Monday, April 22, 2013

US Supreme Court Missouri v. McNeely 12-1425

Decision here.

   This case does more to scold the police and prosecutors in Missouri for laziness than it does to actually set any precedent.  You'll see what I mean.

   So McNeely was stopped for speeding and weaving.  The next part of this looks like any other DUI investigation: bloodshot eyes, slurred speech, smell of alcohol, suspect admits to having two beers, has difficulty standing, and does poorly on FSTs.  And McNeely gets arrested.  Since this is his third DUI, this one was a felony under Missouri law.

   On the way to the station, McNeely says that he'll refuse a breath test.  So the officer goes to the hospital, where McNeely refuses a blood test.  For some reason, the officer has blood drawn from McNeely anyway.  The officer did not try to obtain a warrant, and there was really nothing special about this DUI.  He would later testify that he didn't try to obtain a warrant because he didn't think it was legally necessary (seems like he hasn't read Gant.  The courts don't like it when we act like that).

   Unsurprisingly, the trial court suppressed the evidence.  And this is where it gets dumb.  The prosecution appealed this case all the way to the US Supreme Court.  The prosecution's argument was that the natural dissipation of alcohol in the blood stream automatically constitutes exigent circumstances.  Under this proposed standard, no other factual background would be necessary, no other aggravating circumstances, just the fact that drunk people don't stay drunk forever  would mean that every DUI arrestee could be subjected to a warrantless, non-consensual blood draw.  

   The Supreme Court describes exigent circumstances as cases where "there is a compelling need for official action and no time to secure a warrant."  Most Fourth Amendment questions (including exigency) are decided by looking at the totality of the circumstances, which means that the outcome of each case depends on a lot of case-specific information.  If you change the facts then you change the outcome, and questions like these don't often lend themselves to bright-line rules.

   But none of those details were properly before the court in this case; the prosecution's sole argument was that EVERY drunk driving investigation involves exigent circumstances based solely on the dissipation of alcohol in the bloodstream.  The Supreme Court disagreed, and held that it's not that simple.  In some cases, dissipation of alcohol would still create exigency, but you need more than just that one fact.  The suppression of the evidence in this case was affirmed. 

Sunday, April 21, 2013

Tenth Circut US v. Madrid 12-2095

Decision here.

   An anonymous 911 caller reported that there was suspicious activity in the parking lot of an apartment complex.  He reported that there were two men and two women, and that the two men were "in each other's faces" and looked like they were about to fight.  He described the people involved and their vehicles.  He expressed fear for his fiancee's safety (she was apparently about to arrive). And when the police showed up and the suspects scattered, he said so.

   Officers arrived about five minutes after the call was first placed.  Based on the information relayed to them from dispatch, they stopped both cars.  Madrid was the driver of one of them.

   The officers who stopped Madrid recognized him from previous contacts (one of them had served a search warrant on his house a month ago).  They both knew that he was a convicted felon.  The cover officer saw a rifle case in the back of Madrid's car, so the primary officer got him out of the car and handcuffed him.  The cover officer left for five minutes (the officer who had stopped the other car needed backup while arresting one of the occupants for a warrant), then returned and took the rifle case out of the car.  It did, in fact, contain a rifle.

   The officers told Madrid that he could be charged with being a felon in possession of a firearm, and agreed to let him work off the charge by assisting them in other investigations.  Madrid was released, but his rifle was kept as evidence.  No report was filed at the time.

   Madrid did not assist the police in other investigations, so they went forward with charges against him.  He moved to suppress the rifle, arguing that the stop of his car had been illegal.

   Terry v. Ohio established a two prong test for determining the reasonableness of investigative stops.  First, they must be justified at their inception.  Second, they must be reasonably related in scope to the circumstances justifying the detention.  Madrid's argument is that the stop was not justified at its inception.

   The question is whether officers had a particularized and objective basis for believing that Madrid was doing something illegal.  The courts have held that as long as this standard is met, reasonable suspicion can exist even where it is more likely than not that the person detained was not guilty of anything.

   Madrid argued that the officers who stopped him should have known that no physical fight had occurred, but they were responding to a call of two males who were about to fight.  They had reason to believe that Madrid (and the others) had just been involved in criminal activity, and the covernment's interest in stopping people who are currently engaged in or fleeing from the scene of criminal activity is stronger than its interest in stopping people who have previously been involved in criminal activity and are now going about their (lawful) business.

   Madrid argued that the court should have taken into account the minor nature of the crime the police were stopping him for.  The court recognized that Madrid was apparently fleeing from the scene of a reported fight, and also noted that his initial detention was no more intrusive than a traffic stop.  It only became more intrusive after the police had probable cause to believe he was a felon in possession of a firearm.

   And finally, Madrid argued that the anonymous tip was unreliable and did not justify stopping him.  The courts have identified five relevant factors in determining the reliability of an anonymous tip: 

[R]elevant factors include: (1) whether the informant lacked "true
anonymity" (i.e., whether the police knew some details about the
informant or had means to discover them); (2) whether the informant
reported contemporaneous, firsthand knowledge; (3) whether the
informant provided detailed information about the events observed;
(4) the informant's stated motivation for reporting the information;
and (5) whether the police were able to corroborate information
provided by the informant.

   In this case, the informant had true reliability.  The police could have speculated that he or his fiancee lived in the apartment complex, but they had no phone number, no way of knowing whether or not he really lived there, and no way of knowing whether or not he would stay there once they arrived.  On the other hand, he was clearly reporting contemporaneous, firsthand knowledge.  He was providing detailed information about the events (such as suspect descriptions), his stated motivation for making the report was the safety of his fiancee, and although any fight was over when they got there the police were able to corroborate the suspect vehicle descriptions provided by the informant.

   Anyway, anonymity notwithstanding, the informant's tip was sufficiently reliable to justify the brief detention which led to Madrid's arrest.  His conviction was affirmed.

Tenth Circuit US v. McDowell 11-3337

Decision here.

   Another not-quite-Jardines case.

   An officer in Arizona went to a house to look for a woman who was wanted for assault in another jurisdiction.  As he was walking across the driveway to the front door, he noticed an overpowering marijuana smell from the garage.  He could still smell it from the front door, but it was strongest near the garage.  Instead of knocking, he called for backup.

   Another officer, a sergeant, and then a K9 also smelled marijuana from the garage.  One of the officers stepped off of the path to the front door to look through the window next to the door, but couldn't see anything.  Then everyone backed off and watched the house while a detective wrote up a search warrant.  While they were waiting, a van left the house.  One of the officers watching it stopped the van for not having its headlights on.  The driver gave a fake name, and the van smelled strongly of marijuana.  A search of the van revealed packaging materials, some of which still had bits of marijuana stuck to them.

   Eventually, a search warrant was obtained and executed.  There was a lot of weed in the house, a quarter of a million dollars, and several suspects (including McDowell).  Basically, the suspects were packaging marijuana in axle grease to reduce the smell, shipping it to Kansas City, flying out to Kansas City to collect payment, driving home with the cash, and then buying marijuana to package in axle grease.  Rinse and repeat.

   Charges were filed, McDowell was convicted, and he appealed to the Tenth Circuit.  A couple of the arguments that he made on appeal are just nit-picking about his sentence (which didn't work out for him), but there's only one argument he made which is relevant to this blog.  He argued that the officers violated his Fourth Amendment rights by entering his curtilage to conduct a warrantless search.

   There are four factors which the courts consider in determining whether property falls within the curtilage of the home.  Those are: : (1) the proximity of the area to the house; (2) whether the area is included within an enclosure surrounding the home; (3) the nature of the use to which the area is put; and (4) the steps taken by the resident to protect the area from observation.  McDowell admits that most of those factors don't really suggest that his driveway was part of the curtilage, except for #1: the proximity to the house.   He argued that this was so overwhelmingly in his favor that it outweighed the other three factors.  The ultimate question is whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection.  

   Having said all that, the court then made it clear that in this case it didn't really matter whether or not the officers intruded on the curtilage; they were there to knock on the front door (the court didn't seem to think it was all that important that the officers changed their minds about knocking once they smelled the weed).  The court also found it irrelevant that one of the officers stepped off of the path in order to look into the window, since this didn't lead to the discovery of any evidence.

   Finding that the officers had a lawful reason to be where they were when they noticed the smell of marijuana, the court declined to consider what the boundaries of the curtilage were in this case.  McDowell's conviction was affirmed.

Tenth Circuit US v. Shuck 12-5072

Decision here.

   Bengston called the sheriff's department to complain about the smell of marijuana coming from the trailer next door to his.  Three deputies went to the trailer to do a knock & talk.  The front door of the trailer was behind a chain link fence (along with a locked gate that didn't look like it had seen use in a while), and because of the way the property was situated it looked like visitors would normally go to the back door.  So the deputies went to the back door and knocked.  On the way to the back door, they saw a PVC pipe sticking out of the trailer (one of the deputies got down on his hands and knees to smell it, and could smell marijuana).  There was no answer at the back door, and the windows were all covered (some of them boarded up).  The trailer did not look like anyone lived there.  Back at the office, the deputies called the water company and learned that the apparently abandoned residence was going through 1000-2000 gallons of water per month.  Shuck was the guy who was responsible for the water bill.

   The deputies applied for a search warrant for the trailer, which was granted.  Inside, they found a marijuana grow.  They contacted the jurisdiction where Shuck lived (after getting his address from driver's license records), and those cops got a search warrant for Shuck's house which revealed more evidence.

   Shuck and some other guy were indicted for various crimes related to the marijuana grow.  Shuck moved to suppress the evidence obtained at both the trailer and his own residence, then conditionally pled guilty after his motion was denied.  Then he appealed, and the case made its way to the Tenth Circuit.

   Shuck's argument to suppress evidence at his house was that the second warrant was the fruit of an unlawful search of the trailer, so everything revolves around what happened with the marijuana grow.  His argument to suppress that evidence was that the police violated his Fourth Amendment right by going to the back door, and by smelling the PVC pipe.  He referred to Jardines, arguing that the officers here did something similar.

   The court describes curtilage as "the area to which extends the intimate activity associated with the sanctity of a man's home and the privacies of life."  This area is considered part of the home for Fourth Amendment purposes, except that "The portion of the curtilage that is the normal route of access for anyone visiting the premises is only a semi-private area on which police may set foot if they restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches)."  Given that in the case of Shuck's trailer, the back yard was the obvious way for visitors to approach, the officers were entitled to walk to his back door.  And Shuck had no legitimate expectation of privacy in the marijuana smell that he was releasing into the public.  The courts have held that people's legitimate expectation of privacy protects them from searches that could reveal lawful activity. 

   The decision also mentions "plain smell" as an extension of the plain view doctrine, and describes that a "human sniff" is not a search.  The deputies did not violate Shuck's Fourth Amendment rights, and the lower court's denial of his motion to suppress was affirmed.

Monday, April 8, 2013

Colorado Supreme Court People v. Barraza 12SA284

Decision here.

   Some guy (one of Barraza's friends, apparently) was arrested in Thornton for vehicular trespass.  The victims in that case called the police again, complaining that they were being harassed because of that arrest. 

   According to the victims, someone knocked on the door and identified themselves as the police.  When they answered, they were instead confronted with some guy demanding to know who called the police, saying that someone would pay, and saying that he would be back.  Later, he came back and knocked again.  This time they refused to answer the door. 

   The victims thought they had a name for the suspect (Barraza had left a note when he crashed into their car a few months ago).  The responding officer made a photo lineup in his car, and everyone in the apartment separately identified Barraza as the one making the threats.  The lineup was later suppressed by the trial court, but this decision doesn't say why.

   Barraza's last known address was in Westminster, so two Thornton officers and two Westminster officers went there.  Barraza's brother let them into the house, and then the investigating officer asked to talk to Barraza in the front yard.  He led him away from the others and asked him about the case in the driveway.  Barraza admitted to going over to the victim's house to ask who called the police, but denied making any threats.  Barraza was arrested and taken to the police station where he waived Miranda and then made pretty much the same statement.

   The trial court ruled that because there were four officers present and Barraza was interviewed away from his family (in the driveway), he was not free to leave and therefore should have been read Miranda warnings.  The trial court suppressed his first statement because they were made without Miranda warnings, and suppressed his second statement as fruit of the poisonous tree.  The court did note that many of the traditional indications of custody (like handcuffs, use of force, intimidating tone, being told he was under arrest, etc..) were absent in this case, but was really hung up on the fact that four officers were present and that Barraza wasn't free to go.

   The prosecution appealed, arguing that the trial court incorrectly applied fourth amendment reasoning (whether or not someone is free to go) to a fifth amendment question (whether or not someone is in custody).  The Colorado Supreme Court again reiterated that the custody test for Miranda purposes is whether someone's freedom has been restrained to the degree associated with formal arrest.  Voluntarily walking to the driveway to talk to a cop doesn't meet that standard doesn't meet that standard, even if there are four cops on scene.  That means Barraza was not in custody at that point, so Miranda did not apply.  That also means that the later statement was not fruit of the poisonous tree.  The suppression of Barraza's statements was reversed, and this case was sent back to the trial court for further proceedings.

Colorado Supreme Court People v. Luna-Solis 12SA75

Decision here.

   This case gets complicated because there are multiple agencies involved.  It began as two separate kidnapping and rape investigations involving the same suspects in different jurisdictions.  The incidents occurred in 2002 and 2003 in Denver and Aurora.  During each crime, multiple suspects would abduct a woman late at night, drive her somewhere secluded, rape her, and then abandon her.  In Aurora's case, DNA for one suspect was found.  In Denver's case, DNA from two suspects was found (one of which was the same as the DNA in the Aurora case).

   A CODIS hit identified Jesus Luna-Solis as the second suspect in the Denver case.  That led to more investigation of the Aurora case, including a photo lineup.  The Aurora victim identified Luna-Solis as one of her rapists.  He was arrested, charges were filed in Arapahoe County.

   Then Denver reopened their investigation.  They didn't want to rely on DNA samples analyzed by another lab, so they obtained a rule 41.1 court order to obtain a sample of Luna-Solis' DNA.  Luna-Solis was in custody in Arapahoe county, and they went there to do their thing.  

   Before obtaining the DNA sample, they tried to interrogate him (even though there is Colorado Supreme Court precedent which prohibits custodial interrogations during the execution of a 41.1 order... more on that in a minute).  They told him they wanted to talk about a 2002 sex assault, and he said he should probably have a lawyer.  The detectives started to pack up their recording equipment, but Luna-Solis started talking about the case without any prompting or encouragement from them.  So they read him the Miranda warnings, he waived his rights, and they had their interrogation.  During that interrogation, Luna-Solis made some incriminating statements which were only relevant to the Aurora case (he admitted to driving a type of car that was used in the Aurora case.  The Denver victim wasn't able to identify the car).  After the interrogation, the detectives collected the DNA sample.

   The prosecution for the Aurora case tried to introduce evidence from the Denver investigation.  The trial court suppressed the DNA evidence and the statements Luna-Solis made to the Denver detectives, and the prosecution appealed.

   The DNA part gets a little technical, and has to do with a prosecutor's discover obligations and when a 41.1 nontestimonial identification order is appropriate vs. when a rule 16 nontestimonial identification order is appropriate.  Most cops don't really need to know that, so I'll just say that the trial court's decision was reversed and you can find out why in the court case.  On to the good stuff: custodial interrogation.

   There are a couple of different reasons why his statements would be suppressed.  One is an issue with how the 41.1 was handled, the other is an issue with his right to counsel.

   So rule 41.1 allows us to take someone into custody without probable cause for the limited purpose of obtaining physical evidence that would tie them to a crime (like fingerprints, or pictures).  After that, they have to be released (unless there is now probable cause to arrest them).  Since they are being taken into custody without probable cause, the Colorado Supreme Court says that even if they waive Miranda a suspect may not be subjected to custodial interrogation during the execution of a 41.1 order.  Doing so is a violation of their constitutional rights, and the statements will be suppressed even if they are voluntary.

   In this case, Luna-Solis was interrogated before the 41.1 order was executed, though.  The police didn't have to take him into custody to serve the order, he was already being held for a different offense than the one they were investigating.  So they narrowly avoided violating his rights with that one (very narrowly... the Chief Justice wrote a dissenting opinion which says he would have found that this WAS a violation and therefore suppressed the statements).

   As far as the right to counsel goes, there is no question that Luna-Solis' statements were voluntary and in compliance with Miranda.  The police scrupulously honored Luna-Solis' initial request for counsel, but he reapproached them.  He was informed of and waived his rights, including his right to counsel.  However, the trial court held that the statements were still inadmissible because the Denver police were interrogating him (at least in part) about an Aurora case where charges had already been filed and where Luna-Solis already had an attorney who had not been informed that he was being interrogated now.  The court reasoned that Luna-Solis could not at that point waive his right to counsel with regards to the Aurora case.

   The Supreme Court saw it otherwise.  A defendant's right to counsel as guaranteed by the 6th Amendment is in no way superior to his right to counsel as implied by the 5th Amendment right against self-incrimination.  The difference is that the 6th Amendment right attaches once charges have been filed and is specific to each offense, where the 5th Amendment right is more generalized.  But they can both be waived, and a valid Miranda waiver serves to waive both of them. So since the detectives did comply with Miranda and Luna-Solis' statements were voluntary, once the interrogation led to the Aurora case they were still free to keep digging.

   The suppression order was reversed, and the case sent back to the trial court for further proceedings.

Tuesday, April 2, 2013

Tenth Circuit US v. Benoit 12-5014

Decision here.

   Benoit lived with his girlfriend (DeGraffenreid) and one of her relatives (Kidd).  While he was not home, his girlfriend used his computer to pay bills.  As she was doing so, she found child porn videos and called the police.

   When the officer arrived, DeGraffenreid and Kidd invited him in.  Kidd (the more tech-savvy of the two) offered to show him the video, and he said "okay."  He watched ten seconds of a video depicting a minor female having sex with an adult male, then called a detective.  The detective told him to seize the computer and obtain witness statements from DeGraffenreid and Kidd.  The computer was seized, and after obtaining a search warrant the cops found 320 child porn images and 80 child porn videos.

   A few days later, Benoit called the police to ask to meet about this case.  He met with them at a truck stop (I'm guessing he was no longer welcome at home...) and admitted to possessing child porn.  Criminal charges followed, and a jury convicted Benoit of possessing and receiving child porn.  Benoit appealed.

   The Tenth circuit held that the federal crime of possessing child porn is a lesser included offense for receiving child porn.  So the lower court will have to pick one of the convictions to stand and dismiss the other.  There was also a restitution issue that needed a little work.  But we're here for the fourth amendment stuff.

   Benoit argued that the officer's search and subsequent seizure of his computer was a violation of the fourth amendment.  The court began by explaining third party consent: essentially, a person has actual authority to consent to a search if they have "mutual use of the property by virtue of joint access" or "control for most purposes."  A person has apparent authority to consent if the facts available to the officer would lead a person of reasonable caution to believe that they had actual authority (even if they actually don't).  Consent by a person with actual or apparent authority to consent is a well-established exception to the warrant requirement.

   After explaining that, the court went on to address private searches.  The fourth amendment protects people from unreasonable searches by the government, but not from unreasonable searches by private citizens.  But if the government "coerces, dominates, or directs the actions" of the private citizen, then the search is really a government action after all (and therefore governed by the Fourth Amendment).

   In this case, DeGraffenreid and Kidd were the ones who did all of the warrantless searching.  DeGraffenreid found child porn on the computer when she was using it on her own.  Kidd repeated this search when the officer arrived.  The officer said "okay," when she asked if she could show him the video, but this isn't enough to say that he directed the search.  All of these actions were undertaken by DeGraffenreid and Kidd on their own initiative, and the officer was just a witness to the search.  So the search was not a government action, and the court doesn't have to decide whether it was reasonable or not; the fourth amendment does not apply to private searches.

   On to the seizure of the computer: in order to seize evidence under the plain view doctrine, three elements have to be met. 1- The officer must not have violated the Fourth Amendment in arriving at the place where the evidence could be viewed. 2- The item must be in plain sight, and it's incriminating nature must be immediately appparent.  3- The officer must have a lawful right of access to the object (in other words, if you're on the street and you see something incriminating through the window of a house, that doesn't justify warrantless entry to go get it).

   In this case, DeGraffenreid and Kidd both had actual authority to consent to the officer's entry, and they had invited him in.  The child porn was obviously child porn, and the officer could see that.  And since he was already in the house, he had lawful access to the computer.  The seizure of the computer was proper.

   As the evidence was properly admitted, Benoit's conviction was affirmed (one of them, anyway).