Sunday, October 28, 2012

Colorado Court of Appeals People v. Berdahl 11CA0423

Decision here.

   This one is bad.

   Before sunrise in early January, a deputy was dispatched to check the welfare of a stranded motorist on the highway.  The deputy (and a trooper who we'll be meeting in a moment) would later testify that it was really cold.  While the deputy was on his way, he encountered Berdahl.  Berdahl was walking down the road half frozen, and the deputy stopped to render assistance.  Turns out Berdahl had been one of the occupants of the stranded car, and he was trying to go get help.  His girlfriend was still at the car.  The deputy gave Berdahl a ride back to the car after patting him down for weapons.

   Berdahl's girlfriend wasn't doing too well, either.  They had apparently tried to call for help, but no one would come and now their phone was dead anyway.  They had tried to light a fire in a barrel.  Basically, they were screwed.  They waited and warmed up in the deputy's car while he tried to make arrangements for them.

   Enter CSP.  A trooper arrives, and the deputy tells him what's going on.  He agrees to give Berdahl and his girlfriend a ride to a nearby town, since they can't very well be left to fend for themselves against the elements.  Before giving them a ride, he searches Berdahl ***but not his girlfriend.***  That bites him in the ass in court later, and is yet another reason that we should be conducting opposite sex searches the same way we conduct same sex searches.  Anyway, during the search the trooper finds a pipe and a small bag in Berdahl's sock (which the deputy had apparently missed).  He doesn't really examine them until he's already giving the pair a ride, and then he realizes that the bag contains meth.  Berdahl finds himself arrested.

   Berdahl tries to have the evidence suppressed.  The trial court rules that the encounter wasn't really consensual on Berdahl's part, because Berdahl's two options were 1: submit to the search and get a ride, or 2: freeze to death.  Still, the trial court held that the search of Berdahl's person was reasonable for "officer safety."  As a side note, I think that the words "officer safety" are two of the most dangerous words to our profession, perhaps surpassed only by the word "articulate."  We tend to say "officer safety," and then forget that the justification for what they did needs more explanation.  But I digress.

   Berdahl appealed, and the court of appeals held that placing someone in the back seat of a patrol car does not confer the authority to search that person, even when it's all but unavoidable (as in this case).  Although the court acknowledged that putting an unsearched person in the back of a car does pose a risk, the court also noted that the trooper seemed happy enough to face this risk with Berdahl's girlfriend.  And since there was no other evidence to justify the search, and no policy testified to that would require such a search, the search was not constitutionally permissible on safety grounds.

   On the other hand, the court of appeals didn't exactly like the trail court's reasoning on the issue of consent.  The court of appeals pointed out that the question shouldn't have been whether or not the encounter was consensual, but whether or not the search itself was consensual.  The case was sent back to the lower court for a hearing to determine that issue, which will decide the outcome of this case.

   But either way, we all get stuck with this decision.  The damage is limited to a pretty specific set of facts, but situations like this aren't that rare.  I hope to see this one reversed.  

Colorado Court of Appeals Young v. Hodges 11CA2193

Decision here.

   Hodges is a deputy sheriff who was transporting a couple of handcuffed juvies in a van, didn't seat belt them, and crashed.  The juvies were injured, and their parents sued.  Hodges tried to claim immunity under the Colorado Governmental Immunity Act, which sets the rules for suing the state (or any of its political subdivisions or employees).  Part of the Act says you can't sue the state in its own courts, unless the lawsuit arises from certain exceptions (such as operating a motor vehicle).  Think of it as Qualified Immunity's evil twin from a parallel universe.  Looks similar, works differently.

   Amidst discussion of the meaning of the word "operate," the court of appeals ruled that we can be sued for not seatbelting handcuffed prisoners.  There you go, don't forget to do that.

Tuesday, October 23, 2012

Tenth Circuit Kaufman v Higgs 11-1390

Decision here.

   The Colorado State Patrol were investigating a hit and run accident (someone hit an unoccupied car in a parking lot), and they had a witness who identified the driver as a woman, the passenger as a man, and gave a license plate number.  Kaufman's license plate number.

   CSP spent a couple weeks trying to get ahold of Kaufman, and eventually talked to him on the phone.  He agreed to meet them at his house later in the day.  When they showed up, he refused to tell them who was driving.  After conferring with their supervisor (who is also a defendant in this case, not that this helps the hapless troopers any), the troopers arrested Kaufman for obstruction.

   In case the troopers aren't the only ones who have forgotten, here's what the relevant portion of the obstruction statute says:

A person commits obstructing a peace officer . . . when, by
using or threatening to use violence, force, physical interference,
or an obstacle, such person  knowingly obstructs, impairs, or
hinders the enforcement of the penal law or the preservation of the
peace by a peace officer, acting under color of his or her official authority...

   So, since not all the elements of this statute were met, the charges were unsurprisingly dropped.  And Kaufman sued.  The troopers filed a motion for qualified immunity, which the district court inexplicably granted.  Kaufman appealed.

   The Tenth Circuit explains that in order to overcome qualified immunity, a plaintiff has to show that the police violated a right, and that the right was clearly established at the time.  People have the right not to be arrested without probable cause.  And unless probable cause was arguable, that right is clearly established.  Applying that to this case: it's well established that people have the right to refuse to answer questions (or even to simply terminate the encounter) during a consensual stop.  Kaufman was simply exercising his rights.  More to the point, there is nothing in the statute which criminalizes his actions, and any reasonable officer would have known that.

   The lower court was reversed, qualified immunity denied.

Monday, October 22, 2012

Tenth Circuit US v. Salas-Garcia 11-2204

Decision here.

   With the help of a confidential informant, police were investigating Castaneda for selling drugs (brokering them, technically, but whatever).  Castaneda was supposed to deliver a lot of cocaine to a hospital parking lot for one such transaction.  Police followed in unmarked cars while Castaneda and Salas-Garcia drove separate cars from a tortilla factory to the hospital (and the officers later testified that using multiple cars like this is a common counter-surveillance technique used by drug dealers).  When the two cars got to the hospital, and parked in different parts of the parking lot, the CI told the police that the drugs had arrived.

   At the investigator's direction, marked cars showed up and stopped both cars.  They didn't conduct high-risk stops, but they did get Salas-Garcia out of the car, handcuff him, and search him (whilst informing him that he was not under arrest, but only being detained for an investigation).  Salas-Garcia was read the Miranda warnings, after which he admitted that there was a kilo of cocaine in the car he was driving.

   Salas-Garcia was released from handcuffs after about 5 minutes and told he could leave, but he agreed to stay.  Officers obtained a warrant and searched his car, found the drugs, and arrested him.  He later argued in court that his detention had been an illegal arrest and that the drugs and his statements should be suppressed as fruit of the poisonous tree.  The motion was denied, and he appealed.

   The Tenth Circuit held that Salas-Garcia's detention was both reasonable at its inception and reasonably related in scope to the circumstances which justified it.  The court also noted that the use of handcuffs does not necessarily convert a detention to an arrest (for fourth amendment purposes)*, and that particularly in this case where the officers were investigating a large drug transaction, where large drug transactions often involve guns, and where there were numerous other members of the public present, using handcuffs to restrain Salas-Garcia was reasonable (the court hinted that actually proning him out at gunpoint might not have been reasonable without more information, but didn't come right out and say that).  The denial of the motion to suppress was upheld.

* This is important because if the stop were converted to an arrest, it would need to be justified by probable cause which the police did not yet have, so the evidence would need to be suppressed.  It's also worth noting that the court pointed out that a Terry stop which exceeds its scope is converted to an arrest, and therefore must be justified by probable cause.

Saturday, October 20, 2012

Tenth Circuit US v. Bagby 11-5050

Decision here.

   Tulsa police received a tip that Bagby was selling cocaine out of his house.  Plainclothes officers set up surveillance, and when they saw Bagby leave in a car they followed him.  Bagby committed a number of moving violations, so they called for a marked car to make a traffic stop.  That happened.

   While the traffic stop was going on, the plainclothes guys went bag to Bagby's house to do a knock and talk.  The owner of the house (who allowed Bagby to live there) allowed the officers inside and consented to a search of the house.  The officers searched, but they stayed out of Bagby's room because it was Bagby's room and he wasn't there to consent.  Meanwhile, the officers on the traffic stop somehow developed information that Bagby stored cocaine in the unattached garage (probably because Bagby didn't know when to STFU).  The plainclothes officers received consent to search the garage (and a key to the garage) from the homeowner, who told them that he doesn't go in there much.  They found cocaine base.

   The officer on the traffic stop was told to bring Bagby back to the house.  He did, and the cops read him Miranda (which he waived).  For the remainder of the investigation, Bagby said a lot of shit that he probably later regretted.  He tried to bribe the police (he told them if they just took the money and drugs and left, he wouldn't say anything), told them where in the house to find more money and drugs, and when one officer asked him about the food he steals from children's mouths by getting their parents hooked on cocaine (really, officer??), Bagby mentioned the food that he provides by selling cocaine.  He also bragged of his drug measuring prowess, and specifically admitted to ownership of the cocaine.

   After helping the police to build such a strong case against him, he took the case to trial for some reason (where he represented himself).  Go figure, he was convicted.  He appealed his conviction on several grounds, but the only one that's all that important here is that he argued the evidence presented was insufficient to support his conviction.

   The prosecution had relied on a constructive possession theory.  Constructive possession (as opposed to actual possession) means that someone exercises dominion or control over an item even though they may not be currently holding it.  Here's how the trial court summed it up in jury instructions:

A person who, although not in actual possession, knowingly has 
both the power and the intention at a given time to exercise dominion or 
control over an object, either directly or through another person or persons, 
is then in constructive possession of it.
More than one person can be in possession of an object if each 
knows of its presence and has the power and intention to control it.
A defendant has joint  possession of an object when two or more 
persons share actual or constructive possession of it.   However, merely
being present with others who have possession of the object does not 
constitute possession.
In this situation where the object is found in a place (such as a room 
or a car) occupied by more than one person, you may not infer control over 
the object based solely on joint occupancy.  Mere control over the place in 
which the object is found is not sufficient to establish constructive 
possession.   Instead, in this situation, the government must prove  some 
connection between the particular defendant and the object.

   So in this case, the government relied on such evidence as Bagby's admission that he owned the drugs to prove a connection between Bagby and the drugs.  Bagby's argument at trial was that it turned out the drugs were actually someone else's, and the police just never found the drugs which he had admitted to owning.  That argument went exactly as far as you would expect, and Bagby's conviction was affirmed.

Tenth Circuit Martinez v. Carson 11-2095

Decision here.

   Employees of the New Mexico DOC were participating in a task force with members of the Rio Rancho Police Department, patrolling a high-crime area at night (who lets DOC employees go on patrol?  No offense to them, they're good at what they do, but what they do isn't that).  The DOC employee saw three guys standing in the dark outside an apartment building (actually, one of them was crouched down), and so they conducted a high-risk stop.  

   Yep.  I hope there's more, but as far as the court record knows these three guys were gunpointed, searched, and handcuffed for being in a dark area.  At night.  The DOC employees then turned the "suspects" over to members of the police department, who arrested them for something (the decision doesn't tell us what).  The "suspects" eventually sued both the DOC employees and the police officers, since this whole arrest was based on a stop which was not based on probable cause.  Of course, everyone tried to claim qualified immunity, and of course it didn't work.

   The cops ended up settling with the plaintiffs, but the DOC employees took it to trial.  And lost (each of the plaintiffs won $5k, half of which was punitive damages).  One of the issues that came up in the trial was whether or not the DOC employees could be held liable for the continued unlawful detention at the hands of the police department, or only for the first few minutes of unlawful detention before they transferred custody of the "suspects" to the police.  The trial court had only held the DOC guys accountable for their own actions, and after winning the trial the plaintiffs appealed that portion of the verdict.

   The tenth circuit held that if it hadn't been for the illegal actions of the DOC employees, the "suspects" would not have been subsequently illegally detained by the police, and that the DOCS guys really should have known that.  The case was remanded for a new trial limited to the issue of how much of the later illegal detention the DOC guys were responsible for, meaning that even though they've already lost they could still be even more liable.

   So if you make an illegal stop, consider yourself to have potentially bought whatever happens to the person you stop after that (even if you turn them over to someone else).

Saturday, October 13, 2012

Colorado Court of Appeals People v. Wilson 10CA0788

Decision here.

   Wilson raped a woman at gunpoint, and was caught five years later because of DNA evidence.  He was convicted, and he appealed for various reasons.  His conviction was reversed and the case remanded for a new trial because of some issue with jury selection, but the court of appeals also addressed some other arguments to prevent them from coming up again after the new trial.  The only one that matters to this blog is a Miranda issue.

   Part of Wilson's defense is that he was never in Colorado, and so the prosecution presented some evidence that he had ties to the state.  A deputy who was transporting Wilson from California to Colorado had asked him a few questions during the transport about whether or not anyone knew he was going to Colorado, and whether certain family members in Colorado would accept collect calls.  Useless information, normally, and the deputy testified that he asked these questions just to make small talk, so he could ascertain Wilson's level of cooperation.  

   It is undisputed that Wilson was in custody.  It is also undisputed that he had not waived Miranda.  So the question is whether or not the deputy's questions amounted to interrogation.  Interrogation has been interpreted by the courts to mean any words or actions by the police which are likely to elicit an incriminating response.  Interrogation specifically does not include questions that are just part of the arrest procedure (like name, address, etc), but it also doesn't include small talk or casual conversation.  I don't think I'd want to push that particular point, because it seems like it would be tough to convince the court that chatting with a suspect wasn't an attempt to gain information.  However, in this case it was pretty obvious: the deputy wasn't part of the investigation at all, he was just a transport officer.  He really had no way of knowing that the answer to a question like "does your wife accept collect calls from you?" would become evidence in a rape trial.  His small talk did not amount to interrogation, so the statements were properly admitted at trial.

Colorado Court of Appeals People v. Williams 10CA2045

Decision here.

   Williams participated in a drug rip at a tattoo shop.  He and one of four co-conspirators went into the tattoo shop through the back door, threatened the three occupants (the owner/drug dealer, the owner's wife, and some other person) with guns, and told them to get on the ground.  The owner put up a fight, Williams shot him, and he died.  The suspects searched the shop and stole some drugs, along with some money from the owner's pockets, and left.

   Williams was eventually convicted of felony murder, along with three counts of aggravated robbery (robbery is charged one count per victim, rather than per stolen item).  He appealed on several grounds, two of which will be discussed here.  There was a weird little fruit of the poisonous tree issue, and a question of whether his conduct actually met the elements of aggravated robbery.

   Fruit of the poisonous tree: some of the evidence presented against Williams was the testimony of one of his associates, which came to the attention of the police through a traffic stop in Oregon.  Basically, Williams was the passenger in a car which was stopped for speeding in Oregon (this was sometime after the murder).  The driver didn't have a license, so the police asked Williams for his ID so they could decide whether to let Williams drive or tow the car.  Williams gave a fake name, but didn't match the physical description associated with the name he gave (oops).  When confronted with this, he gave a second fake name.  While giving his second fake name, he claimed to have forgotten his middle name.

   The Oregon officer, apparently deciding that enough is enough, arrested Williams.  That led to the discovery of Williams' real identity, and then a Denver officer learned the identity of the driver of the car from the Oregon officer's report, and the driver of the car (who apparently also had knowledge of the murder) later testified against Williams.  In appealing his conviction, Williams argued that he was illegally detained by the Oregon officer, who did not have reasonable suspicion when he asked for Williams' ID, and that this illegal detention was the only reason that the Denver police learned the driver's identity, and so the driver's later testimony about the murder should be suppressed as fruit of the poisonous tree.  Pretty convoluted, right?  Anyway, the Court of Appeals observed that officers do not need reasonable suspicion just to ask someone for their ID, but that when it becomes obvious that someone is giving a fake name (like when they forget their middle name, or don't match the physical description), then that creates probable cause to arrest.  This means that the Oregon officer did not illegally detain Williams, and so the fruit of the poisonous tree doctrine doesn't apply.

   Now on to the agg robbery issue... robbery involves taking something from the presence of another by force or intimidation.  The courts have held that "presence" for robbery purposes isn't a question of line of sight, but one of the victim's control over the property taken.  This means that the victim has to have some authority over the property in question, and that the victim's present influence over the property must be sufficient that they would have been able to keep it if it weren't for the suspect's threats or intimidation.  In this case, the court held that the drug dealer and his wife both had authority to control the money in his pockets, and were both exercising some control over it.  On the other hand, the third person in the shop had no authority over money in the drug dealer's pockets, so she wasn't actually a victim of aggravated robbery (there are other crimes that could have been charged instead, but not agg robbery).  So one of Williams' three robbery convictions was reversed, everything else was affirmed.

Colorado Court of Appeals People v. Poe 10CA2541

Decision here.

   Poe's parole officer searched his apartment while he away.  The PO found meth, weed, and some paraphernalia.  Poe returned during the search, and was arrested.  He was eventually convicted of possession of a controlled substance.  He appealed his conviction, arguing that the evidence was insufficient to support his conviction.

   At the trial, Poe had argued that the drugs belonged to a friend who had brought them over without his knowledge.  He even had a letter that his mysterious friend wrote to the court, claiming ownership of the drugs.  In order to support a conviction for possession, the prosecution has to show that the defendant knew he was in possession of the controlled substance and intended to possess it.  These things can be proven by circumstantial evidence (such as the defendant's dominion and control of the premises), but there has to be more than just the simple presence of the contraband.

   In this case, the meth was found in a laptop in the bedroom, the weed was found under the mattress, and there was a scale hanging on the wall and a pipe sitting on top of the toilet tank.  There was no evidence of a houseguest (particularly no evidence of a female houseguest, and Poe's mysterious friend was a woman).  The location of the items in Poe's one bedroom apartment, the fact that some of the items were in plain sight, and the lack of evidence of a female houseguest were held by the court to be sufficient to establish that Poe knowingly possessed them.  His conviction was affirmed.

Colorado Court of Appeals People v. Sampson 10CA2544

Decision here.

   Sampson conspired with his roommates (who were cashiers at a grocery store) to steal groceries by going through their checkout aisle without paying.  He took about $2000 worth of groceries this way, and was eventually convicted of theft and conspiracy to commit theft.  He appealed his conviction, arguing that since the agreement with his roommates didn't specifically address the value of the items, the elements of conspiracy to commit theft ($1000-$20000) hadn't been met.

   This, of course, is ridiculous.  One doesn't have to be conscious of the actual value of an item in order to commit the crime of theft, so one doesn't have to agree on the value of the item to commit the crime of conspiracy to commit theft.  Conviction affirmed.

Saturday, October 6, 2012

Tenth Circuit Storey v. Taylor 11-2180

Decision here.

   This is a long one, but it touches on a lot of important issues.  I'd suggest reading the actual decision.

   Taylor was a cop in Los Lunas, NM who responded to a call of a domestic at Storey's house.  The call was from an anonymous neighbor (which should set off big red flags.  We all know that anonymous complaints are next to worthless), and alleged only a loud argument (red flag #2: that's not necessarily a crime and doesn't support much of a safety argument).  The cops showed up, and didn't hear any disturbance (#3).

   Taylor knocked on the door, and Storey answered.  After being ordered to talk (sigh...), Storey admitted to being in an argument with his wife, who he said was no longer present (and she wasn't.  She returned while the officers were speaking to Taylor.  They would have seen her drive into an attached garage, and there was nothing about her appearance which suggested she was endangered.  The police didn't talk to her until after the call went wrong, though).  At some point, Taylor ordered Storey to step out of the house, and Storey refused.  Storey asserted that he had a right to stay in his house, Taylor ordered him to step outside or be arrested, and after they went back and forth a bit Storey found himself in the front yard in handcuffs.  He was charged with resisting.

   Anybody here think this sounds good?  Give yourself ten demerits. 

   Storey sued Taylor, who tried to invoke qualified immunity.  Storey's argument is that his arrest out of his home violated the Fourth Amendment because it was not justified by exigent circumstances or a warrant.  Taylor argues that the arrest was justified either by exigent circumstances or by the community caretaker exception   The case made its way to the Tenth, and here we are.  The Court recognized some crucial points from previous case law:

   In order to justify a warrantless entry into a home, the police need one of two things: either consent (clearly lacking in this case), or exigent circumstances.  In order to make entry into a home to either detain or arrest someone, the police need exigent circumstances and probable cause (not reasonable suspicion, probable cause.  The home is a big deal to the Fourth Amendment).  Probable cause exists where "a substantial probability existed that the suspect committed the crime, requiring something more than a bare suspicion."  In order to establish exigent circumstances (particularly as they relate to a danger of injury), the police need to show that they have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and that the manner and scope of their search is reasonable.  

   That leaves community caretaking... the courts have recognized that police actions don't always fall under the normal umbrella of criminal investigation.  Sometimes they are justified by functions wholly separate and apart from detecting, investigating, or acquiring evidence of a crime.  That can include giving people rides, towing abandoned cars, and restraining drunks.  In order to detain someone based on the community caretaking exception, the police have to show that their actions are based on specific, articulable facts which justify the intrusion into someone's liberty, that the governmental interest at issue outweighs the person's interest in liberty from arbitrary government action, and that the detention is no longer than necessary and specifically tailored to the facts which justified it.

   The court also sees fit to mention that ordering someone to step out of their house does, in fact, count as a Fourth Amendment seizure.  Has to be said.  

   Now, applying all that to the facts of this case: we have an anonymous complaint that wouldn't have justified entry into the house even if it were more credible.  The police find nothing suspicious, and during their investigation they don't learn anything aggravating about the circumstances.  There's no evidence of a crime.  There are no facts which suggest that anyone was endangered, or that the police had any pressing need to do anything at all.  Nothing in this case justified police intrusion into the house (either physically or by giving orders to come outside).  Furthermore, all of the legal contours of this decision were already clearly established.  Taylor's request for qualified immunity was denied.

Colorado Supreme Court People v. Guthrie 12SA80

Decision here.

   Guthrie was charged with DUI, and pled guilty as part of a plea agreement.  While she was getting set up at the probation office, the PO noticed that she was drunk.  She was escorted into the courtroom where she was held in contempt of court.  Apparently, there was some violation in the way the contempt charge was handled by the judge.  That become important later.

   A deputy took Guthrie into custody, and during the booking process her property was inventoried.  She was found to be in possession of Oxycodone for which she lacked a prescription, and she was charged with possession of a controlled substance.  The trial court for that charge recognized that the deputy didn't do anything wrong, but suppressed the drugs found during the inventory because it didn't agree with the contempt of court charge.  The people filed an interlocutory appeal.

   The Colorado Supreme Court didn't address the question of whether or not it was proper to hold Guthrie in contempt of court.  The fact is that she WAS held in contempt, and the deputy was acting properly when he arrested her.  The court observed that inventory searches at the jail don't really involve the warrant requirement or probable cause, they are valid because the government interests in conducting the inventory (including  protecting an arrestee's property while it remains in police custody, preventing claims of lost or stolen property against the police, and protecting the arrestee and others from the risk that a dangerous instrumentality or substance might be concealed in an innocent looking article) outweigh the prisoner's expectation of privacy while confined at a jail.  The court also noted that the exclusionary rule is not a Constitutional right; it's a procedure the courts follow when using it would deter unlawful searches by the police.  Since the police did nothing wrong here, and since the search was justified as a routine administrative property inventory, the suppression of the drugs was reversed and the case was sent back to the district court for further proceedings.