Wednesday, November 21, 2012

Colorado Court of Appeals People v. Van De Weghe

Decision here.

   Van De Weghe retired from the Denver police department in 1989, but still habitually carried a badge in his wallet.  Decades later, he was pulled over in Arapahoe county for failure to signal for a turn and not wearing his seatbelt.  Van De Weghe flashed his badge and told the deputy he was currently employed as a police officer.  The deputy asked a couple of follow up questions, and when Van De Weghe was unable to produce a commission card or give the name of his supervisor, he admitted to not actually being currently employed as a police officer.  The deputy would later testify that he thought Van De Weghe was trying to get professional courtesy (I think he'd have been able to pull that off with most cops if he hadn't lied).

   Van De Weghe was charged with Criminal Impersonation and Attempt to Influence a Public Servant.  This deputy is apparently not someone to be trifled with!

   After being convicted on both counts, Van De Weghe appealed.  His argument was that Attempt to Influence a Public Servant proscribed essentially the same conduct as Criminal Impersonation.  But in Colorado, the same behavior can violate multiple laws and you can be convicted of violations of all of them (unless one is a lesser included offense of the other, or unless one of the laws limits prosecution of the offense in some other way).  In this case, the Court of Appeals held that the crimes have different elements, and that the general assembly didn't intend to limit one statute by enacting the other.  Van De Weghe also tried to argue that only one of the statutes could be applied because Attempt to Influence is part of a comprehensive regulatory scheme, but that only tells us that Van De Weghe (or his lawyer) doesn't know what a comprehensive regulatory scheme is. The court didn't fall for it.

   Both convictions stand.  When I retire, I'm mounting my badge in a shadow box. 

Thursday, November 15, 2012

Tenth Circuit US v. Conner 12-1063

Decision here.

   A reporting party called the police at 11 PM, and did not give his name but did give his phone number and address.  The RP said that he had just seen a light-skinned black male wearing a fuzzy hunter hat get out of a black SUV and hide a pistol in his waistband after someone yelled "No, no!"  Officers would later testify that the area where this occurred is one of the worst neighborhoods in Denver.

   I am inclined to agree.  Any place where people where fuzzy hunter hats is no place that I want to be.

   Police officers responded to the call and found a light skinned black male (Conner) wearing a fuzzy hunter hat and walking away from a black SUV which was parked exactly where the caller had said it would be.  They detained Conner at gunpoint, searched him, and found that he was in fact concealing a pistol in his pants.  Conner was charged with being a felon in possession of a firearm.

   Conner moved to suppress the gun as the fruit of an illegal stop.  His argument was that the initial report was an anonymous tip, and therefore unreliable, and also that even if the tip were reliable it didn't establish reasonable suspicion.  Amusingly, Conner acknowledged that the police had enough information to necessitate an investigation.  He just thinks they should have tried a consensual contact instead of gunpointing him.  What bizarre logic.... Anyway, the trial court was having none of it, so Conner appealed to the Tenth Circuit.

   Conner's argument against the reliability of the tip leans heavily on Florida v. J.L. (the Supreme Court decision about the anonymous tip that someone at a bus stop had a gun.  I've been meaning to add that case to this site for a while now).  The problem with his argument is that the two cases don't have much in common with each other.  In J.L, the police had no information about the anonymous caller at all.  In this case, the police didn't know the caller's name but they did have enough information to go contact him if they needed to.  In J.L, the caller didn't say how he knew that someone had a gun, and there was no other information to corroborate the tip.  In this case, the caller claimed to have just witnessed the events he was calling in, and he provided a detailed description of the suspect and the circumstances, all of which were verified when the police found a suspect matching the description in the immediate area of the black SUV which was parked exactly where the caller said it would be.  The Court held that the tip was plenty reliable for the police to act on it.

   Regarding reasonable suspicion, the court again held that RS just requires a minimal level of objective justification.  Conner hiding the gun in his waistband right after someone yelled "No, no!" gave the police reason to suspect that Conner was involved in some sort of armed confrontation.  That was reason enough to justify the stop.

   I really loved the last paragraph of the court's decision, so I'm just going to paste it here (minus some internal quotation marks):

Therefore, we conclude that this is clearly not a case of police officers
arbitrarily stopping an individual walking down the sidewalk during the middle of
the afternoon.  Nor is this a case of police officers arbitrarily stopping an individual walking
down an alley late at night in a high-crime area.  Here, the officers had a
sufficiently reliable tip and a reasonable suspicion of criminal activity—they
believed Mr. Conner might have been involved in an armed confrontation.
Reasonable suspicion requires a dose of reasonableness and simply does not
require an officer to rule out every possible lawful explanation for suspicious
circumstances before effecting a brief stop to investigate further.

   Conner's conviction was affirmed.  

Tenth Circuit US v. Guardado 11-4169

Decision here.

   Guardado was walking around a high crime area at 1:00 AM with several other people.  They were dressed mostly in brown and one of them had a backpack.  Meanwhile, the police were targeting that area because of an ongoing tagging feud between two gangs (and also because it was a high-crime area, as evidenced by recent agg assaults and such). A couple of officers saw Guardado and his compatriots, and decided to stop them.  They based their decision on the criminal activity in the area, the fact that Guardado & Co. were walking in an area where there wasn't much other pedestrian traffic, the time of night, the fact that brown was the color of one of the gangs in the area, and the fact that taggers usually carry their equipment in backpacks.

   One of the officers illuminated the suspects with a spotlight and got out of the car.  Someone yelled "cops!" and Guardado took off running.  The officers chased after him while ordering him to stop, but Guardado kept running (while running he kept one of his hands in front of his body, near his waistband).  The cops tackled Guardado struggled with him briefly, handcuffed him, and found a gun concealed in the front of his pants.  He was charged with being a felon in possession of a firearm.

   In court, Guardado moved to suppress the gun.  When his motion was denied, he entered a conditional guilty plea and appealed the denial of his motion.  His argument was that there was no reasonable suspicion to justify the stop, so the gun was the fruit of an illegal seizure.

   The Tenth Circuit held that Guardado was not seized until he was tackled (because a person is seized only when an officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.  While he was running, his freedom of movement had not yet been restrained).  Accordingly, the court did not consider whether or not there was reasonable suspicion when the officer got out of his car to contact Guardado.  The court only considered whether or not there was reasonable suspicion at the time that the stop was effected.

   Factors contributing to reasonable suspicion in this case included the high crime area, the time of night, Guardado et al's clothing and backpack, and Guardado's headlong flight from law enforcement ("the consummate act of evasion").  The court was careful to point out that there's a significant difference between simply walking away (which doesn't really create RS) and suddenly running away (which is highly suspicious).  The court also explained that reasonable suspicion requires only a minimal level of objective justification that criminal activity is afoot.  Furthermore, reasonable suspicion doesn't require that the police be able to identify a specific, particular crime; if the facts support a suspicion of criminal activity in general, that's enough.  And suspicion is a pretty low threshold, which can even be met where an innocent explanation is more likely than a suspicious one.

   So the court is willing to give us a lot of leeway on the issue of RS (although there have been plenty of other cases which show that the court's patience is not inexhaustible).  The stop of Guardado was justified at the moment it occurred, whether or not it was justified at the moment that the police decided to stop him (the court doesn't say what it thinks about that, and reminds us that the officers' subjective intent to stop Guardado is irrelevant).  Guardado's conviction was upheld.