Friday, December 28, 2012

Colorado Supreme Court Tate v. People 11SC382

Decision here.

   This case spells out a lot of really interesting search and seizure stuff, and it's a short decision.  I'd recommend reading the original.

   Tate was passed out in a parked car with the engine running.  An officer found him, and parked the patrol car behind Tate's car.  Since there were other cars parked in front of and to the sides of Tate's car, he was effectively boxed in an unable to leave.  Also, he couldn't leave because he was unconscious.

   The officer found that Tate smelled strongly of alcohol, had urine stained pants, and had quite the collection of empty beer cans in the passenger seat.  He woke Tate up, and eventually arrested him for DUI.  The trial court suppressed all the evidence in this case, because it held that Tate was seized from the moment that the officer parked behind him, and that at that point there was no reasonable suspicion.  The people filed an interlocutory appeal (which they won), Tate appealed the people's appeal, and now the Supreme Court has spoken.

   The Court relied heavily on the US Supreme Court's case Brendlin v. California.  The Court explained that a person is seized when an officer, by means of physical force or show of authority, intentionally terminates or restrains his freedom of movement.  And where an officer makes a seizure by show of authority, the person is only seized if they submit to the seizure (so if you try to pull someone over and they just keep going, they haven't been seized as far as the Fourth Amendment is concerned).  In cases where an officers actions don't make his intent to seize someone obvious, or where a person's submission to authority takes the form of "passive acquiescence" the legal test is whether a reasonable person would have felt free to leave, or (if they wouldn't want to leave for reasons that had nothing to do with the police) whether a reasonable person would have felt free to disregard the officer's request or otherwise terminate the encounter.

   Going back to the Brendlin case, the US Supreme Court ruled that where a car has been stopped, it's not just the driver who has been seized.  The passengers have been seized because they would reasonably perceive the officer's show of authority as being partially directed at them.  This next part is really important.  The court noted that when a cop makes a traffic stop, sometimes other drivers will be delayed because the road is being blocked by the traffic stop.  Those people have not been seized even though their freedom of movement has been restrained because they would not perceive the officer's show of authority as being directed at them.

   So in order for a person to be seized, they would have to be aware that their freedom is being restrained.  Even if an officer does limit someone's freedom of movement, if the person is somehow not aware that the officer is restraining them then they have not been seized.  And that's exactly what happened in this case.

   The Colorado Supreme Court held that because Tate was passed out and blissfully unaware that the cop had prevented him from leaving, he was not seized.  By the time he was awake (and therefore aware of his new limitations and therefore seized), the cop had already developed reasonable suspicion (perhaps even probable cause) by way of noticing the beer cans, the smell, and the wet spot on the front of Tate's pants.  The suppression of the evidence was reveresed, and the case was sent back to the lower court for further proceedings.

Wednesday, December 26, 2012

Tenth Circuit Schwartz v. Booker 11-1583

Decision here.

   I remember reading the criminal appeal from this case, but it didn't make the blog because it did affect police actions in the field (it was one of those decisions more important to prosecutors than to cops, if I recall correctly).  Anyway, it was a pretty gruesome read.

   The case centers around a child (Chandler) who was in foster care, and who was the subject of child abuse complaints whilst in foster care.  Suspicious bruises, long absences from school with cryptic explanations, and some really bizarre and heavy-handed discipline.  In the end, Chandler died of starvation after being confined to a closet as a punishment for something trivial.  Heads rolled.

   In this case, the child's biological parents filed a §1983 suit against a pair of social workers who didn't investigate one of the latest complaints of abuse.  Specifically, they alleged a due process violation. Usually, due process only protects people from actions taken by the government and not from actions by third parties (such as the murder of a child by a private individual). There are two exceptions: 1- Where the the state has assumed a special relationship with and control over an individual. 2- Where state officials created the very danger that caused the harm, they may be liable for the actions of third parties. 

   In order to meet the special relationship exception, the facts have to show some sort of involuntary custodial relationship between the state and the person whose rights are being violated (such as being under arrest, being involuntarily committed, or being a child in foster care).  Then the facts also have to show that the official knew of the danger or failed to exercise professional judgment, and that this behavior was conscious shocking.  As applied to this case, the social workers were held to have abandoned their professional judgment when they inexplicably closed the case in violation of agency guidelines and in light of all the previous information this was held to be conscious shocking.

   The social workers argued that since they weren't the ones who actually placed Chandler in the foster home where he died, they didn't have a special relationship with Chandler for the purposes of this exception.  The court didn't buy it; the special relationship isn't limited to the official who initially creates it by putting the victim in state custody.  The special relationship attaches to the state, not to the individual official.  The individual official becomes liable when in the context of a special relationship they abandon their professional judgment in some conscious shocking way.

   This is another one where the instant case doesn't involve police action, but the applications to law enforcement should be obvious.

Tenth Circuit BIC v. Gillen 11-3219

Decision here.

   The facts of this case don't involve much police action, but it's getting summarized here anyway.

   Gillen was a social worker who received numerous reports from BIC's grandparents, from a doctor, and from law enforcement that alleged child abuse against BIC and her sister.  She didn't do anything about these reports, to the point of refusing to accept photographs of injuries, claiming to have done follow up investigation which may or may not have actually been done, and failing to investigate the reports she received either from law enforcement or civilian witnesses.  There are allegations that this is because she had a grudge against this specific family (and those allegations were apparently borne out by statements from law enforcement and from an internal investigation by Gillen's supervisor).

   Eventually, one of the kids died.  Her stepfather's girlfriend (I think I got that right, it gets kinda tangled) was convicted of the murder.  BIC's grandparents filed a §1983 claim, alleging a due process violation. Usually, due process only protects people from actions taken by the government and not from actions by third parties (such as the murder of a child by a private individual). There are two exceptions: 1- Where the the state has assumed a special relationship with and control over an individual. 2- Where state officials created the very danger that caused the harm, they may be liable for the actions of third parties.

   In this case, the allegation is that Gillen created the danger by her refusal to act. The district court had given Gillen qualified immunity on this, but the plaintiffs appealed that. The Tenth held that this wasn't so much a failure to act as a conscience-shocking refusal to act, and that Gillen is not entitled to qualified immunity. The case was sent back to the lower court to see if the plaintiffs can prove the other elements of the danger-creation exception.

   I'm throwing this one on the blog because it shows that there are some circumstances (however rare) where just failing to to our job actually becomes a Constitutional violation. Hopefully, the police would know better than to engage in the sort of wanton and egregious intentional neglect that Gillen is accused of. Then again, hopefully social workers would also know better.

Tuesday, December 25, 2012

Tenth Circuit US v. Jones 11-3104

Decision here.

   Officers of the Missouri Highway Patrol were conducting a marijuana investigation.  Essentially, the plan was that they would engage in surveillance of hydroponics stores, follow suspicious customers home (as long as those customers lived in Missouri.  This operation was being conducted in Kansas City, Missouri), and then do a knock and talk.  According to the sergeant who was running the show, this sort of operation had led to about 100 knock and talks, and the vast majority of those had led to the discovery of marijuana grows.

   Anyway, the officers followed Jones to his house after watching him make a purchase at a hydroponics store.  None of them noticed when the crossed the border into Kansas City, Kansas.  Oops.

   They met with Jones in the alley behind his house, and told him that they were there for his marijuana plants.  Jones responded "Oh, shit," and then asked how they knew he had marijuana plants.  They told him "Because you just said 'oh, shit.'"  Then they asked for his license, checked for warrants, and started angling for consent to search his house.  Jones didn't actually tell them that they could search his house, but he also didn't tell them they couldn't as they followed him up to his door and inside.  He also didn't tell them that they had to leave once they were inside, he just showed them one room and then shrugged (the court record says "raised his hands with his palms up as if to signal that there was nothing for the officers to see," but I think that sounds like a shrug).

   Then Jones went into another room where he grabbed a long gun and pointed it at the officers.  The officers opened fire, wounding Jones, and then retreated from the house.  When they called for backup, they learned they were outside of their jurisdiction.  The real cops showed up to take over the investigation, and got a warrant for Jones' house.  Jones was indicted for manufacturing a controlled substance and brandishing a firearm during a drug offense.  He conditionally pled guilty after the district court refused to suppress the evidence, and then appealed the suppression ruling.

   Jones' arguments were as follows: 1- The officers violated the Fourth Amendment by detaining him outside of their jurisdiction.  2- The officers' accusatory tone ("We're here for your marijuana plants") meant that their initial contact with him was a seizure, and they did not have reasonable suspicion.  3- He did not consent to the entry into his home.  And 4- because it was obtained using information that should have been suppressed, the Kansas officers' search warrant was invalid.

   The Court ruled that the officers didn't violate the Fourth amendment by operating outside of their jurisdiction.  This is sort of a tricky point... the officers were definitely violating state law (Kansas state law, in this case), and that's not good, but violations of state law aren't a Fourth Amendment issue (unless, of course, state law is violated in a way that also violates the Fourth Amendment directly).  Therefore, state law violations don't create suppression issues.

   As far as the initial contact being a seizure, the question is whether or not under the totality of the circumstances a reasonable person would have felt free to terminate the encounter.  The officers' accusatory tone during the initial confrontation ("We're here for your pot plants") didn't rise to that level, so Jones was not seized at that point.  He was seized when the officers took his driver's license, but by then they had reasonable suspicion which justified the seizure for Fourth Amendment purposes (even if not for state law purposes...).

   Although Jones did not directly tell the officers that he consented to their entry into his house, consent can be implied by one's actions (it doesn't have to be explicity stated).  In this case, the Court held that allowing the officers to walk up to the door, unlocking it without being told to, and leading the officers into the house communicated Jones' consent.  Jones argued that the consent was involuntary for the same reasons that he argued he was unreasonably seized (the accusatory tone), and the court rejected this argument for the same reason: a single accusation doesn't rise to a level of coercion that would make consent involuntary.

   Finally, since the court didn't agree with any of Jones' arguments about the allegedly improper conduct of the Missouri cops, none of the information was tainted.  The Kansas cops were entitled to to rely on it in their warrant application.  The denial of Jones' motion to suppress was affirmed.

Monday, December 17, 2012

Tenth Circuit US v. Santistevan 11-1534

Decision here.

   Santistevan was being investigated for a series of robberies, and was arrested after turning himself in on an unrelated warrant.  An FBI agent met with Santistevan after he was arrested to try to obtain a statement, but Santistevan refused.  

   A few days later, the agent got a call from Santistevan's girlfriend who said that Santistevan now wished to talk.  While the agent was on his way to the jail, a lawyer called him and told him that she represented Santistevan and that Santistevan did not wish to speak to him without counsel.  She also said that she had given Santistevan a letter to give to the FBI agent if he did go to the jail (is anyone else sick of this?).

   The agent went to the jail anyway, and asked Santistevan about the letter.  Santistevan handed him a letter from the attorney which said about what you'd expect.  The agent explained to Santistevan that he had been told by an attorney not to talk, but that it was all up to him, and asked him if he wanted to talk.  Santistevan said that he did want to talk, and then waived Miranda, and then made some incriminating statements.

   Santistevan's statements were suppressed, and the prosecution appealed.  The Tenth Circuit ruled that Santistevan's lawyer was not able to invoke Miranda on his behalf, the invocation of his rights had to come from him (so the agent was good to go with the interview after the phone call).  That said, by handing the letter to the agent, Santistevan was invoking his rights even though he didn't say anything at all.  And this invocation was in no way ambiguous, so the agent should not have asked questions to clarify Santistevan's intent and also should not have conducted the interrogation.  The suppression order was affirmed.

   The prosecution also argued that Santistevan wasn't in custody at the time, but the Court disagreed and held that he was in custody and subjected to custodial interrogation  (I think the prosection might have been trying to treat this like Howes v Fields, but being in jail for a few days isn't the same thing as being in the middle of a prison sentence).  The Court recognized that someone who has invoked their rights may later change their mind and waive them, but that they have to reapproach the police with this new waiver (the police can't be the ones to reinitiate interrogation).  But that fact isn't relevant to the court's analysis here, since whether Santistevan initiated contact with the police (through his girlfriend) or not, he reinvoked his rights once the agent showed up to actually interrogate him.

Friday, December 7, 2012

Colorado Court of Appeals People v. Allman 09CA1347

Decision here.

   Allman was a registered sex offender who lived in Colorado Springs, but found a job in Garfield County.  He would drive to Garfield County, spend the week sleeping in his car (in different locations every night), and then drive back to the Springs on the weekend.  This went on for a couple of months, when deputies were dispatched to a suspicious vehicle in a rec center parking lot.

   Deputies found the car, and found Allman sleeping in it.  During questioning, he admitted that he was staying in his car, and he was arrested for failing to register.  He was later convicted, and appealed.  He argued that because his car wasn't a permanent place with a fixed address, it wasn't a residence for the purposes of registration, and that his statements to the deputies should have been suppressed as a violation of Miranda.

   The Court of Appeals held that Allman's car was, in fact, a residence.  The statutory definition of "residence" includes any place if used, intended to be used, or usually used for habituation.  Given that Allman was sleeping in his car five or six nights per week, the car qualified as an additional residence which means he should have registered with Garfield County within five days.

   As far as Miranda goes, deputies asked Allman to get out of his car and give them his ID, and questioned him for about seven minutes (but it may have been as long as 20, depending on whose testimony you believe).  They used normal conversational tones, didn't point guns at him, etc, etc... you know the list.  Even though Allman apparently got pretty upset during the questioning, he was not in custody for Miranda purposes.  His conviction was upheld.

Colorado Court of Appeals People v. Novitskiy 10CA2023

Decision here.

   Novitskiy paid for some gas and a lotto ticket with a counterfeit $20 bill, and the manager immediately called the police.  Novitskiy was still there when the police showed up, and the manager told them "That guy gave me a fake 20."  An officer ordered Novitskiy to produce any money on his person, and found more fake money.  Novitskiy was arrested, and eventually convicted of forgery.  Novitskiy appealed his conviction, arguing that the scope of the search exceeded what was permissible during an investigative detention, and arguing that the police lacked probable cause to arrest.

   The Court of Appeals noted that where the identity of an informant is known, they may generally be presumed credible.  In cases where the informant provides information that relies on special expertise (such as identifying fake money), that expertise can sometimes be inferred from the circumstances (such as where the informant works with cash for a living, and probably knows how to spot a fake bill).  Therefore, even though all the police had was a cashier pointing out the defendant and saying "That guy gave me a fake 20," that information was enough to establish probable cause to arrest.  The officer's demand that Novitskiy produce all his money was justified as a search incident to arrest.

   The decision also explains that probable cause is not based on mathematical probability, but just on common sense and reasonable grounds.  Novitskiy's conviction was affirmed.

Monday, December 3, 2012

Colorado Supreme Court US v. Marshall 12SA215

Decision here.

   Two Colorado Springs officers went to Marshall's house to serve him a summons for indecent exposure (the decision goes on to explain that "serving a summons" meant transporting him to the station to be fingerprinted and processed).  Marshall wasn't there, so they waited outside for him.  Half an hour later, he arrived and the officers met with him in the parking lot.  He had a backpack, which he was instructed to put down.  After he put the backpack down, he was arrested.  During a search incident to arrest, officers found some weed in his pocket.  He was put in the patrol car, and his backpack was searched (incident to arrest).  It had more weed, a scale, and some prescription pills in it.  Marshall was charged with possession with intent to manufacture or distribute.

   The trial court ruled that since Marshall was secured in a patrol car at the time that the backpack was searched, the backpack could not be searched incident to arrest under Arizona v. Gant.  The evidence in the backpack was suppressed, and the people appealed the suppression order.

   The Colorado Supreme Court observed that there is a factual difference between searching a person and searching a vehicle.  The former involves greater risk to the officer, since a person retains some ability to access weapons or evidence on his person even after he has been restrained.  Of greater relevance here, the Gant decision related specifically to searches of a vehicle's passenger compartment incident to arrest, and in no way affected searches of persons or of containers in their possession.  The trial court erred in expanding Gant beyond its own scope.

   Since Gant doesn't apply to these circumstances, the Court turns our attention to a 1988 case (People v. Boff) that does.  In that case, Boff was arrested, and when he got to the station his backpack was searched revealing marijuana.  Boff had argued that the search was not incident to arrest because the backpack had been out of his control for some time when the police had finally gotten around to searching it.  The Colorado Supreme Court had ruled that the search was justified (whether or not there was exigency based on evidence preservation or officer safety) because when a person is validly arrested he loses his expectation of privacy in the items on his person at the time of his arrest.

   So the Court applied the same reasoning here, holding that a person's expectation of privacy in items on or near their person goes away when they are validly arrested.  Marshall's suppression order was reversed, and the case was sent back to the trial court for further proceedings.