Monday, February 27, 2012

Tenth Circuit Morris v. Noe 11-5066

Decision here.

   In this case, Officer Noe was responding to a call of a domestic (a chaotic one, with burning clothes, a tire iron through a windshield, and all sorts of nonsense).  The suspect in the DV case was gone when he got there, but the three people who remained were still yelling and arguing.  Officer Noe tried to calm them down and take their statements.  About twenty minutes later (after the situation was finally under control), William Morris showed up.  He asked his wife (one of the people already on scene) if she was okay, and asked Bell (one of the other involved parties) "Why was you talking to mama that way?"  Bell approached Morris, who put his hands up and backed away from Bell.

   At this point, Officers grabbed Morris from behind, threw him to the ground (into some bushes), and handcuffed him.  After they stood him up, they noticed that he smelled like alcohol and he admitted to having a couple of drinks earlier.  He was issued a summons for public intoxication, and then he was hospitalized for 30 days for hip injuries incurred during the takedown.  While he was in the hospital, his wife went to court for him on his public intoxication charge and paid the fine.  Three years later, Morris died and his wife brought a 1983 suit against Noe alleging unlawful arrest and excessive force.  Noe was denied qualified immunity by the district court, and appealed.

   Noe argued that there was PC to arrest Morris for public intoxication, and that he was not under arrest until that summons was issued.  He also argued that the takedown was part of a detention based on reasonable suspicion that Morris was committing an assault, and that the force used was reasonable.  The 10th circuit held that 1- Since Morris was backing away from Bell, had not threatened him, and wasn't doing anything aggressive, and generally posed no threat to anyone, the force used was unreasonable.  2- The force used during the takedown converted the detention to an arrest. 3- Although Noe eventually developed PC to charge Miller with public intoxication, that happened after he was already in custody.  At the time he was actually arrested (the takedown), Noe didn't even have RS to detain him.

   Finding that Miller's rights to be free from unlawful arrest and excessive force under these circumstances was clearly established, the Tenth upheld the lower court's denial of qualified immunity.  The decision also addresses whether or not the law can be clearly established (for qualified immunity purposes) by unpublished opinions (the court admitted that unpublished opinions do not carry the same weight that published opinions do, but specified that it had never actually held that they carry no weight.  The court found it unnecessary to resolve this issue at this time).

Sunday, February 26, 2012

Tenth Circuit Romero v. Story 11-2139

Decision here.

   The facts (as determined by the trial court in this civil case): an RP called to report that his car had been vandalized, and that after the vandalism he had seen a Hispanic male in the parking lot, who later went into a particular apartment.  The police went to that apartment, and a Hispanic male (Romero) opened the door and stepped outside.  The police told him to take his hands out of his pockets, and he did so.  He started to walk back into his apartment (he says it was to let the other people in the apartment know that the police were at the door).  One cop grabbed him from behind, another did a leg sweep, and he hit the ground (chipping a tooth) and was arrested for evading an officer.

   Incidentally, the New Mexico evasion statute is much easier to meet than anything I know of in Colorado, but I'm not really convinced that it applies to these facts.

   The arrestee sued the police for arresting him without PC, and for excessive force.  The police tried to claim qualified immunity, and claimed that they had reasonable suspicion to detain Romero based on the RP's complaint, and that since they had RS they had PC to arrest Romero for evading when he turned back toward the apartment (both arguments sound like absolute bullshit to me.  RS is a pretty easy standard to meet, but if all you've got is some RP saying "I saw this dude a while after some shit happened," then you're not there).  The district court denied qualified immunity (holding that our right to be free from arrest absent probable cause has been clearly established).  The Tenth Circuit affirmed.

   In this case, the police failed to establish that they had so much as reasonable suspicion to detain Romero, let alone probable cause to arrest him.

Wednesday, February 22, 2012

Tenth Circuit US v. McGehee 10-3068

   In this case, McGehee was a passenger in a car that was illegally parked (facing the wrong direction) in front of a house from which the police had made several arrests for drug offenses.  An officer driving past saw that the car was facing the wrong way, and turned around to make a traffic stop.  The driver turned his car around and parked legally, but the officer stopped the car anyway.  While talking to the driver, the officer noticed the smell of PCP from inside the car.  The officer also noticed drug paraphernalia.  Both occupants of the car were removed, more drugs were found, and while being removed from the car McGehee tried to push a gun underneath the seat of the car with his foot.  A search of McGehee's person revealed about $150 and small baggies of crack.

   McGehee moved to supress the evidence, arguing that the stop was illegal because the traffic infraction had already been corrected.  He also argued his detention had exceeded the scope of the circumstances which gave rise to it.

   Obviously, the court had none of it.  Officers have the authority to make a stop when a violation has occurred or is occurring, and no court has ever held that correcting a violation before the stop invalidates this authority. Also, previous cases have held that if officers become aware of additional circumstances during a stop which create reasonable suspicion of further criminal activity, then we may expand the scope of the stop to address the newly developed information.  McGehee appealed the district court's denial of his motion to suppress, and the 10th Circuit affirmed the judgment of the lower court.  Pretty obvious case, really.

US Supreme Court Messerschmidt v. Millender 10-704

Decision here.

   In this cases, Bowen (a known gang member with numerous violent felony convictions) attacked his girlfriend when she broke up with him, because she had called the cops.  "Attacked" meaning that he tried to throw her over a second story balcony, dragged her around by her hair, bit her, and shot at her five times with a shotgun.  His girlfriend escaped, and reported to the assault to the police.  The also gave information regarding his gang affiliation and the location where he could be found (this location was Millender's house.  Millender was Bowen's 70 year old former foster parent).

   Detectives obtained a warrant for Bowen's arrest, as well as a search warrant for Millender's house.  This warrant authorized the seizure of any and all firearms, as well as any evidence of Bowen's gang affiliation.  The search warrant was served, and a shotgun was seized along with some ammo and a letter which was addressed to Bowen.  Bowen was not found at the residence (he was arrested a couple weeks later, hiding under the bed in a motel room).

   Millender sued the detectives, saying that the warrant was unconstitutionally overbroad because it specified "any and all" firearms rather than just the firearm actually used in this case, and because it allowed for the seizure of gang paraphernalia when the case at issue was a domestic violence incident.  The detectives tried to claim qualified immunity.  When the case worked its way up to the 9th Circuit, the court agreed with Millender, and denied qualified immunity.  The court held that the warrant was defective because there was no PC to believe that there were additional guns in the residence, and that a reasonable officer should have known this.

   The Supreme Court (as usual) reversed the judgment of the 9th Circuit.  The court specifically declined to decide whether or not there was PC to search for any and all firearms and gang paraphernalia, although the language of this decision strongly suggests that there was.  The court did decide, however that even if there wasn't PC it was a close enough call that a detective, the detectives supervisor, a deputy DA, and an independent magistrate all reasonably believed that there was PC.  The court further held that there was nothing obviously wrong with the warrant, so the police acted reasonably in relying on the warrant and on the judgment of the magistrate.  The court contrasted this decision with another case where officers were denied qualified immunity, even though they had obtained a warrant.  In that case (Groh v. Ramirez), the warrant didn't describe the items to be seized at all.  That's a pretty obvious violation of the 4th amendment, and anyone glancing at the warrant could have seen it, which makes it so different from the case at hand that it is irrelevant.

   So anyway, the court ruled that the officers in this case were entitled to qualified immunity.  The court explained that although there are circumstances where an officer relying on a warrant would not be entitled to qualified immunity, those cases are extremely rare.  

Tuesday, February 21, 2012

US Supreme Court Howes v. Fields 10-680

Decision here.

   Fields was serving a sentence in a Michigan state prison for an offense unrelated to this case when sheriff's deputies wanted to question him about some sexual activity with a 12 year old boy which he had engaged in prior to his incarceration.  Fields was escorted away from the general population to an average sized conference room to meet with the deputies, who were armed.  Fields was told at least twice that he was free to return to his cell at any time, he was not handcuffed or restrained, and the door to the conference room was sometimes open and sometimes closed during the interrogation.  Fields was offered food at some point during the interrogation, which lasted between 5 and 7 hours.  Fields said at some point during the interrogation that he didn't want to talk to the deputies any more, but never asked to be returned to his cell (and the interrogation continued).  One of the deputies used a stern tone and profanity with Fields, at one point ordering him to sit down and telling him that if he didn't want to cooperate he could go back to his cell.  At no time during the interrogation was Fields ever given Miranda warnings.

   Fields eventually confessed, and the interrogation was ended.  Fields had to wait about 20 minutes for correctional officers to arrive and escort him back to his cell.  He was charged with and convicted of (insert name of applicable Michigan crime here), but his conviction was eventually overturned by the 6th Circuit, which held that his statement should have been suppressed.  The 6th Circuit held that being incarcerated creates a per se rule that a person is in custody for Miranda purposes, and needs to be advised of his rights.

   The US Supreme Court reversed the 6th Circuit, holding that being incarcerated for an unrelated offense does not mean that a suspect is in custody for Miranda purposes.  The court reasoned that "n: Questioning a person who is already in prison does not generally involve the shock that very often accompanies arrest; a prisoner is unlikely  to  be  lured  into  speaking  by  a longing for prompt release; and a prisoner knows that his questioners probably lack authority to affect the duration of his sentence.  Thus, service of a prison term, without more, is not enough to constitute Miranda custody."

   So there is no rule that an incarcerated person is automatically in custody under Miranda.  It depends on whether or not the circumstances of the interrogation itself would create the sort of coercive pressure that Miranda warnings are designed to prevent.  Also, the court recognizes that an incarcerated prisoner's sense of what is normal is going to be vastly different than an unincarcerated person, so the fact that the prisoner is not allowed to wander about freely (or otherwise violate prison rules) also has no bearing on whether the suspect is in custody.

   Related to this specific case, the court recognized that there were aspects of the interrogation which would support a finding that Fields was in custody (such as the length of the interrogation, the fact that the deputies were armed, and the stern tone used by one of the deputies).  Those factors were countered and outweighed by other circumstances, though (the door was left open sometimes, he was not restrained, he was offered food, the room was well it and comfortable, and especially that he was told repeatedly that he could return to his cell at any time).  Fields' conviction was upheld.

Monday, February 13, 2012

Colorado Supreme Court O’Shaughnessy v. People

   Seriously?  Defense attorneys will try anything.  This case is presented more for entertainment value than because it's informative, this may be the stupidest argument ever.

   O'Shaughnessy was convicted of attempted first degree murder with a deadly weapon, attempted aggravated robbery, second degree assault, false imprisonment, reckless endangerment, and received a violent crime sentence enhancer.  All of this is because he approached a woman in a parking lot, held a six inch hunting knife to her face, stabbed her six times, told her she was going to die, and demanded money.  The victim fought back, and told him she didn't have any money, and he ran away.

   So, regarding the crime of attempt, there is an affirmative defense created in statute:

It is an affirmative defense to the crime of criminal attempt that the
defendant abandoned his effort to commit the crime or otherwise prevent
its commission,  under circumstances manifesting the complete and
voluntary renunciation of his criminal intent.

   O'Shaughnessy argued that by walking away (instead of stabbing her again) he was abandoning his effort to commit the crime, and asked that the jury be given instructions regarding this affirmative defense.  The trial court denied his motion, and he appealed his conviction on those grounds.

   The Supreme Court observed statute requires a defendant to present some credible evidence of an affirmative defense in order to be entitled to raise that issue.  O'Shaughnessy failed to present any credible evidence that he had abandoned his criminal intent.  His conviction stands.

Colorado Supreme Court People v. Revoal 11SA280

Decision here.

   In this case, Revoal was observed by an officer standing near a closed sandwich shop, looking around, walking towards an open liquor store, and then walking behind the liquor store where it was dark.  The record showed that Revoal could have been walking towards a gas station.  When Revoal saw the police, he turned and walked away.  Police ordered him to stop, and he did.  The officer told him he was going to be searched, and asked him if he had anything illegal.  Revoal admitted that he did.

   Revoal was searched, and marijuana and paraphernalia were found.  He admitted to selling marijuana.  At trial, he argued to suppress the stop.  He also argued to suppress his statements under Miranda, but the court did not address that argument.  The trial court found that there was no reasonable suspicion for the stop and suppressed everything.  The prosecution filed an interlocutory appeal.

   The decision lists five specific facts that the police used to justify the stop:
(1) it was 11:30 p.m.;
(2) robberies had recently occurred in the area;
(3) Revoal was standing on the side of a closed Subway, looking left to right;
(4) Revoal walked to the side of an open liquor store, continued looking left to right, then walked toward the back of the liquor store, where it was dark;  and
(5) Revoal  turned and walked away from the investigating officer when he observed the patrol vehicle.

   In his testimony, the officer described Revoal's actions as "aimless."  He also described that Revoal was looking left to right "as if he was looking for something or watching for something," and that this was consistent with the behavior of someone staking out a business or scanning for police.

   Regarding each of the above justifications, the court noted that: despite the late hour, there were business open and other people walking in the area; the past history of crime in an area does not suspend the constitutional rights of people within that area, there is nothing unusual about standing on a street corner or strolling (apparently, that's still a word) up and down the street, and attempting to avoid police contact does not (without more) justify an investigative detention.

   More importantly, the court held that even taken in conjunction with each other these actions were too ambiguous to amount to reasonable suspicion.  The court contrasted this case with others where investigative stops were upheld.  In Terry v. Ohio, the defendants paced along an identical route more than 20 times, repeatedly pausing to stare in the window of the same shop.  In People v. Ratcliff, a known (and wanted) drug dealer walked up to someone in a known drug area and simultaneously exchanged objects.  In People v. Canton, officers were responding to an anonymous tip when they found a large group.  Most of the group scattered when the police arrived, leaving the defendant behind holding a roll of bills. (those last two were Colorado Supreme Court cases).  In each of these cases, the police were able to point to *deliberate* suspicious conduct and supporting evidence.

   The court held that the facts of this case were insufficient to meet reasonable suspicion, making the stop unreasonable.  Accordingly, the weed, paraphernalia, and statements were all suppressed.

Colorado Supreme Court Montez v. People 10SC294

Decision here.

   The facts: Montez broke into a house, where he stole some money and a gun case with two unloaded shotguns.  He was arrested and convicted of first degree burglary and possession of a weapon by a previous offender.  The first degree burglary was based on his being armed with deadly weapons (the shotguns).

   Montez appealed his conviction, saying that Colorado law only classifies firearms as deadly weapons when they are intended to be used to produce death or serious bodily injury.  18-1-901(3)(e) defines "deadly weapon:"

"Deadly weapon" means any of the following which in the manner it is
used or  intended to be used is capable of producing death or serious
bodily injury:
(I) A firearm, whether loaded or unloaded;
(II) A knife;
(III) A bludgeon;
(IV) Any other weapon, device, instrument, material, or substance,
whether animate or inanimate

   The prosecution argues that "intended to be used" refers to the manufacturer's intent, not the defendant's intent.

   The ruling: The Court holds that "intended to be used" refers to the defendant's intent.  Therefore, there is no per se rule in statute designating firearms, knives, or anything else as a deadly weapon; it depends on what the suspect was doing with the item in question.  In this case, Montez was carrying them unloaded in a gun case, and never did anything with them to indicate that he intended to use them as weapons.  Montez's conviction for first degree burglary was vacated, and the case was remanded back to the trial court with orders to enter a conviction of second degree burglary (since all the elements of that crime had already been proven beyond reasonable doubt in order to obtain the first degree burglary conviction).

Monday, February 6, 2012

Colorado Court of Appeals People v. Wartena 08CA0675

   People v. Wartena holds that under Colorado law, a suspect need not intend to commit another offense (in this case, theft) prior to unlawfully entering a building in order to commit burglary.  The intent may be formed after unlawfully entering, while unlawfully remaining in the building.  The decision notes that this wasn't the case in 1999, but the burglary law has changed since then.  The defendant in this case hid in a barn while running from the cops (after stealing a license plate, shooting at a witness, and getting in a fatal car crash with a passer-by).  He was arrested the next day, after leaving the barn (wearing a pair of boots that he found inside).