Monday, December 23, 2013

Tenth Circuit Panagoulakos v. Yazzie 13-2003

Decision here.

   Panagoulakos was pulled over for having a temp tag that was too faded to read.  He admitted to the cop (lieutenant, actually.  This will explain some delegation that comes a little later) who pulled him over that there was a gun in the car.  In checking NCIC, the lieutenant found a hit for a protection order.  According to the hit, Panagoulakos was prohibited from possessing a firearm.

   Panagoulakos admitted to knowing about the protection order, but said that the judge had given him permission to carry a firearm and that this was noted in the order.  The lieutenant called a sergeant to make the decision on whether or not to arrest, and was told that an arrest was appropriate.  Given the facts known at the time, I would agree with that.  After all, who believes what suspects say about their own protection orders?  The lieutenant then called for an officer (Yazzie) to actually make the arrest that he had already called someone else to make the decision on.  Yazzie was also directed to check the order to see if it contained the exception that Panagoulakos thought it did.

   Yazzie (who incorrectly believed that all protection orders prohibited the carrying of firearms) took Panagoulakos to the station and reviewed the order.  Federal law prohibits the restrained party of a protection order from carrying a firearm if the order involves intimate partners.  In this case, the order did not have the "intimate partner" box checked, although there was some language on the order which said If you're a spouse or former spouse, cohabitate or cohabitated, or if you have a child together, then you can't have a gun.  Panagoulakos' relationship with the protected party was listed as "ex-boyfriend."

   Yazzie went ahead and filed the charges.  Panagoulakos sued everybody who was involved in this case for wrongful arrest, illegal seizure of his property, violation of due process, and negligent hiring/training/retention.  The district court held that Yazzie was entitled to qualified immunity as it related to the initial arrest, because the initial arrest was supported by probable cause.  The district court also held that once Yazzie had reviewed the protection order she no longer had probable cause, and therefore was not entitled to qualified immunity.  Yazzie appealed.

   The Tenth circuit made a point of saying that it didn't necessarily agree that probable cause had dissipated, but that it was willing to humor that for the sake of argument.  Even so, the Tenth Circuit has never imposed a duty to release a lawfully arrested prisoner when new evidence comes to light.  That's not to say that it should never be done, but only that there's no case law which clearly establishes an obligation to do so (the decision doesn't mention this, but Colorado even has a statute which expressly authorizes the police to un-arrest someone when there are no grounds to charge them with a crime.  As I recall, the procedure in NM was a bit more complicated).

   The district court's decision was reversed, Yazzie was granted qualified immunity.

Tuesday, December 17, 2013

Colorado Supreme Court People v. Roggow 11SC597

Decision here.

   Roggow was a landlord who was on friendly terms with his tenants.  They lived a few blocks away, frequently socialized, and sometimes he would pay the tenants kids to do yardwork.  The friendly relationship soured quickly when he hit on his tenants' eight-year old daughter and felt her up a couple times while they were at the hardware store buying shower parts for the rental house.

   Roggow was arrested, and eventually convicted of sexual assault on a minor by a person in a position of trust.  The relevant statute defines a person in a position of trust as follows:

One in a "position of trust" includes, but is not limited to, [1] any person
who is a parent or acting in the place of a parent and charged with any of
a parent's rights, duties, or responsibilities concerning a child, including a
guardian or someone otherwise responsible for the general supervision of
a child's welfare, or [2] a person who is charged with any duty or
responsibility for the health, education, welfare, or supervision of a child,
including foster care, child care, family care, or institutional care, either
independently or through another, no matter how brief, at the time of the
unlawful act.

   Pay special attention to "includes, but is not limited to."

   Roggow appealed, arguing that he wasn't in a position of trust because he wasn't specifically charged with any supervisory responsibility by his victims' parents.  The court of appeals agreed, and reversed his conviction.  The people appealed.

   The Colorado Supreme Court held that the above definition of a person in a position of trust is meant to be illustrative, not exclusive.  The court further held that being in a position of trust isn't so much a matter of being charged with authority over the child, but rather of being given special access to the child because of a relationship.  In this case, Roggow was a family friend who took the kids on a shopping trip without the parent's foreknowledge, and the parents weren't alarmed when they found out about it (at least not until they found out about that one little detail...).  The court held that this was enough evidence of a position of trust to support a conviction.

   Roggow's conviction was reinstated.  Creep.

Colorado Supreme Court People v. Zadran 13SA194

Decision here.

   Zadran was arrested after being investigated for selling drugs.  At the jail, he was interviewed by a narc after waiving Miranda.  Before and during the interview, the narc kept it friendly and said a lot of things like "I'm just telling you what I'm going to talk to you about. I think it would be in your best interest to talk to me. I think you are going to be interested in some of the things that I already know. You don't have to talk to me.  I'm going to advise you of your rights. I'm going to let you read this form, sign it, and you can talk to me. You don't have to."

   Zadran made some inculpatory statements.  The trial court ruled that the interview had been coerced, and suppressed all of it.  Yes, you read that last sentence correctly.  No, I don't get it either.  The court seemed to think that saying "I think it would be in your best interest" was an implied promise of leniency.

   Anyway, the people filed an interlocutory appeal.  In order for statements to be suppressed as involuntary, they have to be made at least partially as the result of coercive police conduct.  Seeing as how there was nothing in this case which bore so much as a distant familial resemblance to coercive police conduct, the Supreme Court overruled the suppression of Zadran's statements, and remanded the case back to the trial court for further proceedings.

Monday, December 16, 2013

Colorado Supreme Court People v. Ramadon 13SA22

Decision here.

   Colorado Springs PD was investigating a sex assualt, and Ramadan was one of the suspects.  Ramadan was born in Iraq, but after his family was killed (and after he acted as an interpreter and informant for the US military), he was brought to the US for his own safety.  That was years ago, now we fast forward to 2012.

   Ramadan is arrested on a warrant (related to this case), and brought to the station for a custodial interview.  He waived Miranda, and denied involvement in the assault.  His claim was that he found the victim outside and took her home, but at some point in the interrogation he admitted to being present in the apartment while his friends had sex with her after drugging her drink at a party.  He denied having any direct involvement in the rape, but eventually admitted that he took her home because his friends told him to since they would be recognized but he wouldn't.

   The detective's demeanor apparently changed as the interview went on, too.  Early on, he established rapport with Ramadan, but as the interrogation went on he became more and more accusatory.  Towards the end, he was suggesting that Ramadan would be deported to Iraq (where he would undoubtedly be killed) if he did not cooperate.

   The trial court suppressed the statements made after minute 42 of the taped interview.  The issue wasn't a Miranda violation, but rather that the statements from that point on were held to have been made involuntarily.  The question of voluntariness is whether or not coercive conduct on the part of the police played a significant role in inducing the statements.  "Coercive" meaning conduct that overbears the defendant's will.  The line falls well short of actual torture, and can include intimidation or other psychological manipulation.  Once the court has determined that some statements were coerced, they won't go to a whole lot of trouble to figure out which statements that followed were or were not the result of coercion.  Instead, they'll just suppress everything that followed the coercive conduct on the part of the police.  So don't be coercive.

   Some of the factors the courts can use to determine whether or not police conduct is coercive are the following:
(1) whether the defendant was in custody;
(2) whether the defendant was free to leave;
(3) whether the defendant was aware of the situation;
(4) whether the police read Miranda rights to the defendant;
(5) whether the defendant understood and waived Miranda rights;
(6) whether the defendant had an opportunity to confer with counsel or
anyone else prior to or during the interrogation;
(7) whether the statement was made during the interrogation or
volunteered later;
(8) whether the police threatened [the] defendant or promised anything
directly or impliedly;
(9) the method or style of the interrogation;
(10) the defendant's mental and physical condition just prior to the
(11) the length of the interrogation;
(12) the location of the interrogation; and
(13) the physical conditions of the location where the interrogation

   Oddly, the statement by the detective that the trial court took issue with was "I'm not here to try and get you in trouble."  The trial court held that this implied a false promise of leniency...?  I dunno.  Fortunately, we don't really need to know what the trial court was thinking, because the Supreme Court has decided that they were wrong.

   On the other hand, the Supreme Court did take issue with some of the interrogation.  Given Ramadon's uniquely terrifying prospects when it came to deportation, the court ruled that threatening him with that was enough to overbear his will- especially after reminding him of everything that would go along with a trip home.  So even though the trial court set the bar for coercion too low, the Supreme Court still ruled that the statements made after minute 54 of the interview needed to be suppressed.

   This case was an interlocutory appeal, and was sent back to the trial court for further proceedings.

Thursday, December 12, 2013

Colorado Court of Appeals People v. Clemens 11CA1460

Decision here.

   Police responded to a call of a fight.  They found a female and three male bystanders in the street.  Their investigation revealed that Clemens (who was no longer present) had been attacking the female with a golf club when one of the males tried to intervene.  Clemens also attacked that male, but then a second bystander kicked Clemens in the head.  Clemens ran away, and the third bystander called the police.

   The bystanders gave conflicting information about which house Clemens ran into, but the female said that she lived with Clemens at a house on the same block, and gave the police permission to enter the residence forcibly if need be.  Police made entry, and arrested Clemens.  He was charged with (and convicted of) second degree assault for attacking the female and third degree assault for attacking the first guy who came to her rescue.

   Clemens appealed his conviction on multiple grounds, but the one that matters for this blog is that he claimed that police lacked authority to enter his house without a warrant.  He claimed that the police should have made further inquiries into whether or not the female victim actually had standing in his house (apparently she didn't, although the court doesn't come right out and say that).

   The court held that the circumstances gave the officers an objectively reasonable basis for believing that the female had standing in Clemens' house.  They relied on factors like her claim that she lived there, the fact that she was found unclothed in the street near the house, that she claimed she had keys to the house (but that they were inside),and the fact that she gave permission to enter forcibly (which someone without standing would not feel entitled to do).  Clemens argues that all of this is at best ambiguous, since some of the bystanders thought he went into a different house.  

   Fortunately, the trial court and the Court of Appeals both recognized how stupid Clemens' argument is.  Especially considering that the police were dealing with an active crime scene involving assaults against multiple victims, this one inconsistency doesn't create the kind of ambiguity that Clemens imagines.  The police had every reason to believe that the female lived where she said she did, and therefore had standing to give consent for entry.  Since the court found that consent justified the entry, it didn't address whether or not exigent circumstances also justified the entry.

   Unfortunately, this case was reversed and sent back to the district court for a new trial.  The reversal of the lower court's decision had to do with a questionable jury selection, nothing that the police need to worry about.

Colorado Court of Appeals People v. Tunis 09CA0593

Decision here.

   The Colorado Court of Appeals has recognized the admissibility of Y-strand DNA (DNA which is passed down from father to son relatively unchanged, and so is less unique than DNA that both parents contribute to).  You can relax now, I know the suspense was killing you.

Sunday, November 24, 2013

Colorado Court of Appeals People v. Smoots 11CA2381

Decision here.

   This is one of those cases where the appellate court sets aside its own previous reasoning.  As far as I know, that doesn't actually count as overturning the previous decision... but it does create the sort of conflict that might inspire the Supreme Court to step in at some point.  Until then... judges disagree.  

   So.  Smoots was driving drunk, swerved into oncoming traffic, and caused a crash.  The driver of the other car was seriously injured, and Smoot was eventually convicted of DUI, DUI per se (his BAC was .346), and vehicular assault.  He appealed his conviction.

   His argument about the vehicular assault charge was the sort of thing that'll make your brain hurt.  He argued that his drunk driving wasn't the proximate cause of the accident because there could have been an intervening cause if the victim driver had been the one to swerve into his lane, and that the jury instructions presented a burden of proof that was too low.  The short version of the appellate court's response is that fault isn't relevant for purposes of vehicular assault, the question is whether the defendant was driving drunk and this resulted in a crash.  If the other driver were somehow grossly negligent, then that might be an affirmative defense (gross negligence is defined as abnormal human behavior that constitutes an extreme departure from the ordinary standard of care... meaning a lot worse than just drifting out of your lane).  But even if the other driver is at fault (or could be at fault), the drunk driver can still be said to have caused the accident for purposes of this statute.  And the jury instructions may not have been the best, but they were ok.  So the vehicular assault condition stands.

   The DUI per se conviction also stands, but the DUI conviction... acknowledging that another division of the court had recently held that DUI is not a lesser included offense of vehicular assault, this division now held that it is.  In Medrano-Bustamante, the court had held that because each statute relies on slightly different definitions of motor vehicle, the elements are distinct and so are the offenses.  In Smoots, the court now has held that this would be an issue if we were talking about behavior that potentially met one definition but not the other (like driving a boat whilst drunk and hurting someone, which would meet the vehicle definition for vehicular assault but not the one for DUI), but since the behavior in this case meets the definition of motor vehicle use by each statute, the elements are now identical and therefore DUI is a lesser included offense of vehicular assault.

   I guess it doesn't really matter much for our purposes, since we can still charge both offenses.  One of them would have to be dropped before conviction in order to comply with this decision, but that's something for prosecutors to worry about.  

The Colorado Court of Appeals

   Here's how the Colorado Court of Appeals works: it's divided into different divisions, but the divisions aren't assigned to particular regions of the state or particular lower courts or anything.  The judge in charge just assigns cases to whichever division he wants to.  The precedent set by divisions of the court of appeals is not binding on other divisions of the court of appeals, so if the same issue is before two of them in different cases (or if the same issue comes up again after one division has decided it), then whichever appellate judge is deciding the case at hand may choose to disregard any other appellate court decisions.

   Now, since the divisions aren't assigned to a particular region of the state, this severely limits the importance of Colorado appellate court decisions.  If a trial judge were to make a ruling which was in conflict with the "precedent" established by the appellate court, and someone were to appeal said ruling, then the case could end up in the division that originally set the precedent, or it could end up in a division that disagrees with the precedent and completely disregards it.  So even if appellate court decisions are ideally supposed to be binding, for practical purposes nothing is really set in the Colorado state courts until it makes it up to the supreme court.  If the state ever starts assigning appllate cases to divisions that are based on geographic region (or some other consistent scheme), then appellate decisions will suddenly become much more meaningful.  In the meantime... they're good to know.  Sometimes.  

   For this reason, I have almost stopped bothering with Colorado Court of Appeals decisions several times.  I still keep summarizing them here because they are often informative.  They can give the police insight into the kind of reasoning that courts use to analyze cases, they might refer to more important cases, and they can indicate judicial trends.  

   The information in this post is partly taken from the Court of Appeals' website, partly taken from any of the slew of appellate decisions which contain a phrase similar to "we are not bound by the decisions of other divisions of this court," and partly from my own analysis of the result.  The reason I'm bothering you with this information will become apparent in the next post.

Friday, November 15, 2013

Tenth Circuit US v. Harris 12-5174

Decision here.

   Police were investigating the contract killing of a businessman, and one of their suspects was a guy named Johnson.  They had evidence associating Johnson to a stolen van which had been used in the murder, but they were still looking for the van's keys, the murder weapon, paperwork related to the killing, and cell phones.  Eighteen months after the killing, they were following Johnson in his car while he was driving erratically in an apparent attempt to lose them.  Eventually, they followed him to Harris' auto shop.  Johnson parked his car, unlocked the shop, went inside, and left a short time later on a motorcycle.

   Officers applied for a warrant to search Harris' shop for evidence related to the murder.  Aside from the above information, they explained in the affidavit that Harris shop had been used as a front for illegal activity before, and that individuals connected to a violent conspiracy are known to sometimes hide evidence at a friend's house or at a common "clubhouse" (such as the auto shop) rather than keep it in their own homes.  

   The warrant was granted, and a search of Harris' shop led to the discovery of an illegal gun and drugs totally unrelated to the murder.  Harris was charged and convicted.

   Harris appealed his conviction, arguing that the evidence should have been inadmissible because the warrant was not based on probable cause.  He argued that there was no indication in the affidavit that evidence related to the crime would be found at the shop, that the information in the affidavit was stale because the murder had been a year and a half earlier, and that the warrant was invalid because the affidavit referred to statements made by a CI without containing information about the CI's reliability.

   The Tenth held that the affidavit did establish probable cause (which is just a fair probability that evidence will be found, and doesn't even half to be more likely than not).  There may not have been probable cause to search every place that Johnson had a key to or had access to, but the combined facts of this case were enough to establish a fair probability.  As for the staleness of information, the question isn't how long ago a crime had occurred (which would be ridiculous), but whether or not the information suggests that evidence is currently in the place to be searched.  In this case, the police had followed Johnson to Harris shop on the same day as they applied for the warrant, so the information was not stale.  And the affidavit had enough to establish PC without the informant's statements (the CI just said that Johnson was paid for his involvement in the murder, and implicated someone else).

   Even if the affidavit didn't establish probable cause, it wasn't "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," so the evidence would still have been admissible under the good faith exception.

   Finally, Harris argued that PC for the search was nullified by statements made by another member of the conspiracy saying that the gun had been disposed of somewhere else.  The court held that there was still PC because the police were searching for more than just the gun, and also because the police weren't under any obligation to credit the statements of another suspect.

   Harris' conviction was affirmed.  

Wednesday, November 13, 2013

Colorado Supreme Court People v. Crum 13SA114

Decision here.

   Finally, an interesting decision!  And I apologize for those last two... apparently, when the courts focus on things other than law enforcement for a while my standards for what is and is not going to be included in this blog start to slip.  And we end up with boring posts about due process in jails and power of attorney law.  Ugh.

   But this one is about search incident to arrest, and Gant.

   So Grand Junction police were looking for some guy who had a warrant, when they instead found Crum acting suspicious.  He was standing around in an area known for drug activity, just outside of an open passenger door to a car that they knew he frequently used, manipulating something inside the car.  They stopped to talk to him, and he withdrew a hamburger wrapper from the car and then walked away from it to talk to them.  After talking for five minutes, they cleared him and found that he had a warrant for possession of Oxycontin.

   While they were arresting Crum for his warrant, he dropped the wrapper and tried to grind it up under his foot.  Dumbass.  One of the officers retrieved the now-suspicious wrapper, and found that it contained a baggy with two Oxycontin pills.  Since Crum had retrieved this contraband from the car, and since it was packaged in a manner which suggested that Crum was selling it, the cops suspected the vehicle would contain more drugs.  They searched the passenger compartment incident to arrest, and found meth, little baggies of weed, a scale, and more empty baggies.

   Crum moved to suppress the evidence, and the trial court ruled that although he had retreived contraband from the car it was entirely possible that this was the only contraband that he had, and therefore the search was invalid and the evidence suppressed.  The people filed an interlocutory appeal.

   The Colorado Supreme Court observed that under Gant, police may search the passenger compartment of a car incident to arrest if one of two conditions apply: 1- the arrestee is unrestrained and within reach of the car and might have access to a weapon; or 2- the is reason to believe that evidence of the crime for which the suspect is being arrested will be found in the car.  The court clarified that "reason to believe" means reasonable suspicion, not necessarily probable cause.

   Applying that to this case, it's true that it was entirely possible that Crum didn't have any more drugs.  But there was plenty of reason to suspect that there was more contraband to be found.  That brought this particular search under one of the Gant exceptions, and the order suppressing the evidence was reversed.

Monday, November 11, 2013

Colorado Court of Appeals People v. Stell 13CA0492

Decision here.

   Stell's father executed a power of attorney which gave Stell broad authority to act on his behalf in dealing with his finances and property.  Stell used this authority to rip his father off to the tune of half a million.  He was subsequently indicted for multiple counts of theft, which the district court dismissed.  The reasoning was that the people would be unable to meet the "without authorization" element of theft.  The prosecution appealed.

   The Court of Appeals held that even though the POA granted Stell broad authority, the law which governs such things (UPAA) imposed a duty on Stell to act in his father's interests rather than to liquidate his holdings and keep the profits.  Therefore, there was evidence to support that he acted without authorization.  The dismissal of the indictment was reversed, and the case may proceed to trial.

Tenth Circuit Blackmon v. Sutton 12-3199

Decision here.

   In 1997, Blackmon (who was 11) at the time was being detained in a juvenile facility pending a trial on rape charges (which were eventually thrown out).  Sutton was the director of that facility.  During his stay, Blackmon was suicidal and was frequently confined to a restraint chair either to prevent him from harming himself or to punish him for disobedience.  There were a variety of other punishments used against him during his stay at the facility as well.

   Now an adult with mental health problems, Blackmon is suing the facility and various members of the staff for violating his rights by way of the punishments he endured, by denying him access to mental health care, and refusing to transfer him to an unlocked facility of his choice.  The trial court denied qualified immunity, and the defendants appealed.

   The Tenth Circuit denied qualified immunity on most of those points.  They did rule that Sutton was entitle to qualified immunity regarding her refusal to transfer him to another facility.  People being detained don't have a right to choose their place of detention.  As far as the other points go... the government can use force to prevent people in its custody from hurting themselves, or to maintain order within the facility.  But absent a conviction, the government can't use force to punish someone.  Nor can they use force for no reason.  Since the allegation is that the restraint chair was used to punish Blackmon, qualified immunity was denied.

   The case has more relevance to jailers than to cops, but it's here because cops sometimes have to deal with presentence confinement issues.

Monday, November 4, 2013

Tenth Circuit US v. Cash 12-7072

Decision here.

   There's some pretty interesting discussion in this case, I suggest reading the decision itself rather than just my summary.  But for those of you who lack either the time or the inclination...

   Ofc. McEachern conducted a wall stop of Cash's car.  He had been informed by narcotics officers that Cash's car had been seen at a drug house and directed to stop it, but the actual justification for the stop was that Cash ran a stop sign.  During the stop, Cash said that he was on his way to take a drug test for Ofc. Brittingham, who was a federal probation officer.  McEachern saw a device in the front seat which was made from a bladder, a tube, and a clamp on the end of the tube.  He recognized it as a device used for defeating urinalysis.  McEachern called for Brittingham to come out to the traffic stop.  He got there about 20 minutes after the initial stop.

   While he was standing outside of the car, Brittingham noticed a gun in Cash's back seat.  One thing led to another, and Cash got his ass kicked while resisting arrest, but nobody was seriously hurt.  The officers inventoried Cash's car (while Cash was in the back seat of one of theirs), and found a bunch of meth and needles and whatnot.  As they were doing their search, Cash asked to speak with Brittingham.  Brittingham asked him "What's up?" and Cash responded with "You've got to help me, they're going to kill me."  Brittingham asked "What's the deal?" and Cash explained that he had been dealing drugs, and messing with some really bad people, and that they were going to kill him.  Cash was not advised of his Miranda rights at any point during all of this.

   In court, Cash moved to suppress the physical evidence as the fruit of an illegal detention, and moved to suppress his statements as being taken in violation of Miranda and as being involuntary.  Motion denied, and he was convicted after a jury trial.  He appealed, arguing that the lower court erred in denying his motion to suppress.

   The Tenth affirmed.  This decision touches on three important issues: the reasonableness of the detention, Miranda, and the voluntariness of Cash's statements.

   First, the detention: Obviously, since Cash ran a stop sign the initial stop was justified.  But every stop needs to be limited in scope and duration to the circumstances which justify it, unless one of two things occurs: 1- additional facts justify extending the stop, or 2- the stop becomes a consensual encounter.  In this case, the presence of a device for defeating drug tests along with Cash's statement that he was on his way to take a drug test for a federal probation officer combined to establish reasonable suspicion.  Why he left something like that in plain view on the passenger seat, I can not say.  Most likely because he is stupid.

   Second, Miranda.  As we all (should) know, the need for Miranda warnings is triggered by custodial interrogation.  I've gone on rants about people needing to understand that "custody" prong of custodial interrogation, but there are just as many of us who have trouble understanding what is and is not "interrogation."

   Interrogation (for Miranda purposes) is"words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect."  So booking questions are not interrogation, but neither are neutral responses to a suspect's questions.  In this case, saying "What's up?" was a lot like asking "What did you want to talk to me about?" (which, as the court puts it, is a pretty far cry from "where were you on the night of the murder?").  It's a question, but there was no reason for Brittingham to believe that it would elicit incriminating information.  The same goes for (under these circumstances) asking him "What's the deal?" was just a response to Cash's statement.  It wasn't the sort of thing that was likely to elicit an incriminating response... even though that's exactly what it did.

   It's worth noting that custodial interrogation is an objective test.  That means that it doesn't matter whether the police intended for their questions to elicit an incriminating response.  What matters is only whether they knew or should have known that their questions or actions were likely to elicit an incriminating response.

   And that leaves voluntariness.  Statements and confessions which are involuntarily given can't be used in court.  It doesn't matter whether Miranda was read or not, it doesn't even matter whether a suspect was under arrest or not.  Any statement involuntarily made can't be used against someone in court.  To clarify, "involuntary" means that the statement is the result of undue police coercion.  That can take the form of false offers of leniency, excessively lengthy detentions, or beating a confession out of someone.  That last option is what Cash tried to suggest happened here.

   But the courts recognize that there's a difference between beating a confession out of somebody and injuring them while they are resisting arrest.  Since the subsequent discussion between Cash and Brittingham didn't involve any additional violence, and since the violence was never directed towards making Cash talk (but rather towards lawfully taking him into custody), it did not render his statements involuntary.

   The judgment of the lower court was affirmed, and Cash's conviction stands.

US Supreme Court Stanton v. Sims 12-1217

Decision here.

   Stanton was a cop in California who was responding to a call of a disturbance involving a baseball bat.  While we was arriving, he saw a few people leaving the area.  Finding one of them (who was hurrying towards a nearby house) suspicious, he ordered that person to stop.  That person looked at him, but ignored his order and ran through a gate into a yard with a taller-than-six-foot privacy fence.

   Stanton kicked the gate open.  Unfortunately, Sims (who was the owner of the property behind the fence, but who was not the person Stanton was chasing) was standing just on the other side of the fence.  He was injured, and he sued Stanton.

   The district court granted Stanton qualified immunity.  The Ninth Circuit reversed, holding that Stanton had violated Sims' clearly-established constitutional right by pursuing a misdemeanor suspect into his yard without first obtaining a warrant.  I'm not even kidding, that was their decision.

   Stanton appealed to the Supreme Court, where the Ninth Circuit was reversed again.  The court chose not to decide whether or not it was constitutional for Stanton to enter Sims' yard without a warrant, but simply pointed out that the question was far from being beyond debate.  Hot pursuit of fleeing felons is recognized as a reason to chase someone into their (or a) house, but different jurisdictions have different opinions about whether the same can be said of misdemeanors.  Some of those decisions turned on circumstances other than just the seriousness of the offense.  The decisions which the Ninth relied on in finding that the law was clearly established weren't all that on point, and the Supreme Court even dug up some California cases which suggested that it isn't really significant to hot pursuit whether the underlying offense is a misdemeanor or felony.

   So although this is one of those sometimes aggravating deciding-not-to-decide cases, the court did say that the issue of misdemeanor hot pursuits is still up for grabs, and therefore Stanton was entitled to qualified immunity after all.

Thursday, October 31, 2013

Tenth Circuit US v. Ponce 12-5032

Decision here.

   Ofc. Mackenzie was conducting a drug investigation in 2011 (before Jardines was decided).  He received information from a confidential informant that Ponce was selling meth from his residence.  The CI also provided other information about other dealers which Mackenzie knew to be true.  Mackenzie verified the information from the CI by conducting his own surveillance (during which he didn't actually see drugs, but he saw activity which he knew through training to be consistent with drug trafficking), and by comparing it to information received from another informant.  Then he ran a drug dog on the exterior of Ponce's garage, and the dog alerted.  He ran the same dog on 30 other houses in the neighborhood, and the dog did not alert.

   Pretty thorough investigation (especially compared to the embarrassingly half-assed crap the cops in Jardines did).  After all that, he applied for a search warrant.  A subsequent search of Ponce's residence revealed exactly what he thought it would (meth and guns).  Ponce moved to suppress the evidence, arguing that the information in the affidavit didn't amount to probable cause.  His motion to suppress was denied, so he pled guilty and appealed.

   Now that the supreme court has ruled that we can't run dogs on the outside of people's houses without a warrant, Ponce's appeal looks like it has a little bit more of a chance.  And the prosecution (for some reason) conceded that without the dog sniff, the affidavit didn't establish PC.  The Tenth Circuit decided not to decide whether or not the affidavit established PC, and instead turned to the good faith exception.

   As has been discussed in other decisions, the good faith exception to the exclusionary rule means that even if a warrant turns out to have been issued without probable cause, the evidence is still admissible unless one of the following applies: 1- when the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth; 2- when the issuing magistrate wholly abandons her judicial role; 3- when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; 4- when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid; and 5-when the warrant's flaw results from recurring or systemic police negligence.  If none of those exist, then the evidence won't be suppressed even if a warrant later turns out to be defective.

   In this case, the Tenth didn't decide whether or not the warrant was defective.  They just decided that even if the warrant was defective (which is to say, even if the dog sniff was necessary to establish PC), the police weren't in a position where they should have known that.  The good faith exception applies, the evidence is admissible, and Ponce's conviction stands.

Sunday, October 27, 2013

Colorado Court of Appeals People v. Zadra 10CA1207

Decision here.

   Zadra was a jail captain at a sheriff's office who listened in on telephone conversations between a prisoner and his attorney, then lied about it in court.  She eventually admitted that during a CBI investigation, and was convicted of official misconduct and perjury.

   On appeal, there was some argument as to how many counts of each offense she could have been convicted of, and whether the evidence was sufficient for a conviction (I don't see why that one was filed, the evidence was obviously sufficient), and some Miranda issues.

   She had been interrogated twice after becoming a suspect, but she only challenged the second interrogation.  She came to the police station unescorted, knowing that she was going to take a polygraph, did so, and then was interrogated by a CBI agent who spoke to her in "fatherly" tones and told her it was important to tell the truth.  No threats were used, no voices raised, the interrogation was mostly one on one and the door was open for most of it.  She cried a lot, asked if she was in trouble, and made some incriminating statements.  At one point near the end of the interrogation, the agent said that he knew she wanted to leave and he'd let her go in a little bit.  She left shortly afterwards, and was arrested seven months later.

   None of that rose to the level of interference associated with formal arrest, even though the interrogation took place in a police station.  And even though the defendant was emotional during the interview and was apparently suffering from some other physical maladies, none of that indicated that her will was overborne by the agent, so her statements were voluntary.  No Miranda violation.

Colorado Court of Appeals People v. Medrano-Bustamante 10CA0791

Decision here.

   Medrano-Bustamante was driving drunk with two passengers, when he was involved in a single-vehicle accident.  One of his passengers (the adult, who was also drunk) suffered a broken femur.  The other passenger (a juvie) died several hours after the accident.  Being a real stand-up guy, Medrano-Bustamante claimed that the dead juvie had been driving.  DNA evidence and the pattern of everybody's injuries said otherwise, though, and Medrano-Bustamante was eventually convicted of DUI, vehicular assault, vehicular homicide, and two counts of hit and run (one for leaving the scene of an accident involving death, the other for leaving the scene of an accident involving serious bodily injury).

   On appeal, Medrano-Bustamante argued that DUI was a lesser included offense of vehicular assault and vehicular homicide.  Another division of the court of appeals had agreed with him in a previous case, but different divisions of the court of appeals aren't bound by each others' decisions.

   This time, the court held that DUI is not a lesser included version of vehicular assault or vehicular homicide, because of an extremely subtle difference in the elements.  On first glance, vehicular assault and vehicular homicide both contain all of the elements of DUI, but in order to be guilty of vehicular assault or homicide a defendant must drive a motor vehicle as that term is defined in the criminal code.  In order to be convicted of DUI, a person must drive a motor vehicle as that term is define in by the Uniform Motor Vehicle Law.  The criminal code definition basically describes anything designed to move someone by land, water, or air (unless supported by tracks or cables), and the traffic code version says any vehicle designed for use on highways.

   Long story short: the difference is minor, but enough that the elements of the offenses aren't actually the same.  So the DUI conviction stands as a separate offense from the vehicular assault and vehicular homicide convictions.  The hit and run convictions, on the other hand, had to be merged.  Hit and run crimes are charged per accident, not per victim.  So instead of charging our hero with one count of leaving the scene of an accident involving death and one of leaving the scene of an accident involving SBI, the prosecution should have charged him with just one count of leaving the scene of an accident involving death.

   Other than the two merged convictions, the trial court's decision stands.

Monday, September 16, 2013

Tenth Circuit US v. Mabry 12-3036

Decision here.

   Mabry was on parole in Kansas, and subject to standard parole conditions.  These included a provision that he was required to seek permission to leave the state, and another that he (and his residence) were subject to search by a parole officer or designated law enforcement officer.  Whilst so restricted, Mabry was contacted in Utah by a highway patrol officer.  He was the passenger in a car which was transporting a lot of marijuana, and although the driver was arrested, Mabry was not.

   When Mabry's PO learned about this, he issued an order for Mabry's arrest.  A parole officer and a couple of cops went to the last address that Mabry had listed as his residence (which was his girlfriend's house).  She answered the door and told them that Mabry was in the shower, but then they saw him walk into the room behind her.  They made entry, arrested Mabry, and then searched the house.  During the search, they found a gun in the basement.  

   Mabry was charged with possessing said gun, and moved to suppress it as the fruit of an illegal search.  The district court denied his motion, so he pled guilty and then appealed.

   The Tenth Circuit held that because parolees have a diminished (or even absent) expectation of privacy, and because the government has an overwhelming need to supervised parolees to prevent them from committing more crimes, the search was valid under the totality of the circumstances.  And although a search of a parolee's home must be reasonable in order to comply with the Fourth Amendment, that kind of search does not have to be based on probable cause (or even reasonable suspicion) if it is specifically authorized by state law.  In Kansas' case, the law requires reasonable suspicion of a parole violation in order to justify this kind of search.  The fact that Mabry was contacted out of state without his permission (and in a vehicle involved in drug trafficking) established reasonable suspicion.

   The denial of the motion to suppress was affirmed, and Mabry's conviction stands.

Monday, September 9, 2013

Colorado Court of Appeals People v. Jauch 10CA0588

Decision here.

   Someone's backpack was stolen, along with a computer and a credit card which were in it.  Later, Jauch used the credit card at a gas station and a restaurant.  The police identified her by talking to witnesses who either knew her or described her clothing and vehicle, and by watching surveillance.

   The police obtained a search warrant for Jauch's house.  The warrant identified several items to be seized, including two wallets, a credit card, checks, a rag, receipts, and a turquoise v-neck shirt with ruffles.  The investigator who wrote the affidavit for a search warrant forgot to mention the reason why he wanted to seize the shirt (it was the description given by the witnesses of the suspect's shirt), but the probable cause to search for everything else was clearly stated.

   The police executed their search, and one of the officers assisting with the search found the shirt.  After the investigator affirmed that this was the search he was looking for, the officer seized it.

   Jauch was eventually convicted of theft and identity theft, and appealed her conviction.  She argued that the shirt should have been suppressed since it was not mentioned in the warrant affidavit.  The people argued that the shirt was admissible under the plain view doctrine.

   The court held that although the people didn't establish exactly where in the house the shirt was found (just that it was in the center of one of the rooms), any place that the shirt might have been would also be capable of hiding a wallet or credit card.  The shirt itself was also capable of hiding one of the items mentioned in the warrant affidavit.  So the police had lawful right of access to the shirt during their search.  And the shirt wasn't actually seized when the officer simply lifted it up to show the investigator, it was only seized when Jauch's possessory interest in the shirt was interfered with (which is to say, when the police took it with them when they left).  And since the investigator had probable cause (based on witness statements) to seize the shirt, and since the investigator told the officer to seize the shirt, the seizure of the shirt was lawful under a combination of the plain view doctrine and the collective knowledge doctrine.

   The admission of the evidence and Jauch's conviction were upheld.

Tenth Circuit US v. Brooks 11-3317

Decision here.

   As two tellers were opening the Security Bank of Kansas City, the bank was robbed at gunpoint.  The suspect was wearing a mask, and he bound the tellers hand and foot with plastic ties, and got away with more than $200,000.

   One of the tellers got divorced a year later.  After the divorce, her ex-husband told the police that he thought the bank robber was Brooks, the guy his ex-wife had been sleeping with at the time.  Police obtained a DNA profile for Brooks, which turned out to match the suspect DNA which had been recovered from one of the plastic ties (the defense would try unsuccessfully to convince the jury that this was because Brooks and the teller had had sex the night before).  Other evidence also suggested Brooks' guilt: he was flat broke before the robbery, but was seen in possession of large sums of cash in the months following the robbery.  He matched the physical description of the suspect.  And he was in constant phone contact with his lover in the weeks leading up to the robbery (right up to the moment of the robbery), then stopped for three months, and then resumed constant phone contact.

   Brooks was convicted of the robbery.  He appealed his conviction.  The arguments relevant to this blog are: 1- the chain of evidence for the plastic ties was broken, and therefore the DNA should have been suppressed; 2- the testimony of the government's DNA expert should have been suppressed; 3- evidence that he possessed large amounts of cash should have been suppressed because it was irrelevant; and 4- the evidence was insufficient for a reasonable jury to convict him.

   As far as the chain of custody goes, the first responding officer cut the zip ties off of the tellers, and let the ties fall to the ground.  He didn't guard them afterwards, and didn't know who eventually collected them.  The officers who did collect them also testified at the trial, though.  Brooks' argument was that the zip ties could have been unintentionally tampered with during the time between cutting them off of the tellers and collecting them.  The court noted that the chain of custody need not be perfect for evidence to be admissible.  Where the chain of custody has deficiencies, those speak to the weight of the evidence rather than its admissibility.  So the zip ties were admissible.

   Regarding the government's DNA expert (the one who testified that it was extremely unlikely that the DNA on the zip ties was there because of the teller's sexual contact with Brooks), Brooks argued that her testimony should be supressed because she said that she did a "general swab" of the zip ties in her report but testified that she only swabbed the tips of the zip ties because she wanted to obtain suspect DNA rather than victim DNA.  She acknowledged in court that the phrase she used to describe the test might cause a different technician to misunderstand what test she had performed.  The court held that this minor semantic difference didn't merit suppression.

   And the large amounts of cash... Brooks' argument was that his possession of lots of cash months after the robbery was irrelevant because he could have got the money from somewhere else.  Not that there was any evidence presented that he got the money from somewhere else, but he could have.  The court noted that since the robber got away with a pretty substantial amount, it was likely that he would still have a lot of money a few months later.  This evidence was also admitted.

   And although Brooks argued that the evidence against him was insufficient for a conviction, the court described the evidence as "pretty compelling."  His conviction was upheld.

Saturday, August 17, 2013

Colorado Court of Appeals People v. Johnson 11CA2366

Decision here.

   Charles Ray Johnson escaped from prison in 1975, after being convicted of second degree murder.  He was apparently arrested in 1990 in California for public intoxication, but that went nowhere.  Other than that, he evaded capture until 2007.

   He was convicted of escape, and appealed his conviction.  He argued that the statute of limitations had expired (since his escape was completed over 30 years ago).  The Colorado Court of Appeals ruled that escape is a continuing offense, and that as long as an escaped prisoner has not yet been returned to custody in Colorado, he is still committing the crime of escape.  Accordingly, the statute of limitations didn't start until Johnson was caught in 2007, and his conviction stands.

Thursday, August 8, 2013

Tenth Circuit US v. Sanchez 12-2084

Decision here.

   I hate reading decisions based on federal drug investigations.  The facts are always so convoluted, and while some of what's being addressed is important to this blog, a lot of it really isn't.

   In this case, Sanchez was not the target of a DEA investigation.  His daughter was.  The DEA got a warrant for what they thought was his daughter's house (based on some faulty information that made it into the search warrant affidavit).  Turned out that it was Sanchez's house, and they found evidence tying him to the drug trafficking conspiracy.  Sanchez was convicted by a jury, we'll fast forward to the appeal.

   Sanchez argued that the evidence should have been suppressed because the warrant contained faulty information.  In order to get a search warrant tossed out for something like that, the defendant has to satisfy both parts of a two prong test: 1- he has to show that the affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth.  2- He has to show that absent the false information, the affidavit would not establish probable cause.  

   In this case, the false information in the warrant was apparently just some minor mistakes of fact as to the height of a fence, the number of security cameras on a residence, and exactly how much of the ongoing surveillance was directed at Sanchez's residence.  And the affidavit supported probable cause even without the mistaken info.  So the warrant was good (enough).

   The court also pointed out that there's no rule that says that properly seized evidence can only be used against someone who was the target of the investigation at the time the search was initiated.  And finally, the decision contains some information about when phone calls can be admitted as evidence, but it's pretty fact-specific and more important to prosecutors than it is to cops, so I'm leaving that alone.

   Sanchez's conviction was upheld.

Sunday, August 4, 2013

Tenth Circuit US v. Esquivel-Rios 12-3141

Decision here.

   A Kansas trooper saw Esquivel-Rios driving a van down the highway.  The van was displaying a Colorado temp tag, and the trooper called the tag into dispatch to have it checked against all the various databases that we use for that sort of thing.  The dispatcher informed the trooper that there was no record found for the tag, and that Colorado temp tags usually have no record.  Based solely on the information that there was no record found, the trooper stopped the van.  During the traffic stop, he received consent to search the van and found a hidden compartment with a lot of meth.

   Esquivel-Rios was subsequently convicted of federal drug charges.  At the trial (and in his appeal), he argued that the stop was unreasonable and everything found as a result of the stop should be suppressed.

   The trial court denied his motion to suppress, and the Tenth Circuit sort of decided not to decide.  The Tenth observed that they and other courts have upheld stops based on there being no record of a plate.  The idea behind that is that when a government database for license plates doesn't contain information about a particular license plate being used, it "raises a non-trivial possibility that the tag wasn't lawfully issued in the first place but falsified in some way."  So ordinarily a stop based solely on information from a database is good to go.  The problem is that in this case, the evidence suggests that the problem was likely to be with the database.

   When the dispatch said that records of Colorado temp tags usually don't come back, this suggests that there's some explanation other than wrongdoing on Esquivel-Rios' part.  Maybe Colorado doesn't put temp tags into a database (until recently, Colorado didn't).  Maybe there's some other bug between the Colorado database and the Kansas one.  Or maybe the tag is suspicious and there's just a lot of fake Colorado temp tags in Kansas.  The trial court didn't really look into it.

   The Tenth found that the "no record" issue could go either way.  It could still meet the standard or reasonable suspicion, or it could fall far short of it.  It all depends on facts which weren't explored by the trial court because the trial court just ignored Esquivel-Rios' challenges to the database's reliability.  So rather than decide this case, the Tenth sent it back to the trial court to more fully develop the record as to what the dispatcher meant by "usually," and as to what the trooper's previous experience with Colorado temporary tags has been.

   I bet the dispatcher wishes he could take that remark back now that it's getting picked apart in court.

Colorado Court of Appeals People v. Reed 08CA2700

   Reed was convicted of killing his girlfriend, stealing her car, and criminally possessing four or more financial transaction devices with two different victims (because when he was caught he had a bunch of her credit cards and also a gift car which belonged to someone else).  He appealed, arguing prosecutorial misconduct over witnesses alluding to his criminal history.  That argument didn't work out for him, but it isn't really within the scope of this blog.

   Reed also argued that because there were no funds available on the gift card, the evidence was not sufficient to support his criminal possession of a financial transaction device conviction.  The Colorado Court of Appeals agreed, because there was no evidence presented that the gift card was usable (and without that, it didn't meet the statutory definition of a financial transaction device).  The court ruled that the evidence did support a conviction on the lesser included charge of criminal possession of a financial transaction device (four or more devices, one victim).  The case was sent back to the lower court for resentencing on that one charge, everything else about his conviction stands.

Monday, July 22, 2013

Tenth Circuit Courtney v. Department of Public Safety 12-7028

Decision here.

   An Oklahoma trooper pulled Courtney over for driving 82 in a 75 and failing to dim his headlights.  Courtney apparently took his time about pulling over (later claiming he was driving to a well-lit gas station for his own safety).  The trooper instructed Courtney to get out of his car and sit down in the front seat of the trooper's car where he would be giving him a written warning for the traffic offenses.  A very highway patrol thing to do... maybe someday I'll find a trooper who can explain it to me.

   Anyway, while the trooper was completing a written warning, he asked Courtney about his travel plans.  Courtney said he was driving to Tennessee to Tulsa because his family lived in one place and his job was in the other, so he went back and forth a lot.  The trooper observed that Courtney seemed very nervous (the court decision mentions nervous laughter, yawning, shaky hands, a visibly pulsing carotid artery, and Courtney's heartbeat being visible through his shirt.  Can't say I've ever seen that last one...).

   After releasing Courtney on a warning, The trooper asked Courtney if he would mind answering a few more questions.  Courtney declined, but then the trooper ordered him to stop and to get back in the trooper's car.  The trooper told him he was being detained for suspicion of criminal activity, and asked him if there were any guns, drugs, or large amounts of cash in the car.  Courtney told him there was a gun in the trunk.

   The trooper called for a K9 (who did not alert on the car), and checked Courtney's criminal history.  The criminal history showed a juvenile adjudication of a felony offense 12 years ago.  Oklahoma law prohibits a person from possessing a firearm if they have an adult felony conviction, or if within the last ten years they have had a juvenile felony adjudication.  The trooper arrested Courtney for being a felon in possession of a handgun (even though he wasn't).  Courtney was released three days later, charges were never filed.  It took almost a full year for him to get his gun back.  He filed a 1983 suit against the trooper and the state, arguing that the traffic stop was unreasonably extended and that he was arrested without probable cause.  The district court granted summary judgment for the defendants based on qualified immunity, and Courtney appealed.

   Regarding the extension of the traffic stop, the trooper's position was that since there was PC to arrest for the traffic offenses, no further justification was required for extending the stop.  The Tenth Circuit disagreed.  The trooper cited cases which have shown the Fourth Amendment allows for custodial arrests even for minor traffic offenses, and that the Fourth Amendment allows for arrest even when state law says that a person should be released on a summons, and that the Fourth Amendment allows for arrests even when the officer thinks he is arresting someone for a crime other than the one he has probable cause for.  But none of these cases allow an officer to continue to detain someone for a traffic offense that he has already released someone on a warning for.  The Tenth Circuit didn't find that reasonable in this case, either.

   However, the Tenth was willing to humor the trooper's argument that the extension of the stop was justified by reasonable suspicion.  The district court had identified three factors establishing reasonable suspicion: Courtney's delay in pulling over, Courtney's extreme nervousness, and Courtney's travel plans.  Although the Tenth observed that Courtney's travel plans weren't suspicious at all, the other two factors were just barely enough to establish reasonable suspicion.  So the Tenth affirmed the lower court's grant of qualified immunity as it related to extending the stop.

   But the arrest is another matter.   The district court had reasoned that the trooper might have thought that the juvenile adjudication had been charged as an adult, but there was no basis for that (especially since the criminal history described it as a juvenile adjudication).  The district court had also held that the trooper had probable cause to arrest Courtney for obstruction, because Courtney claimed not to remember the juvenile adjudication.  The Tenth saw that for the nonsense it is.

   Since there was no probable cause to justify Courtney's arrest (or the year long retention of his gun), the Tenth reversed the granting of qualified immunity as it related to everything other than extending the stop.  The case was sent back to the district court for further proceedings.

Saturday, July 20, 2013

Tenth Circuit US v. Nicholson 11-2169

Decision here.

   Nicholson was driving in Roswell, NM.  Officer Baker was driving behind him, and saw Nicholson make what he thought was an improper turn (more on that in a minute).  Baker conducted a traffic stop.  During the stop, he smelled weed and saw a police scanner and some meth pipes.  Nicholson refused to consent to a search of the vehicle (and in NM, state courts have ruled that the Carroll doctrine doesn't apply because the NM constitution affords more protection against searches than the federal one).

   Baker released Nicholson with a ticket for the improper turn, but seized his car and sought a search warrant.  After receiving and executing the warrant, he found meth.  Baker was indicted, and moved to suppress everything as the fruit of an illegal stop.  The motion was denied, and he eventually pled guilty while reserving his right to appeal the motion to suppress.  He appealed, and the case made its way to the Tenth Circuit.

   So... about that improper turn... it wasn't.  Basically, he turned left into the right lane.  That's a violation in many states, but NM isn't one of them (the NM law regarding left turns has really wonky wording that essentially requires a turning vehicle to stay to the left in the middle of the intersection, but doesn't dictate what lane the turn should be completed in).  

   Now, the law does allow for reasonable suspicion to be based on a mistake of fact.  If an officer relies on facts that he reasonably believes to be true (but which turn out to be false) to justify a stop, the stop is still good.  But the law does not allow for reasonable suspicion to be based on a mistake of law.  If an officer thinks that something is illegal (even though it's actually not), and stops someone for doing it, then that stop is no good.

   A fine point here: an officer doesn't actually have to be correct about which law he is enforcing, so long as the facts known to him justify a stop for a violation of some law.  For example: let's say you see a guy walking his dog with a ten foot leash and you stop him for jaywalking.  Unbeknownst to you, there is a provision in the city code which says that pedestrians always have the right of way on that street (so even though he did what you thought he did, it wasn't illegal).  But there's also a law that you didn't even know about that says dog leashes can't be longer than five feet.  So, even though you thought (incorrectly) that you could stop him for jaywalking, the stop would still be good because the facts known to you justified stopping him for an illegal dog leash (even though you didn't know it was illegal).

   Hmm... that example was stupid.  Let me try to simplify: the courts take whatever facts you testify to, and they apply them to the law.  Not to what you may think the law says, but to what the law actually said.  As long as those facts justify stopping someone for violating any law, the stop is good (whether or not you were right about which law you could stop them for).  Unfortunately for Officer Baker, that isn't what happened here.  Baker stopped Nicholson for doing something that wasn't illegal, and he didn't have any other reason to stop him.  So the Tenth reveresed the denial of the motion to suppress the stop, and Nicholson's conviction was vacated.

Friday, July 19, 2013

Tenth Circuit Fancher v. Barrientos 12-2114

Decision here.

   I don't like this one at all.  Sometimes judges show that they have a surprisingly firm grasp on what we do, and sometimes they show that they have no clue what it's like on the street.  This decision falls into the latter category.

   Barrientos is a deputy sheriff in southern New Mexico.  One day, he was investigating a shoplift of two 20-packs of beer.  He had reviewed surveillance footage of the theft, and he was out looking for the suspects when he kept getting directed (either by dispatch or by other witnesses) to various places where the suspects might be.  He had two loaded rifles in the front seat of his car, only one of which was secured in a gun lock, and the windows were rolled down to facilitate his search.

   At some point during his search, he was out of his car after having made a traffic stop of a car which he thought was involved.  The driver didn't match the suspect description and he had already let him go, but he had left his car running and unsecured like he normally would do during a traffic stop.  While he was out of his car, someone started throwing beer bottles at him.

   He found three suspects (two of whom appeared to be the suspects in the theft, and one of whom was a relative of his.  This particular relative had gang associations and had apparently threatened to harm him in the past).  He detained the three suspects at gunpoint.

   Two of the suspects followed orders, either proning themselves out or kneeling down.  The third, Dominguez, kept walking closer and closer to Barrientos.  Finally, Dominguez lunged for Barrientos and tried to take away his gun.  The two men struggled over the gun for a while, and during the struggle the weapon discharged and then malfunctioned.  Barrientos tried to tase Dominguez, but the taser had no effect.  Dominguez ran towards Barrientos' patrol car (which was unlocked, running, and had an unsecured AR15 in the front seat).  Barrientos cleared his handgun's malfunction, chased Dominguez, and caught up to him as he was getting into the car, tried to take the keys out of the ignition (unsuccessfully), the engine was revving, and Dominguez shifted the car into reverse.  Barrientos shot Dominguez once in the chest, and Dominguez slumped over.

   Barrientos took a few steps back, so that he was no longer afraid that he was going to be run over by the car.  The car was now rolling back, with Dominguez slumped over in the driver's seat, and with an unsecured AR15 right next to him.  Barrientos shot Dominguez six more times.  The car came to a stop in a nearby field.  Dominguez died, and his family filed a 1983 suit against Barrientos, alleging that he violated Dominguez's Fourth Amendment rights by using unreasonable force.

   Barrientos moved to dismiss the suit, claiming qualified immunity.  The district court ruled that he was entitled to qualified immunity for the first time that he shot Dominguez, but not for the six additional shots.  The court's reasoning was that Barrientos had moved away from the car and was no longer in danger of being run over, and he did not have any indication that Dominguez was armed, and that it was debatable whether or not he had reason to believe that Dominguez still posed a threat.  So the court ruled that under these facts, a reasonable jury could find that Barrientos violated Dominguez's Fourth Amendment rights.

   That ruling seems all kinds of jacked up, I know.  Barrientos had just spent a minute and a half fighting for his life against a suspect who tried to disarm him, and we are all trained to recognize that someone trying to disarm us is trying to kill us.  That same suspect was now in a position where he had access to a weapon which was vastly superior to the one Barrientos was using... if Dominguez actually deployed the AR15, there pretty much isn't shit Barrientos could have done.  As far as I can see, the only intelligent thing for Barrientos to do was to keep shooting until he was good and goddamn sure that Dominguez was no threat at all.  But the court didn't see it that way.

   Barrientos appealed the court's decision.  His appeal included three arguments: first, he argued that the court erred in analyzing the last six gunshots separately from the first one (he didn't argue that subsequent shots can never be analyzed separately, only that this case didn't merit that sort of microscopic analysis).  Second, her argued that the district court did not sufficiently take into account the danger that Dominguez posed.  The Tenth Circuit ruled that both of those arguments were factual disputes rather than legal disputes.  For qualified immunity purposes, an appellate court generally has to defer to the factual findings of a lower court (as opposed to legal findings, which the appellate court can change as it sees fit).  So the Tenth Circuit held that it didn't have the authority to reverse the lower court's decision on those two arguments.

   Barrientos' third argument was that even if he had violated Dominguez's rights, whatever right he violated was not clearly established.  The Tenth ruled that according to the factual findings of the district court, a jury could find that Barrientos had shot Dominguez six times when he did not have any reason to believe that Dominguez posed a threat, which any reasonable officer would have known to be a violation of Dominguez's Fourth Amendment rights.

   The denial of qualified immunity was upheld.  This case could still go either way at trial, but it's not off to a great start.

Wednesday, July 10, 2013

Tenth Circuit US v. Mikolon 12-2139

Decision here.

   Mikolon was a felon who was wanted for failure to appear on a sex crime in West Virginia.  He was believed to be armed and dangerous.  The US Marshals tracked him down near Truth or Consequences, NM.  Having lived and worked there, I will say that he must have been desperate to got there.

   Anyway, they caught up with him in a camp ground.  When he was taken into custody, he was in possession of various firearms.  One of the officers asked him (without Mirandizing him) if he had other weapons, and he admitted to having more guns and told the officers where they were.

   Eventually, he was charged with being a felon in possession of a firearm.  He moved to suppress his statements which were made outside of Miranda, and the prosecution agreed not to use those statements at trial.  The trial court ruled that they were admissible under the Quarles public safety exception, anyway, and Mikolon pled guilty (while reserving the right to appeal the denial of his motion to suppress).

   He did appeal.  The Tenth Circuit reviewed the reasoning of Quarles, and of other cases that have further refined it (particularly US v. Lackey and US v. DeJear).  In Lackey, the Tenth ruled that when an officer searching a suspect asked "do you have any guns or sharp objects on you," the suspect's answers are admissible because the question addresses a substantial risk to officers that they will be injured while searching a suspect.  In DeJear, the Tenth ruled that for an officer to reasonably believe that he is in danger, the facts have to show that the defendant might have (or have recently had) a weapon AND that someone other than the police might gain access to that weapon.

   The Court strongly hinted that these exceptions did not apply here, since the scene was already under control when Mikolon admitted to having more guns.  But then the court decided not to decide one way or another whether the Quarles exception applied here, because since the prosecution had already agreed not to use those statements in trial it didn't matter.  Mikolon's conviction was upheld.

Wednesday, July 3, 2013

Tenth Circuit US v. Briggs 12-5140

Decision here.

   A couple of officers were patrolling a high crime area in an unmarked (but easily recognizable) police vehicle.  It's worth noting that they didn't just arbitrarily label it a high crime area, each of them was able to testify to the existence of several previous investigations of shootings and violent crimes.

   Anyway, Briggs and some other guy were walking around in this high crime area when the cops saw them.  Briggs and the other guy abruptly changed directions and tried to get away without actually running away, but they picked up the pace so much that they may as well have been.  Briggs kept glancing over his shoulder and grabbing at his waistband like he was checking a concealed gun.  They split up when they got to a house, and one of them started knocking on the front door while the other continued through the yard.

   The officers caught up to them at the house, got out of their car, and asked them to come talk to them.  Briggs turned to face the cops but kept backing away, and then Briggs' friend took off running.  One of the officers chased him while the other held Briggs at gunpoint and warned him not to run.

   Briggs told the officer he wasn't going to run, and that he had a gun on him.  He was handcuffed, and the gun was found right where he'd been grabbing while not-quite-running away.  Briggs' friend was never caught.  Briggs was indicted for being a felon in possession of a firearm.

   Briggs moved to suppress the gun as the fruit of an illegal stop.  Calling this one a close issue, the district court ruled that the stop was reasonable.  Briggs pled guilty, but appealed his conviction (arguing that the court had erred in not suppressing the evidence).

   The Tenth Circuit affirmed the judgment of the lower court.  The court cited several factors that supported reasonable suspicion, including the high crime area, Briggs' evasive behavior, Briggs' actions which suggested that he was armed, and Briggs' companion's headlong flight.  Although none of these factors alone would have been enough for reasonable suspicion, taken as a whole they were.

   Regarding the evasive behavior in particular, Briggs argued that because he didn't "bolt" he wasn't making an obvious attempt to evade and therefore wasn't suspicious.  The court held that bolting isn't the only obvious form of evasion, and abruptly changing direction and then picking up the pace while nervously glancing behind you is pretty clearly evasive behavior.  Regarding reaching for his waistband, Briggs argued that this wasn't suspicious because people with CCW permits can legally carry weapons.  The district court had ruled that this wasn't suspicious because the officer didn't see the outline of a gun, and because he admitted on cross-examination that it was possible that Briggs had been pulling up his pants rather than checking a gun (although he had testified on direct that Briggs was grabbing his waistband like he was reaching for a gun).  The Tenth disagreed with both of them.  Even though some people may legally carry concealed weapons, reasonable suspicion doesn't require that all innocent explanations be ruled out before someone be detained.  It doesn't even require that someone be more likely guilty than not.  And even if simply concealing a weapon isn't suspicious, concealing one while attempting to evade the cops in a high crime area... you get the idea.  As far as not seeing the outline of a gun, the Tenth Circuit recognized that cops are better than judges at telling what a concealed weapon looks like.

   Briggs' argued that his partner's flight didn't do anything to create reasonable suspicion that he (Briggs) was involved in criminal activity.  He compared this case to De La Cruz, where the court held that a passenger running from a car didn't create reasonable suspicion that the driver was an illegal alien.

   The prosecution argued (and the court agreed) that this case is distinguishable from De La Cruz.  It isn't that a compatriot running never  creates reasonable suspicion for the one who stays behind.  It's that in De La Cruz, reasonable suspicion had already dissipated, and De La Cruz's friend running didn't bolster it as to De La Cruz.  There was nothing about De La Cruz's friend running that suggested that De La Cruz was an illegal alien.

   By contrast, Briggs and his friend appeared to be acting in concert and a reasonable officer would likely conclude that whatever they were up to, they were both involved in it.  So when one of them started acting even more suspicious (by running away), that suspicion could attach to both of them.  Also, reasonable suspicion as to Briggs had not dissipated at the time that he was detained, his stop was only just beginning.

   So although none of the factors the police relied on would be likely to support reasonable suspicion on its own, they did support reasonable suspicion when viewed as a whole.  The stop was upheld, and Briggs' conviction affirmed.

Monday, July 1, 2013

Colorado Court of Appeals People v. Brunsting 09SC323

Decision here.

   This is a strange decision, in that the court was feeling mysterious.  The supreme court case recounts half the facts, and if you want to know what else happened you have to read the court of appeals decision (which they conveniently link to in the footnotes).  Or you could just read my summary.  It has spoilers.

   Randy Tanner called the sheriff's department to report that his van had been stolen, and that he had found it in front of a particular house.  He also reported that he thought the guy who had stolen it was named Lance (later determined to be Lance Brunsting, the defendant), that Lance had a gun, and that Lance and his friends were dangerous people who were involved with drugs.  And also more guns.  Did I mention they were dangerous?

   Because of all the OMG-ish stuff that Tanner was telling dispatch, they sent five deputies and a sergeant to the call.  When they got there, and while Tanner was telling them his story, a woman came out of the house.  She claimed to own the house, admitted that someone named Lance also lived there, denied knowing anything about the van in the driveway being stolen, and denied the deputies consent to enter.  She also spoke unnaturally loudly, as though she were trying to alert someone to the presence of the police.  They asked her to lower her voice a couple times, and finally just detained her further away from the house.  At some point during this exchange, deputies noticed that the front of the house was wired up with surveillance cameras, and that the stereo and speakers had been stripped from the van.

   Tanner got impatient with the deputies, and told them that if they didn't hurry up and knock on the door then he would (at this point, I'd have been really tempted to pull chocks and let the tweakers sort it out amongst themselves).  The deputies tried to get ahold of the occupants of the residence by phone, and then decided to knock on the door.

   In light of everything Tanner had said, and the woman's behavior, and the surveillance cameras, the deputies recognized that they were potentially exposing themselves to ambush by these armed & dangerous suspects.  In order to prevent that, the sergeant assigned a deputy to cover the left and right sides of the house while the others knocked on the front door.

   Deputy Carroll was assigned to cover the side of the house near the driveway.  As he was heading to his assigned position, he saw that there was a security camera pointed right at where he would need to be.  In order to avoid that, he instead took up a position just inside the fenced back yard.  And this is where the supreme court's telling of the story ends... they just say that this was followed by "a rapid series of events."

   The rapid series of events was that Carroll saw someone poke their head around the corner, so he followed them further into the backyard, and handcuffed and searched them.  He also saw other people in the back door, and ordered them out of the house at gunpoint.  One of them was later found to have dropped a gun.  Another deputy, hearing Carroll's orders, jumped the fence into the backyard to go help.  On his way, he saw some meth cooking gear through a window.  The deputies then entered the house and found Brunsting hiding inside.  While searching him, they found some meth and paraphernalia.  The drug task force was called to the scene, they got a search warrant, and found meth precursors.  Brunsting was charged with (and eventually convicted of) manufacturing a controlled substance, possession of a controlled substance, and POWPO.

   Brunsting appealed his conviction, arguing that the deputies' behavior was rife with constitutional violations, beginning with Carroll's trespass into the back yard.  The court of appeals held that Carroll's entry into the back yard was unlawful, and ordered the suppression of everything that followed (thereby reversing Brunsting's conviction).  The prosecution appealed.

   The Colorado Supreme Court recognized that the deputies had probable cause to search the house for evidence related to the theft of Tanner's van, as well as for the suspect in that theft.  The question was whether or not the warrantless search was justified by exigent circumstances.  The court describes three different situations where exigent circumstances exist: 1- when the police are engaged in hot pursuit of a fleeing suspect, 2- when there is a risk of immediate destruction of evidence, and 3- when there is a colorable claim of emergency threatening the life or safety of another.

   Regarding #3, the court held that it doesn't matter whose life and safety is being threatened.  It could be the responding officer's or some other person's, and either way it means there's exigent circumstances.  The two important questions are: 1- whether or not there's an objectively reasonable basis for believing that there is an immediate need for the police to protect themselves or someone else, and 2- whether or not the manner and scope of the search are reasonable.

   Reasonableness depends on a broad set of factors, none of which are the be-all and end-all.  It's the totality of the circumstances.  One of the factors that the courts may consider is the degree of intrusion for a search.  A minimal or negligible intrusion is easier to justify.  In this case, Carroll simply standing on the other side of the fence from where he normally would be allowed to stand was held to be a minimal intrusion (especially when weighed against his safety reasons for doing so: standing in front of the camera would have been too dangerous, and abandoning his post would have left other officers vulnerable to ambush).  So the appelate court's decision was reversed, and Carroll's initial entry into the back yard was held to be reasonable.

   But that, again, is where the Supreme Court's narrative stops.  They didn't decide if all that other shit that Carroll did after entering the back yard was reasonable.  They only decided that he was good up to that point, and sent the case back to the court of appeals to decide whether or not the other alleged constitutional violations should lead to a suppression of the evidence.

Friday, June 28, 2013

Colorado Court of Appeals People v. Poindexter 09CA0434

Decision here.

   Poindexter attacked a woman and stole her car, then led the police on a chase.  At the end of that, he jumped out of the car, broke into an apartment building and hid from the police in there.

   After he was caught, he was charged with burglary (among other things).  In order to meet the elements of burglary in Colorado, a person has to unlawfully enter or remain in a building or occupied structure with the intent to commit a crime against another person or property.  The prosecution's theory was that he broke into the apartment building with the intent to commit obstructing a peace officer.

   He was convicted, and appealed.  The Court of Appeals held that under these circumstances, obstructing a peace officer is not a crime against a person.  Rather than broadly classifying all crimes as either being against a person/property or not, the court decided to take a case-by-case approach, and look at whether or not the circumstances of the crime at issue support the definitions found in Black's Law Dictionary:

Against a person: A crime against the body of
another human being. The common-law offenses against
the person were murder, manslaughter, mayhem, rape,
assault, battery, robbery, false imprisonment, abortion,
seduction, kidnapping, and abduction.

Against property: a category of criminal offenses in which the
perpetrator seeks to derive an unlawful benefit from — or do damage
to — another's property without the use or threat of
force. Examples include burglary, theft, and arson (even
though arson may result in injury or death).

   In this case, Poindexter committed obstruction by hiding from the police: using an obstacle (the building) to hinder or impair the officers' enforcement of the penal law.  Not a crime against a person or property.  If he had committed obstruction by using force against the officers, that would have been a crime against a person, which would mean under those circumstances obstruction could be a predicate offense for burglary.

   Since in this case obstruction could support a burglary charge, that conviction was vacated.  His other convictions (vehicular eluding and aggravated motor vehicle theft) were upheld.  He had argued that the evidence didn't support the requisite recklessness for the vehicular eluding charge, and that without the eluding charge the aggravated motor vehicle theft charge couldn't stand.  The court recognized that driving at a high rate of speed and jumping from a car (which still had a passenger and then crashed into a snowplow) is reckless.

Colorado Court of Appeals People v. McMinn 10CA0734

Decision here.

   McMinn ran over a deputy while he was driving away from a domestic violence call.  Over the next 20 minutes, he led other deputies on a series of short pursuits, getting away from them each time... except the last.  At the end of that pursuit, he slid off the roadway into the snow, and the deputy who was chasing him at the time crashed into him to push him further down the hill and pin his car.  Then they arrested him.

   He was charged with four counts of vehicular eluding, and he argued that they should be merged into one count because it was one continuous attempt to get away.  The prosecution argued that there were a separate set of facts (including different times, locations, deputies, and actions taken by McMinn) to support each of the four separate counts, and the trial court agreed.  McMinn moved to add four counts of eluding a peace officer (apparently hoping that the jury would convict him of the four misdemeanors instead of the four felonies).  McMinn was convicted on all counts.

   He appealed, renewing his argument that the four counts of vehicular eluding (and now also the four counts of eluding a peace officer) should be merged into one.  The Colorado court of appeals held that the four separate pursuits supported four separate charges, and his convictions were upheld.

Monday, June 17, 2013

Tenth Circuit US v. Dyke 12-3057

Decision here.

   Dyke and Steele were ran a small drug dealing and forgery operation in Kansas.  Undercover government agents convinced them to expand into counterfeiting currency and selling meth, something which Dyke said he'd been dreaming of for years.  Reach for the stars, I guess.

   Anyway, Dyke and Steele went for it, with the assistance of the undercover agents who provided the expertise, some counterfeiting equipment, and the initial batch of meth.  What with the government being in on the operation from the beginning, they were unsurprisingly arrested.

   They argued entrapment at their trial, but the jury didn't see it that way and they were convicted.  On appeal, they argued that the agents' behavior was outrageous governmental conduct.

   The Tenth Circuit explains entrapment and outrageous conduct in this decision.  Entrapment is when the government induces a defendant  to commit a crime that he would not otherwise be predisposed to commit (that's according to federal statutes.  Colorado statutes put forth a similar sentiment using different terms, so the effect on state charges might not quite be identical).  Obviously, Dyke and Steele were predisposed to deal drugs and commit fraud, so entrapment did not apply.

   Outrageous governmental conduct is a little weirder.  This defense isn't based on statute, but rather on court decisions related to the due process clause.  And it isn't even entirely settled whether the Tenth Circuit recognizes it or not (Judge  Gorsuch describes the circuit's position on this defense as being in the never say never camp, or at least the don't-say-never-if-you-don't-have-to camp).  With that instability in mind, this defense is characterized by either excessive government involvement in the creation of the crime, or significant government coercion to induce the crime.

   Things like buying the suspects beer, trading a fuel pump for contraband, and offering expertise and equipment (which is the sort of thing the agents in this case did) don't meet this standard.  The court talks about how a person's prior criminal conduct helps determine what sort of investigative techniques would be outrageous (setting up someone with no criminal history is a little different than setting up a drug dealer by convincing them to sell different drugs).

   In any event, if there is an outrageous governmental conduct affirmative defense in this circuit, it doesn't apply to this case.  Nor does entrapment.  The convictions were affirmed.