Sunday, May 27, 2012

Tenth Circuit US v. Benard 11-4005

Decision here.

   This one addresses a lot of different issues, so it'll be a long post.

   So the FBI was investigating Mr. Sanchez, who they believed was selling drugs out of his tire shop.  As part of their investigation, put an authorized wire tap on his phone, and sometimes set up surveillance outside of the shop.  They identified one of Sanchez's regular customers as "Tommy."  Although Tommy did buy tires from Sanchez one time, based on the content of their phone conversation and on the surveillance the FBI had plenty of reason to believe that Tommy usually went to Sanchez for drugs.

   On five different occasions, Tommy showed up at Sanchez's shop shortly after suspicious phone calls (which didn't explicitly mention drugs, but which did talk about the price of a cooked up product measured in ounces).  Agents checked Tommy's plate, learned that he was Reshard Benard, confirmed his identity by obtaining his driver's license photo, and also learned that he had a previous conviction for possession of a firearm in furtherance of drug trafficking.

   Then, one day, Benard called Sanchez and arranged to buy 2.5 oz of whatever it was Sanchez was supplying him with.  Benard showed up at the arranged time, was in the tire shop for five minutes, and left.  Agents followed him, and then contacted a Utah State Trooper to arrange for a wall stop.  The trooper was not informed of the details of the investigation, but he was informed of the description (and license plate) of Benard's car, its location and direction of travel, and of Benard's history of weapons possession.  The trooper was directed to find his own reason to stop Benard, and then conduct his own investigation.  Very much a typical wall stop.

   The trooper found Benard's car, but apparently couldn't find a decent violation.  He cleared the license plate, found that there was no insurance information on file with the Utah DMV, and made a traffic stop based on the apparent NPOI violation.  (side note: there is no way in hell that I would stop someone on such a flimsy basis.  Which means that I also wouldn't use it as a basis for a wall stop.  Maybe Utah DMV is more on-the-ball than Colorado DMV, but I wouldn't consider "no insurance info on file" sufficient to establish reasonable suspicion.  I don't know if the trooper normally makes traffic stops based on such weak evidence or if he was bending the rules because the FBI wanted him to make a stop.  Either way... damn!)

   So.  The trooper makes a traffic stop, and Benard pulls into a private driveway and stops.  Benard starts to get out of the car, and the trooper tells him to stop.  Some of Benard's friend's come out of the house, and the trooper tells them to go inside.  Everyone cooperates.  The trooper then instructs Benard to get out of the car, lightly touches his back to direct him to the back of the car, and then asks for consent to pat Benard down.  Benard consents, and the trooper finds cocaine (initially identified as Mexican candy) and weed.  The trooper handcuffs Benard, and asks him if he's going to find anything else in the car.  Benard mentions that his girlfriend's gun might be in the car.  Another trooper searches the car and finds the gun.

   Benard filed a motion to suppress all the evidence based on several grounds: 1- He argued that the traffic stop was unjustified.  2- He argued that his consent to be searched was coerced and invalid.  3- He argued that  his statements (about the weed in his pocket and the gun in the car) should be suppressed since he was never advised of his Miranda rights.  The trial court denied his motion to suppress, so he conditionally pled guilty but appealed the denial of his motion to suppress.

   The 10th Circuit made the following observations regarding the traffic stop: The trial court had held that the stop could be justified either by the FBI's probable cause to believe that the car contained contraband, or by the trooper's reasonable suspicion that the car was uninsured.  Benard argued that there the FBI did not have PC, since they knew him to have actually purchased tires from Sanchez.  The tenth ruled that all of the information gathered by the FBI was sufficient to establish PC, and also that based on the collective knowledge doctrine it didn't matter whether or not the trooper knew that there was PC so long as he was acting on the directions of officers who did know.  Stopping Benard based on the FBI's evidence and giving Benard a cover story (like the insurance violation) to keep him in the dark about the investigation was held to be a valid law enforcement tactic.  Since the court held that the stop was justified based on the FBI's investigation, the court declined to consider whether or not the trooper's "reasonable suspicion" was valid.

   As far as consent, the court noted that the officer ordered Benard and his friends around, spoke assertively and with authority, and touched Benard on the back  when guiding him to the rear of the car.  Also, there were two officers present for the stop.  On the other hand, neither officer behaved aggressively or threatened anyone, they didn't draw their guns, and the physical contact between the officer and Benard was not forceful. In light of all the factors, the court decided that the officers did not coerce Benard and his consent to be searched was valid.

   That leaves the Miranda issue.  The court recognized that even investigative stops can require Miranda warnings if an officer takes certain intrusive steps to protect himself.  The court gave an example of a previous case where a suspect was proned out at gunpoint while police helicopters circled overhead, and the court had held that Miranda warnings were required.  But this case is not like that one, and the incriminating statement that Benard made during the search (admitting that he had weed in his pocket) was held to be admissible without a Miranda waiver.  The statement about the gun was made after Benard was handcuffed and clearly in custody, though.  The trial court had reasoned that this was still an admissible statement under the public safety exception to Miranda, but the 10th circuit was having none of that.  For one thing, the trooper wasn't asking about weapons, he was asking about anything that he might find in the car.  For another, even if he had been asking about weapons, there was no real likelihood that a gun concealed in Benard's car would fall into innocent hands if not quickly recovered.  The court held that Benard's statement that there might be a gun in the car should have been suppressed.

   Because only some of the evidence against him should have been suppressed, Benard was given the option to either be bound by the terms of his plea agreement (which included a 20 year sentence) or withdraw his guilty plea and stand trial.

Monday, May 21, 2012

Colorado Supreme Court People v. Funez-Paiagua 11SA368

Decision here.

   The court makes a lot of contrasting references to People v. Revoal in this decision.

   Two police officers saw Funez-Paiagua standing on the property of a closed auto shop on Colfax at 1 AM.  There were no other open businesses in the area (which had seen a recent increase in crime), and although Colfax is generally a busy street there was no one else around at the time.  One of the officers approached the place where he had last seen Funez-Paiagua, who was gone.  Then the officers heard a crash (a car stereo amp falling to the ground) and saw Funez-Paiagua running away.   They chased after Funez-Paiagua, ordering him to stop.  Funez-Paiagua stopped, identified himself, and was subsequently arrested on four outstanding warrants.  During a search incident to arrest of a bag he was carrying, the officers found a gun.  Funez-Paiagua was charged with POWPO.

   The trial court held that there was no reasonable suspicion to justify the stop, and suppressed the gun.  The people filed an interlocutory appeal.

   The Colorado Supreme Court observed that the trial court seemed to base its analysis on whether or not there was reasonable suspicion when the officers approached Funez-Paiagau, but that the proper question is whether or not there was reasonable suspicion when they ordered him to stop.  The court also drew a couple distinctions between Revoal and Funez-Paiagua: both were contacted at business in high-crime areas late at night, but in Revoal's case there were open businesses nearby and in Funez-Paiagua's case there were not.  Where Revoal was walking aimlessly through a parking lot and changed direction to avoid the police, Funez-Paiagua was seen running away and carrying bags after an officer heard a car stereo amp crash to the ground in an auto body shop.

   The court held that these circumstances supported reasonable suspicion that Funez-Paiagua had stolen items from some of the cars in the lot, and that the officers were justified in detaining him.  The suppression of the gun has been reversed.

Monday, May 7, 2012

Tenth Circuit US v. Huitron-Guizar 11-8051

Decision here.

   Huitron-Guizar was an illegal alien.  Officers searching his home with a warrant found some guns.  He pled guilty to being an illegal alien in possession of a firearm transported or shipped in interstate commerce (18 U.S.C. §§ 922(g)(5)(A), 924(a)(2), if you're interested), but he appealed his conviction, challenging the constitutionality of the law.

   The tenth circuit upheld the law.  The most comprehensible part of the decision says: "Heller (meaning District of Columbia v. Heller) held that the Second Amendment protects an individual right to possess a firearm, unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, like self-defense within the home.  This right was understood by eminent authorities like William Blackstone and James Wilson as but an application of the natural right of self-preservation.  554 U.S. at 593-94, 585.  Yet no right is absolute.  The right to bear arms, however venerable, is qualified by what one might call the who, what, where, when, and why."  The court goes on to assert that while everyone present in the US is entitled to the protections afforded by certain rights, there is nothing which says illegal aliens receive the protections of all rights afforded to citizens.  Equal protection means that similarly situated individuals be treated equally, but aliens (especially those unlawfully present) are not similarly situated to citizens.

   The decision gets a little weird from there, with discussion of whether "the people" or "persons" is a more inclusive term, dissections of previous court decisions, and contrasting the application of different constitutional amendments to different groups of people.  The lawyers can knock themselves out with that stuff if they want to; for law enforcement purposes it's probably enough to know that the statute in question was ruled constitutional.