 11SC720

Decision here.

   Grassi, driving whilst drunk, ran his car off the roadway for no apparent reason (other than his drunkenness).  He was seriously hurt in the accident and transported to the hospital where he remained unconscious for several hours.  His passenger was killed.

   Like most calls this big, the investigation involved more than one officer.  There were at least two officers investigating at the scene (one who was an accident reconstructionist, one who was not but was the first responding officer), both of whom concluded that there was no external cause of the accident and that the driver had just followed the fog line off of the roadway, which is something drunks sometimes do.  There was a supervisor, who did a fine job of delegating other tasks.  And there was the officer who the supervisor sent to the hospital, with the instructions to obtain a blood draw if he determined that alcohol was a factor in this accident.

   The officer who went to the hospital was apparently assigned this task before the accident investigation had been completed (which only makes sense).  Even though Grassi was still unconscious, the officer could smell a strong odor of alcohol from his breath.  He ordered a couple of blood draws, both of which were completed after the accident reconstructionist had determined that the accident was caused by Grassi's bad driving.  The blood test later revealed that Grassi was drunk (the decision doesn't tell us just how drunk, but over the legal limit).

   Grassi was convicted of Vehicular Homicide, Manslaughter, and DUI.  He appealed his conviction launching a somewhat mystifying attack on the fellow officer rule.  His argument goes like this: the fellow officer rule allows one cop to act on information from another, but at the time that the third trooper was assigned to go to the hospital to potentially do a blood draw, the accident investigation wasn't completed yet so there was no probable cause.  Also, the officers at the accident scene didn't necessarily communicate all of their findings directly to the one at the hospital.  Therefore, the blood draw was done without probable cause in violation of the Fourth Amendment.

   The Supreme Court explains that the fellow officer rule allows officers to act on information known to other officers related to the same investigation, so long as two requirements are met: 1- the officers have to be acting as part of a coordinated investigation, and 2- the police must collectively possess the information required to justify the action at the time the action is taken.  Given that those two conditions are met, the courts aren't going to nit-pick who told who what when.  The courts also aren't going to ask us to make search and seizure decisions based only on the information available at the time that we were assigned to an investigation (which is what Grassi wanted); instead, we can use the information available at the time that we conduct the search or seizure.

   In this case, the officers were all obviously acting as part of a coordinated investigation.  And the information known to the police at the time supported probable cause, so the blood draw was good and Grassi's conviction was affirmed.

   That "coordinated investigation" part is what differentiates this case from wall stops.  In a case of a wall stop (where investigating officers tell another officer to find their own reason to stop someone who they think is a Bad Guy), the officer making the stop is specifically NOT acting as part of a coordinated investigation.  By withholding their suspicions (or by telling the officer to ignore their suspicions and find his own), the investigators are specifically cutting the officer out of the coordinated investigation, and so the fellow officer rule can not be used to justify wall stops (that's from a case where the officer making the stop tried to justify the stop by using a traffic violation that wasn't actually a violation).