Monday, March 26, 2012

Colorado Supreme Court People v. Esparza 11SA234

Decision here.

   This case involves two separate incidents.

   In the first, Esparza was stopped for a traffic violation.  The officer discovered that her license was suspended and arrested her.  At her request (and in compliance with department policy), her truck was left parked where it was.  Another officer brought a drug detection dog to the truck, and it alerted.  Police searched the truck and found a pipe with a testable amount of meth residue.

   In the second incident, the same officer who had arrested Esparza the first time saw that she was driving again.  She made it to a motel parking lot, where he contacted her (no other traffic violation was mentioned for this incident).  After confirming that her license was still suspended, he arrested her.  Once again, she requested that her truck be left parked where it was.  Once again, her request was granted, and a dog was brought to the scene.  The dog alerted, the truck was searched, a meth pipe with residue was found inside.

   Relying on previous supreme court cases (including People v. Haley and People v. Unruh), the trial court suppressed the drug evidence because the dog sniffs were conducted without first establishing reasonable suspicion beyond the traffic charges.  The people filed an interlocutory appeal.

   The Colorado Supreme Court overturned some of its previous decisions, and held that although the Colorado Constitution does sometimes afford greater protection against search and seizure than the Federal Constitution, K9 sniffs are no longer one of those cases: "To the extent that we had previously suggested otherwise, we now reject the broad proposition that government conduct permitting a trained narcotics detection dog to sniff outside a closed container, in and of itself,  infringes  upon reasonable privacy interests in the contents of that container, thereby constituting a search within the meaning of article II, section 7."  In other words, a K9 sniff does not require PC or RS as long as the dog is trained to only alert on contraband.  The reasoning for this decision is the same as the reasoning in Federal case law: people do not have a legitimate privacy interest in something they do not have a right to possess.

   Of course, it's important to note that a suspicionless K9 sniff that prolongs an otherwise lawful detention would still violate both the Colorado Constitution and the Federal Constitution.

Saturday, March 17, 2012

Colorado Court of Appeals People v. Nelson 08CA0775

Decision here. 

   Police, acting on information from a reliable informant, were investigating drug trafficking from an apartment.  A plainclothes officer knocked on the door and identified himself as "maintenance" while the uniformed officer waited out of sight.  When Nelson opened the door, the uniformed officer made his appearance and noticed a pot pipe in plain view.  He also saw a second occupant of the apartment run to the back, so he made entry and chased the second occupant out the back door, apprehended him, and brought him back to the apartment (while he was doing this, the plainclothes officer took Nelson to the ground to stop him from interfering).  The second occupant was found in possession of meth, and a subsequent search of the apartment (with Nelson's girlfriend's consent) uncovered guns and more drugs.  Then the police got a search warrant (a little late in the game, but whatever), and searched again.  The district court held all the evidence admissible, Nelson was convicted, and he appealed.

   The court of appeals made the following rulings:

   The police officers' use of a ruse to convince Nelson to open the door was valid, because they only used the ruse to convince him to open the door (after which, they were planning on carrying on the contact as a consensual knock-and-talk.  This makes no sense to me).  There's some discussion in the decision of when the police may or may not use deception to gain entry.  It basically boils down to a question of whether or not the deception is coercive or otherwise invalidates consent.  The court also draws a distinction between ruses used to gain entry to a place, and ruses used to cause an occupant to open a door.

   The pot pipe in plain view was probable cause, and Nelson's buddy running to the back of the apartment was exigency, because drug traffickers usually have weapons (that seems really weak to me.  I wouldn't want to try it, but it apparently worked in this particular case).

   The search of the apartment with Nelson's girlfriend's consent was not valid as to Nelson, and so the guns and drugs found during that search can't be used against him.... (it's about to get confusing)

   ...unless they would have been found anyway when the police searched the apartment with a warrant.  The exclusionary rule doesn't apply in cases where illegally obtained evidence would have been found later through legal means (the Inevitable Discovery doctrine) or when it was also found through legal means (the Independent Source doctrine).  Obviously, the police can't use the suppressed guns and drugs to obtain the warrant that leads to their admission, but the court held that there was enough evidence for them to have obtained a warrant before they found all that.  The question remaining is whether or not the police would have applied for a search warrant if they hadn't already found the guns and drugs.  The appellate court ruled that there was insufficient evidence on the record to decide this point, and remanded the case back to the district court for a hearing on this issue.  Depending on how the district court decides, Nelson will either remain convicted or be entitled to a new trial.

Colorado Court of Appeals People v. Vecellio 10CA0383

Decision here.

   In this case, "Karina" (an undercover ICAC officer) had a profile on adult friend finder where she expressed an interest in someone having sex with both her and her (imaginary) 13 year old daughter.  Vecellio took the bait, and agreed to meet with Karina at a convenience store with beer and condoms, for the purpose of having sex with her underage daughter once they were all comfortable with each other (embarassingly for the profession, Vecellio was a cop).

   Of course, instead of meeting with a creepy mother and her 13 year old daughter, Vecellio was arrested.  He was charged with (and convicted of) : conspiracy to commit sexual assault on a child by one in a position of trust, solicitation to commit sexual assault on a child by one in a position of trust, criminal attempt to commit sexual assault on a child, and enticement of a child.  He claimed at the trial that he hadn't really been doing any of those things, he had actually been conducting his own super-secret undercover operation (without his employer's knowledge) so that he could get promoted.  :)

   He appealed his conviction, on the grounds that he could not have conspired with Karina because she was an undercover officer who never legitimately agreed to commit the crime conspired to, and therefore there was no conspiracy.  He also argued against the child enticement conviction on the grounds that no actual child was involved, and he didn't communicate directly with anyone pretending to be a child.  And he also claimed on appeal that there was insufficient evidence to support his convictions.

   Regarding conspiracy, the court held that this crime requires that the defendant enter into an agreement with another to commit a crime.  It doesn't matter if the other party was only feigning agreement, as long as the defendant agreed and there was some substantial step taken towards the offense (like, say, driving across the state and buying condoms).  Regarding child enticement, the court held that it doesn't matter if there was no actual child involved as long as the defendant believed that there was, and also that Vecellio attempted to use Karina as his agent in inviting or persuading the imaginary victim.  Also, the court held that there was plenty of evidence in the record to support Vecellio's convictions.

Wednesday, March 7, 2012

Tenth Circuit US v. Haymond 10-5979

Decision here.

   This decision is pretty straightforward.  Basically, the FBI caught some guy with child porn, he was convicted, he appealed his conviction for various bullshit reasons, and the court of appeals upheld his conviction.  Here are the grounds for Haymond's appeal:

- Haymond's appeal alleged that there was insufficient evidence presented to establish certain elements of the crime against him, such as that he knowingly possessed the specific child porn images that were introduced in evidence against him (the court held the fact that he had obtained the child porn by searching for it on limewire to be sufficient to establish that he knowingly possessed it).

- He claimed that the court had erred in allowing a doctor to render a scientific opinion to the court on whether or not the images depicted children (the 10th didn't decide whether or not the trial court had erred on that, holding that even if the testimony was admitted in error it was harmless because another government witness testified to the actual identities of the children depicted, as well as their ages based on their birth certificates which he had viewed).

- He also challenged the court's jurisdiction over the offense (he was originally charged into federal court, which means that in addition to all the "normal" elements of the crime, the government had to prove that either the computer involved or the images had at some point crossed state lines.  The court held that the government met this burden when they demonstrated in their case that the child porn images had been created in Florida, while Haymond was arrested for possessing them in Oklahoma).

- Haymond claimed that there was no PC in the search warrant (the 10th disagreed with him), and also that the information used to obtain the search warrant was stale because the FBI learned of his child porn in October of 2007, but applied for the warrant in January of 2008 (the court held that since people who are interested in child porn tend to hoard such images, the information was not stale).

   Conviction upheld.

Monday, March 5, 2012

Colorado Supreme Court Regents of the University of Colorado v. Students for Concealed Carry on Campus 10SC344

Decision here.

   The Colorado Supreme Court held that the Conceal Carry Act (passed in 2003) does not allow State Universities to enforce policies prohibiting students with CCW permits to carry weapons on campus.

   The facts were pretty simple.  A group of students with CCW permits asked university officials to allow them to carry weapons on campus.  The request was denied, and the students sued.  The case was initially dismissed by the district court, but the students appealed.  Looks like they won.

Thursday, March 1, 2012

Colorado Court of Appeals People v. Carbajal 10CA2252

Decision here.

   This decision revolves around jury instructions, which isn't normally my thing.  But it revolves around jury instructions of an affirmative defense for possession of a weapon by a previous offender.  Essentially, this decision affirms that even convicted felons have the right under the Colorado constitution to possess firearms as long as they present some evidence that they are in possession of the firearm for the purpose of defending their home, person, and property.

   This is based on a Colorado Supreme Court decision from 30 years ago.  Since that time, the US Supreme Court has ruled that although the Second Amendment protects the right to keep and bear arms, that doesn't prevent the US from denying that right to convicted felons.  In the decision at hand, the court of appeals declines "to speculate whether our supreme court would modify its holding in Ford in light of Heller."