Friday, June 29, 2012

US Supreme Court US v. Alvarez 11-210

Decision here.

   Alvarez falsely claimed in a public meeting to have received the Congressional Medal of Honor.  This wasn't a misunderstanding, it was an out-and-out lie.  As a result, he was convicted under the Stolen Valor Act, which makes it a crime to lie about receiving military awards.  He appealed his conviction, challenging the constitutionality of the act.

   The US Supreme Court found the act unconstitutional and set aside his conviction.  As grounds for this finding, the court observed that content-based restrictions on speech are presumptively unreasonable.  Although there are exceptions to this rule (in specific cases like perjury, fraud, fighting words, lies to government officials related to official investigations, falsely claiming to represent the government.... the list goes on), the mere falsity of speech is not an exception.  Generally, there has to be a showing of a specific harm resulting from the false speech.  Further, the government has to take the least intrusive means available to proscribe even unprotected speech.  The Court suggests that in this case that could mean rewriting the act to include an element that the speech cause some harm to a specific person, or creating a searchable on-line database of legitimate recipients of the medal (private individuals have already done this).  That way, public ridicule and rejection of false claimants should take of the rest.  The remedy for false speech is true speech.

   In any event, since there are less intrusive means available to sanction lies like Alvarez's, and since his attempts to bolster his own reputation don't meet any recognized exception to the First Amendment, his speech (while detestable) is protected.

Wednesday, June 27, 2012

US Supreme Court Arizona v. US 11-182

Decision here.

   So Arizona passed a law which mimicked federal immigration laws in order to give their own peace officers authority to deal with illegal immigrants.  It's questionable whether or not that's constitutional, since the Supremacy Clause of the Constitution allows the federal government to decide that certain areas of law are off limits to state lawmakers.  In this case, there are four sections of the Arizona law which were challenged.  

   Section 3 made it a state misdemeanor not to comply with federal alien registration requirements.  The Supreme Court held that Congress has already regulated this field so completely that it leaves no room for the states to add their own laws, and struck this section down.

   Section 5(c) made it a state crime for an alien to seek employment without proper federal authorization.  The Supreme Court held that this interferes with the federal legal structure already in place (which punishes the employer, but specifically doesn't punish the employee).  This section of the law was struck down.

   Section 6 authorized state peace officers to arrest people who were subject to removal from the US.  The Supreme Court held that this interferes with federal law (the removal of unauthorized aliens is governed by federal regulations, and this law would have required state peace officers to make arrests not authorized under federal guidelines).  Struck down.

   Section 2(b) required officers who stopped someone to check with the feds on the detainee's immigration status.  Since Congress has already encouraged the sharing of information between state and federal agencies, this section was allowed to stand for now.  The Supreme Court put Arizona on notice that this one might get struck down too, depending on unforeseen consequences to the way that it is enforced.

   Given that we already leave the enforcement of federal laws to federal law enforcement officers, this one really has limited impact on immediate decision making by the police.  It's more relevant to state lawmaking bodies, making it more clear what laws they can and cannot pass.

Colorado Supreme Court People v. Figueroa-Ortega 12SA78

Decision here.

   Figueroa-Ortega worked as a cook at a restaurant, which was burglarized a few hours after he locked up and left.  The detective assigned to the case found surveillance video from a nearby church which revealed Figueroa-Ortega was the suspect.  Ten days after the initial report was filed (Figueroa-Ortega had been briefly interviewed during the initial report, but not as a suspect), the detective showed up at Figueroa-Ortega's apartment.  The detective showed up alone, in plain clothes, and made no show of force during the conversation.  They met in front of the apartment, and during the conversation the detective confronted Figueroa-Ortega with the evidence against him, told him that he was going to be charged with burglary, and pressured him for a confession.  Figueroa-Ortega denied any involvement in the burglary, admitting only that he did return to the restaurant to move his truck, and that he knew where the money was kept.  After interrogating him for a while, the detective thanked him for his time and left.

   Figueroa-Ortega was later charged with burglary.  At a hearing, he argued that his statements to the police were involuntary, were the fruit of an illegal seizure, and were made in response to custodial interrogation without the benefit of Miranda warnings.  The trial court held that the statements were voluntarily made, and that Figueroa-Ortega was not seized at all, so the statements were not the fruit of an illegal seizure.  Oddly, the trial court held that Figueroa-Ortega was subjected to custodial interrogation (even though he was not seized) because the detective's questioning was accusatory and confrontational.  Since it was uncontested that Figueroa-Ortega was never advised of Miranda, the trial court suppressed the statements.  The people filed an interlocutory appeal.

   Now, it is important to be aware that "seized" for Fourth Amendment purposes is not the same thing as "in custody" for Miranda purposes.  They are two different standards, protecting different rights, guaranteed by different amendments.  A person may be seized when they are arrested or during an investigative detention.  The Miranda warnings are not designed to protect people from any conversation with the police, but to protect people from making involuntary incriminating statements in a police-dominated atmosphere, after their freedom has been restricted to the degree normally associated with a formal arrest.

   The Colorado Supreme Court observed that the line between formal arrest and lesser restrictions isn't always clear.  Things like pointing guns at people, or moving them to another location (even if that location is just the back of a police car) tend to suggest that a person is in custody for Miranda purposes.  Those aren't clear cut rules, it's still a question of the totality of the circumstances, but they are strongly indicative.  Anyway, there was none of that in the case at hand.  The Court didn't come right out and say that it was impossible to be in Miranda custody without being seized, but the Court seemed to find the whole idea counter-intuitive.  After all, the criteria for an arrest (under the Fourth Amendment) and custody (under Miranda) are pretty similar.  Since Figueroa-Ortega's freedom wasn't significantly interfered with at the time of his interrogation, it didn't matter that the detective told him he was going to be charged, or acted confrontationally, or mentioned the strength of the case against him.  He wasn't in custody, and therefore he wasn't entitled to Miranda warnings.  The suppression order was reversed.

Saturday, June 23, 2012

Colorado Court of Appeals People v.Arzabala 10CA0651

Decision here.

   Arzabala was an HTO who was driving drunk (or at least whilst drinking), and who was involved in an accident after another driver made a u-turn in front of him.  There was some dispute as to whether the other drive caused the accident by turning in front of him, or he did by driving twice the speed limit.  Either way, a couple of people in the accident suffered SBI, but Arzabala was not injured.  He never gave his info to the police who were investigating the accident (he says he did, the police say he didn't, the jury believed the police).  Arzabala hitched a ride in an ambulance with one of his injured passengers, but while it was on the way to the hospital he jumped out and ran away.

   Eventually, he was arrested anyway.  He was charged with a couple counts of leaving the scene of an accident (one count for each victim that suffered SBI), and with DUI, reckless driving, aggravated driving under revocation (the HTO charge... a couple of counts of that.  One for HTO driving while drunk, one for HTO hit and run).  Also vehicular assault, giving alcohol to minors, might have been some other stuff.

   Anyway, he was acquitted of the DUI but he was convicted of two counts of vehicular assault (under the reckless driving subsection), giving alcohol to kids, both counts of hit and run, and one count of Agg DUR.  He appealed his conviction on several grounds.  He argued insufficiency of evidence, prosecutorial misconduct, bad jury instructions, and a few other trial related grounds that aren't really important to this blog.  None of it worked, anyway, and most of his convictions stand.  He also argued that the two counts of hit and run were double jeopardy.

   The court of appeals held that leaving the scene of an accident is charged per accident rather than per victim.  In other words, if you leave one accident, it doesn't matter if there are one or twenty victims left behind, it's still just one count of hit and run.  This logic doesn't apply to all charges (the vehicular assault, for example, is charged per victim and not per accident), but the court ordered that Arzabala's two hit and run convictions be merged into one.

Tuesday, June 19, 2012

Tenth Circuit US v. Madden 10-6072

Decision here.

   I apologize in advance for the ridiculously long summary.  If this one gets too technical for your taste, just read the highlighted portion and then skip to the last two sentences.  The rest is pretty much filler.

   In 2005, Sgt. Balderrama of Oklahoma City PD noticed that Madden was sitting in a car parked in the loading dock area of a grocery store.  He thought that Madden was committing a parking violation, and he also thought it was suspicious because it was an unusual place for a car to be parked.  So he approached Madden, asked him what he was doing, and requested his driver's license.  Madden explained that he had run out of gas and he was waiting for a friend to bring fuel, and that he didn't have his license on him (driving without a license in one's possession is a violation of Oklahoma state law).

   Sgt. Balderrama instructed Madden to get out of the car, and detained him in the back seat of the patrol car while he investigated.  While Madden was in the back seat, Balderrama asked if there were weapons or drugs in the car (Madden said no), asked for consent to search (Madden said no), and asked about felony convictions (Madden admitted that he had just gotten out of prison after an armed robbery conviction).  Balderrama then discovered a couple of warrants for Madden's arrest, and arrested him.

   During a subsequent search of Madden's car, Balderrama found a gun.  Madden was charged with the Oklahoma version of POWPO, but at a preliminary hearing the charge was dismissed because the trial court held that the car had been improperly impounded and therefore illegally searched.  Bad search = suppressed gun = no case.

   In 2008 (after serving a two year sentence on unrelated drug charges), Madden was indicted in federal court for being a felon in possession of a firearm.  The charges were based on these events.  Madden filed a motion to quash the indictment based on Fourth, Fifth, and Sixth Amendment violations.  After his motion was denied, he conditionally pled guilty and appealed.  I won't go into too much detail on the Fifth and Sixth Amendment violations here (5th: due process.  He argued that filing the charges so far after the event was a due process violation because if the feds hadn't done that, he might have been able to serve his weapons possession sentence concurrently with the drug case.  The Tenth said that this isn't a due process violation.  6th: speedy trial.  Madden argued that the charges happened too far after his arrest.  The Tenth held that speedy trial calculation for federal charges begins with the arrest for federal charges, not with the arrest for state charges, even if the charges arise from the same behavior.  So both arguments failed).

   It's the Fourth Amendment stuff that we're really interested in, and there's a lot of it in this decision.  The essence of Madden's argument is that the entire stop was unjustified, and therefore Balderrama's search of his car was illegal and the gun should be suppressed.

   The Tenth Circuit reviewed the different legal justifications for police contact:

This court has previously identified three categories of police-citizen
encounters: (1) consensual encounters which do not implicate the
Fourth Amendment; (2) investigative detentions which are Fourth
Amendment seizures of limited scope and duration and must be
supported by a reasonable suspicion of criminal activity; and (3)
arrests, the most intrusive of Fourth Amendment seizures and
reasonable only if supported by probable cause

   The trial court had apparently ruled that Balderrama's encounter with Madden began as a consensual contact, and only became an investigative detention when Madden was removed from his car.  This is because up until that point, Balderrama had done nothing to communicate to Madden that he was not free to terminate the encounter, or that his request for a license was compulsory.

   By the time Madden was removed from his car, Balderrama had reasonable suspicion that Madden had been driving without his license in his possession.  The stop became an arrest shortly afterwards, when Balderrama learned of Madden's warrants.  Now on to the search: at the time that these events took place, clearly established case law established that the police could search the passenger compartment of a car incident to the arrest of an occupant.  Since that time, Gant has changed the way search of a car incident to arrest works, so that a search such as Balderrama's could not be justified that way.  But under the good faith exception, the exclusionary rule does not apply to evidence which is seized during a search which is objectively reasonable under current case law, even if the courts later rule that similar searches are unconstitutional.  This is because the whole point of the exclusionary rule is to discourage police misconduct, and suppressing evidence when the police were acting reasonably does not accomplish that goal.

   Madden argued that the good faith exception should not apply for a variety of reasons: first, he argued that Oklahoma doesn't recognize the good faith exception.  But the federal courts don't care what Oklahoma recognizes, and this was an appeal in a federal court.  Madden argued that Balderrama did not justify the search as a search incident to arrest, but as an inventory (prior to an impoundment which the state court had deemed improper).  But the good faith exception is an objective test; it doesn't matter what an officer's intent or understanding of the law is, what matters is whether the circumstances would justify his actions and whether a reasonable officer would have known this.  In other words, Balderrama thought he was able to search the car as an inventory prior to impound, but his actions were actually justified (at the time) as a search incident to arrest.  So the search was good, even if Balderrama didn't understand why.

   As an aside, the court noted that Balderrama at least partially justified the search as a search incident to arrest, and also noted that it wasn't bound by the state court's decision holding the impound to be improper.  Since the search was justified as a search incident to arrest, the court didn't bother to decide whether or not the search could also be justified as an inventory.  The court just pointed out that it could have decided that if it wanted to.

   Madden also argued that Balderrama had lied at a suppression hearing, and therefore acted in bad faith, and therefore the good faith exception should not apply.  The Tenth noted that the trial court had found Balderrama's account of when he actually found some ammo to be suspicious, but had not actually concluded that Balderrama lied.  More importantly, the court held that the good faith exception doesn't hinge on the individual officer's actual good faith.  It's an objective test, which hinges on whether or not the officer's actions at the time of the arrest were reasonable under then-existing law.

   So the Tenth Circuit affirmed the denial of Madden's motion, and his conviction stands.  Really, the most important lesson that cops can take from this case is just to keep your actions in line with currently binding case law.  Even if new decisions change the legal landscape before the case goes to court, the courts won't expect you to have seen the change coming.

Monday, June 18, 2012

Colorado Supreme Court People v. Vissarriagas 11SA288

Decision here.

   Police were conducting surveillance on a suspected drug house, and when some of the occupants left in a car they followed it with the intent to find an independent reason to stop it, and to search it if the circumstances allowed.  The car ran a red light, the driver had no license or insurance, and the license plates didn't actually belong no the car (or on any other car, apparently).  Vissarriagas (I'm already sick of typing that name) was a passenger, and she was arrested after the police learned that she had a warrant.

   During a pre-impound inventory of the car, police found an open purse with heroin and paraphernalia.  Vissarriagas was charged with possession, and moved to suppress the search on the grounds that it was conducted with neither consent nor warrant.

   The trial court actually did suppress the evidence, on the spurious grounds that the entire traffic stop was invalid since it was a pretextual stop.  The court held that the driver had run a red light, but ruled that since the police were looking for a reason to stop the car to further another investigation, the stop was invalid anyway.  Naturally, the prosecution appealed.

   The Colorado Supreme Court held that where there is an objectively reasonable basis for a stop (like running a red light, just for one totally random example), it doesn't matter what the police officer's subjective intent is.  So contrary to the trial court's ruling, the stop in this case was valid.  The supreme court also explained that an inventory of a vehicle which is lawfully in police custody is an exception to the warrant requirement, so long as the inventory is conducted in accordance with department policies and not as a pretext for an investigatory search (an important distinction: the fact that an officer hopes to find incriminating evidence in such a search is not enough to render it illegal.  The focus of the court's inquiry should be on the objective reasonableness of the officer's actions.  The search must be conducted according to standardized criteria with some basis other than criminal investigation).

   The trial court had already incorrectly suppressed the evidence on the basis of a bad stop, so the issue of whether or not the inventory was conducted according to policy was never explored at the trial level.  This meant that there was insufficient evidence in the record for the supreme court to resolve this issue.  The decision of the trial court was vacated, and the case was sent back to the trial court with instructions to determine whether or not the search itself was good (with the understanding that the stop was valid).

   I've always wondered what it's like to bring a case in front of the same judge after his previous findings have been reversed by a higher court.  It seems like it would be awkward.

Colorado Supreme Court People v. Lynn 12SA97

Decision here.

   Lynn was in custody for parole violations unrelated to the case at hand, when a Sterling PD detective wanted to interrogate him about a case of kidnapping, assault, and menacing.  While the detective was reading Lynn his Miranda rights, Lynn asked "When can I talk to my lawyer?" in an assertive tone.  The detective answered "You want to talk to a lawyer?  You say that, I'm done?  Do you want to talk to a lawyer now?"

   Lynn answered by asking if he could talk to a lawyer after the interrogation if he did choose to talk.  That led to the following speech from the detective (the court noted that he was hurrying through it):

"Absolutely.  Oh yeah, this isn't over.  I want to hear your side of it now so
I can get going with the case and figure out what I'm going to tell the DA.
OK, 'cause all I have is one side of the story.  I have your one half with all
the witnesses saying this, I want to hear why you did this. . . .
And that's what I want to hear from you.  I want to hear your complete
side of it.  OK?  And that is important.  Alright, no, but you got to sign the
bottom, and I need your right hand, dude.  You need another clipboard or

anything you want to talk about.  Dude, this is where you got to read this
And like I said, you don't have to tell me anything, you can  just  tell me
part.  Do you wish to still speak to me with these rights in mind, if that's
the case?  Now like I said, you can tell me anytime to pound the sand get
out of here I don't want to talk about it.  OK?  So what's your side of it?
So I can hear that side of it, so I can present that with the case, man.
'Cause I really am, I'm looking at these two sides of it, I don't want to
present what I have, a brutal assault by itself without any circumstances,
you know what I mean?  It's like looking at something in war.  You look at
somebody shooting somebody in war, you know what I mean?  They're at
war, there is a circumstance.  Why did you do what you did?"

   Lynn talked, and made incriminating statements.  The trial court suppressed the statements, and the people filed an interlocutory appeal.

   The Colorado Supreme Court affirmed the suppression.  In coming to that conclusion, the court noted that when a suspect (in custodial interrogation) invokes his rights, the police must scrupulously honor that request.  Any such request by a defendant must be unambiguous, but the potential ambiguity turns on the totality of the circumstances, not just on the suspect's choice of words (in this case, some of the most pertinent factors were Lynn's tone of voice, the fact that he made his request during the Miranda advisement, his awareness of the charges against him, and the detective's characterization of the crime as "brutal" when talking to him).

   In cases where a defendant makes an ambiguous request for a lawyer, the police may continue with questioning which is designed to clarify the suspect's intent.  So it is permissible to ask a suspect whether or not he wants a lawyer if you're not sure what he meant.  But if it's obvious that the suspect is invoking his rights, then even clarifying questions are not permissible.

   In this case, the court held (after listening to the tape) that Lynn's request was obviously a request for a lawyer rather than a speculative question about when one would be available.  The court also held that even if it hadn't been an unambiguous request, the detective's little speech was not designed to clarify Lynn's intent but rather to convince him to waive his rights.  The court also noted that Lynn's subsequent ambiguous request (where he asked about talking to a lawyer after the interrogation) wasn't relevant, because it was made after he had already asked unambiguously for a lawyer.  

   This whole decision is basically the court's way of saying "no, really" when it comes to scrupulously honoring a suspect's invocation of his rights.

Saturday, June 16, 2012

Tenth Circuit US v. Cruz 11-2136

Decision here.

   In March of 2010, police searched Cruz's home and found baggies of meth, cash, fake IDs, and horse steroids (which are apparently used to cut meth.  Holy hell!).  There was no paraphernalia associated with actually using meth found in the home, though.  Cruz was charged with (and eventually convicted of) possession with intent to distribute.  A week prior to the raid, police had watched a controlled buy with a confidential informant.

   The informant did not testify, and the prosecution did not disclose the informant's identity.  Instead, police testified that they watched the informant go into the house, then come back out with something that tested positive for meth.  One of Cruz's arguments on appeal was that the court had erred in not disclosing the identity of the informant.

   The Tenth Circuit observed that whether or not an informant's identity needs to be disclosed depends on the facts of the case.  The courts are required to balance the defendant's interest in mounting a defense against society's interests in protecting the identity of informants (for their safety, and for the sake of future investigations).  Courts which have held that an informant's identity must be disclosed have generally done so under circumstances where an informant was the only witness who could support a defense theory or refute a prosecution witness.  Courts which have held that an informant's identity may remain secret have generally done so under circumstances where the value of the informant to the defense was speculative or irrelevant.  In this case, the court held that the informant's testimony was more likely to incriminate Cruz, and that the controlled buy hadn't formed the basis of Cruz' indictment (the basis was the evidence found in the search).  Cruz's conviction was affirmed, as was the order denying the disclosure of the CI's identity.

Saturday, June 9, 2012

Tenth Circuit US v. Neff 10-3336

Decision here.

   Neff was driving along I-70 in Kansas, in a rural area.  After passing signs that warned of a drug checkpoint ahead with K9s in use, Neff took the next exit.  Of course, narcotic checkpoints are illegal and there was no such checkpoint ahead.  The signs were part of a ruse, and Kansas state troopers were conducting surveillance of the next exit with the intention of finding a reason to stop cars that took it.

   A trooper followed Neff after he left the highway, and noted that Neff's car was registered to a nearby city.  This particular exit was a gravel road which led to a few houses, but no businesses.  Neff turned in to one of the driveways, stopped there briefly, looked suprised to see the Trooper, and then tried to drive back to the interstate.  The trooper had gotten out of his car by now, and held out his hand directing Neff to stop.  The trooper had not witnessed any traffic violations, and would later testify to the reasons that he stopped Neff:

"The reason I stopped him is they got off the interstate after
seeing the drug check lane ahead signs, it was a Shawnee
County car went into a rural Wabaunsee County area, pulling
into a driveway where I don't think the vehicle belonged, the
surprised look that the driver gave me, the short time that they
stayed there, the surprised look that he gave me.  I thought
something is very suspicious about this that I didn't really
care for or didn't like.  Therefore, I stepped out of the vehicle
when he pulled out.  That's when I stopped them."

   Really didn't care for or didn't like... wow.  Just wow.

   Anyway, Neff stopped, the trooper directed him to get out of the car, frisked him (the court didn't bother to address whether or not this was legal), and then searched the car after Neff admitted to having a crack pipe on him.  The car contained $10,000 and lots of cocaine.  Neff moved to suppress the evidence, arguing that the trooper stopped him without reasonable suspicion.  The trial court denied his motion, and he appealed.  The Tenth Circuit ruled that although Neff's apparent attempt to avoid the drug checkpoint could be used as a factor in developing RS, it wasn't enough.  Further, the additional facts that the trooper testified to contributed only marginally, and taken as a whole all of this still didn't amount to a reason to stop Neff.

   The court compared this case to Illinois v. Wardlow, which involved a sudden unprovoked flight from the police.  Although that was reasonable suspicion, nothing in this case rose to that level.  The evidence was suppressed, and Neff's conviction was reversed.

Colorado Court of Appeals People v. Taylor 09CA2681

Decision here.

   Undercover narcotics investigators watched Taylor make gestures which they later testified were consistent with trying to initiate drugs sales.  So they asked him for a hook up (specifically crack).  He told them that he doesn't sell drugs, but offered to call a dealer for them.  He made the call, and a female showed up and sold the cops some crack.  Both the dealer and Taylor were arrested after the sale.  Incident to the arrest, a sergeant checked Taylor's cell phone call log.

   Taylor was convicted of conspiracy to distribute a controlled substance (and acquitted of actually distributing said controlled substance).  He appealed his conviction on several grounds: he argued that the search of his cell phone was unlawful, that the court should have given the jury an entrapment instruction, and that the court improperly denied one of his juror challenges (I won't be summarizing the juror challenge issue, but the appellate court didn't buy it).

   As far as entrapment goes, in Colorado entrapment is an affirmative defense which the defendant has to present some evidence of in order to  claim.  The court held that since Taylor was contesting the allegations, he couldn't claim the defense.  The court also explained that nothing in the record would have supported an entrapment defense anyway (the fact that the police initiated contact with Taylor and asked him to sell them drugs wasn't the sort of action that would induce someone to commit a crime they were not already predisposed to, so it wasn't entrapment).

   But most of the decision deals with the search of the cell phone.  The trial court apparently held that the search was admissible as a search incident to arrest, and alternately that it was admissible based on exigency or on plain view (I have no idea what facts could possibly support either conclusion, but the court of appeals didn't address either one).  The court of appeals observed that the authority to search incident to arrest is based on the authority to arrest, and does not depend on any independent suspicion of weapons or contraband.  And although over time the courts have frequently modified police authority to search the area within a suspect's control, the authority to search a suspect's person has remained constant.  The court held that in this case, searching the phone's call log incident to arrest was valid.

Colorado Supreme Court People v. Arapu 11SA326

Decision here.

   ICE was investigating Arapu for being illegally present in the country, and did a knock & talk at his house.  Like ICE does, they brought the local PD to keep them safe.

   Arapu answered the door, and refused to allow the ICE agents into the apartment.  They talked through the door, and when the agent asked Arapu for his papers Arapu said that another woman in the apartment could go get them.  The ICE agent (apparently having some pretty screwed up ideas about the scope of consent) told Arapu that either the woman would have to come out of the apartment or they would come in.  You know, for officer safety reasons.  In response to this, Arapu invited Detective Chi and only Detective Chi into the apartment.  Detective Chi was one of the local PD who ICE had brought along, and apparently he had treated Arapu fairly during a previous investigation.

   At this point, I would have walked away.  I'm not in the habit of going into places alone, and when all I've got is consent I'm also not in the habit of forcing issues.  But Detective Chi went into the apartment to keep an eye on the woman.  While inside, Arapu let him know that there was a toy gun in the apartment (Chi picked up the gun and confirmed that it was a toy).  After about 20 minutes of talking, one of the ICE agents arrested Arapu.  The woman inside the apartment said she had to leave for work, and Chi asked for her identifying info before she left.  Since she didn't have ID, one of the ICE agents entered the apartment to question her (the court case doesn't offer a shred of clue what legal justification the ICE agent had for coming in).  One of the other local officers entered as well (for some reason), and noticed another gun.

   While Arapu was being arrested, he asked the woman to lock up the apartment.  Chi offered to do that, and Arapu agreed (ICE eventually arrested the woman, anyway).  While Chi was getting Arapu's keys, he noticed a bag of (suspected) cocaine.  ICE left with their prisoners, and the local PD left the apartment.  Chi locked up, and he left the gun and cocaine where they were.  Based on the observations of the gun and cocaine, Chi obtained a search warrant, returned to the apartment, and seized these items (along with paraphernalia, weed, and some prescription pills).

   At his trial, Arapu moved to suppress everything based on Chi's allegedly illegal presence inside his apartment.  The trial court held that Chi had been given consent to enter the apartment to watch the woman who was with Arapu, but that he had exceeded the scope of this consent when he asked the woman for her ID while they were still in the apartment, and also when he had remained inside the apartment until the ICE agents had left.  Accordingly, all the evidence was suppressed and the people filed an interlocutory appeal.

   The Colorado Supreme Court ruled that Arapu had allowed Chi into the apartment to watch this woman, and that this consent naturally included asking for her ID.  The court also noted that Arapu had allowed Chi to remain in the apartment to lock it up, and that it wouldn't make much sense to expect Chi to do that before the feds left.  On the other hand, the feds and the other local officers did not have permission to enter, so the observations of the gun inside the apartment were the result of an illegal search and inadmissible.  Any mention of the gun had to be redacted from Chi's search warrant affidavit.

   Even after redacting any mention of the gun, the affidavit established PC.  Since the gun would have been found during a search for drugs, the court ruled that the gun was still admissible even though it had initially been illegally discovered.  The case has been sent back to the trial court, and the suppression of the evidence has been reversed.

   The trial court had also found fault with Chi for not interfering with the ICE agents' illegal entry into the apartment.  As far as that goes, the supreme court said "We are aware of no authority, and none has been brought to our attention, that would impose an obligation upon, or give authority to, a municipal law enforcement officer to direct how a federal investigation should be conducted."  If you've ever been called to assist the feds, that probably comes as a relief.

Tuesday, June 5, 2012

US Supreme Court Reichle v. Howards 11-262

Decision here.

   This decision deals primarily with intricate questions of legal precedent, and in order to simplify the question the court didn't resolve the issue which would have had the most lasting significance.  If you decide to skip this post, I understand.  If you decide to wade through it, don't say I didn't warn you.

   In 2006, Vice President Cheney put in an appearance at a mall in Colorado.  Howards was there, and a secret service agent overheard him saying that he was going to ask Cheney how many kids he had killed today.  So the secret service decided to keep an eye on Howards.  When he did get his chance to talk to the VP, he softened his message a little bit and just told him that his policies in Iraq were disgusting.  Cheney thanked him, and walked away.  As he was leaving, Howards touched Cheney's shoulder (later, Howards would testify that this was a light pat on the shoulder.  Several secret service agents would testify that it was a forceful shove).

   It was decided that Reichle (a secret service agent) should have a discussion with Howards.  Reichle hadn't heard Howards "how many kids" comment, and also hadn't witnessed the shove (or friendly pat on the shoulder, if you prefer), but he was briefed by officers who had.  Reichle met with Howards, and asked him if he had touched the VP.  Howards tried to walk away from the stop, and also said that he had not touched Cheney, and Reichle arrested him.  Howards was turned over to local law enforcement and charged with harassment, but the charge was dismissed.  Howards sued the secret service, alleging that he was arrested and searched in violation of the Fourth Amendment, and that his arrest was made in retaliation for exercising his First Amendment right.

   Now for some legal background.  The courts have previously held that an arrest which does not violate the Fourth Amendment (because there is probable cause) can still violate the constitution if it violates a different amendment (this is from Whren v. US.  In that case, a traffic stop was supported by probable cause but allegedly motivated by racism.  The court held that the traffic stop was reasonable under the Fourth Amendment, but that it could still be a violation of the equal protection clause of the Fourteenth Amendment).  Although an officer's subjective intent when making an arrest is irrelevant to Fourth Amendment analysis, it isn't necessarily irrelevant to First or Fourteenth Amendment analysis.  The Supreme Court recently (2006) ruled that in cases where a suspect is prosecuted in retaliation for exercising his First Amendment rights, but the actual charges are supported by probable cause, the suspect can't sue for retaliatory prosecution (that was from Hartman v. Moore, and I have no idea what the facts of that case were).

   Here is where the courts really start splitting hairs.  The secret service agents moved to dismiss the lawsuit, claiming qualified immunity.  The trial court denied the motion, and they appealed.  The Tenth Circuit held that Hartman only applied to retaliatory prosecution, and not retaliatory arrest, and so they held that the officers were entitled to qualified immunity on Howards' Fourth Amendment claim (the supposedly unreasonable arrest and search), but that they would have to stand trial on his First Amendment claim (the arrest in retaliation for protected speech).   The agents appealed again.

   As with all qualified immunity cases, there are two questions to be answered: first, did the police violate a constitutional right?  Second, was that right clearly established (so that a reasonable officer would understand the contours of the right)?  If the answer to either question is "no," then the officers are entitled to qualified immunity and the case has to be dismissed.  If the answer to both questions is "yes," then the officers have to stand trial (where they could still win or lose.  Losing qualified immunity isn't the same as being found guilty, it just means that the lawsuit can move forward).

   The US Supreme Court held that the decision in Hartman v. Moore had sufficiently muddied the waters so that it was not clearly established whether or not the secret service agents had violated Hartman's constitutional rights.  Therefore, the agents are entitled to qualified immunity and the case is dismissed.  Since addressing this one question was enough to resolve the case, the court didn't bother to decide whether or not a retaliatory arrest which is supported by probable cause violates any constitutional rights.  I suppose that as long as we don't make retaliatory arrests, the question is mostly moot.

Friday, June 1, 2012

Tenth Circuit US v. Whitley 11-8078

Decision here.

   An ATF agent received a phone call (from a former prosecutor) informing him that Whitley had been seen in possession of a gun.  The ATF agent began his investigation, obtaining copies of the court records that confirmed that Whitley was a convicted felon.  Before he could get much further, he got another call (from the same former prosecutor) alleging that Whitley was loading an antelope into the back of his pickup truck (hunting season had just started).  From this, the agent inferred that Whitley probably had his gun with him right now.  He contacted the local sheriff and the Wyoming Game & Fish Department, and put out a BOLO for Whitley.  He requested that officers find their own reason to stop Whitley, and informed them that he suspected Whitley to be a felon in possession of a firearm.  Then the ATF agent went off in search of Whitley.

   A sergeant with the sheriff's department found him first, and saw that he had an antelope in the back of the pickup truck.  He initiated a traffic stop for the purported reason of making sure that the antelope was properly tagged.  On his initial approach to Whitley's truck, he saw a couple of rifles in plain view in the passenger compartment.  The ATF agent who put out the BOLO also responded to the stop, and they searched the truck.  They found more guns and ammo, and Whitley consented to a search of his house where they found more guns.  Whitley was charged with being a felon in possession of a firearm.

   Whitley moved to suppress the guns.  He argued that since he wasn't being stopped for a traffic violation, the officer should have to establish probable cause rather than reasonable suspicion in order to stop him.  The court held that RS is still the applicable standard that justifies a stop.  He also argued that there was no reasonable suspicion, in part because it was possible that he had been bow hunting.

   The court applied the collective knowledge doctrine, and held that the information known to the ATF agent amounted to reasonable suspicion and that this suspicion was communicated to the other officers involved in this case.  The court did not address whether or not the deputy's supposed basis for the stop was sufficient to justify it, since the ATF agent had already communicated that there was reasonable suspicion.  Finally, the court acknowledged that it was possible that Whitley had been bow hunting, but held that in order to establish reasonable suspicion it is not necessary to eliminate every innocent explanation of the facts (reasonable suspicion may exist even where it is more likely than not that there is no criminal activity).

   The order denying the suppression was affirmed.