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.

US Supreme Court Salinas v. Texas 12-246

Decision here.

   In December 1992, two brothers were shot to death in Texas.  The investigation led the police to suspect Salinas, but they didn't have much evidence against him.  Salinas came to the police department voluntarily to be interviewed, and he also allowed the police to take his shotgun for forensic tests.  He was free to leave at any time, and was not read Miranda warnings.  The interview lasted about an hour.

   Although Salinas answered most of the investigator's questions during the interview, at one point he did not.  The investigator asked if the shells recovered from the crime scene would match Salinas' shotgun.  In response, Salinas looked down to the ground,shuffled his feet, bit his lip tensed up, and clenched his fists in his lap.  He stood silent for a moment, until the investigator tried asking him different questions.  Then he started talking again.

   At the end of the interview, Salinas was arrested for some traffic warrants.  He was not charged with murder because there wasn't enough evidence.  A few days later, though, police talked to another witness who said he had heard Salinas confess to the killings.  But by then Salinas was gone.

   In 2007, Salinas was found living in the same area under an assumed name.  He was arrested for the 1992 murders.  At his trial, the prosecution used his refusal to answer the investigator's shotgun testing question against him.  He was convicted (but only sentenced to 20 years.  Is Texas going soft?).  He appealed his conviction, arguing that the prosecution's introduction of his silence violated his Fifth Amendment rights.  This appeal made it's way to the Supreme Court.

   The decision explains that the Fifth Amendment guarantees that a person may not be compelled to be a witness against himself in a criminal case, but it doesn't universally protect silence.  In order for a person to be protected by the Fifth Amendment, they have to actually assert that right.

   That isn't to say that they have to specifically mention the Fifth Amendment, there's no ritualistic formula that they have to recite.  But they have to somehow put the government on notice that they are invoking their rights, and simply not saying anything doesn't do that.

   There are two exceptions to that rule:  First, a defendant doesn't have to actually take the stand at his own trial to advise the government that he is invoking his rights.  That would be pointless.  Second (and much more interestingly), when governmental conduct renders the defendant's waiver of his rights involuntary then he doesn't have to affirmatively invoke his rights in order to be protected by it.

   In other words, a person normally has to tell the police that he doesn't want to talk, but if the police apply so much coercive pressure that the courts find that he wasn't acting of his own free will in not asserting his right against self incrimination, then his right asserts itself.  In order for a person to validly waive his right, that waiver has to be voluntary.  And there are other exceptions related to this exception: in Miranda, the court held that the coercive pressures inherent in custodial interrogation render a waiver of someone's right to remain silent involuntary unless they are advised of their rights before they waive them.  In Garrity, the court held that the threat of withdrawing a governmental benefit (employment, in that case) makes invoking the right so costly that a defendant doesn't need to say anything to invoke it.  And in cases where asserting the privilege against self incrimination would somehow incriminate the defendant, they may exercise the right through silence (those have been cases where defendants opted to not fill out tax forms that would reveal illegal income, or that sort of thing).

   None of that was the case with Salinas, though.  He wasn't in custody or subjected to any undue coercion, he wasn't in a situation where saying he didn't want to talk would incriminate him.  His momentary silence during a precustodial interview could be used against him, and his conviction was affirmed.

Wednesday, June 12, 2013

Tenth Circuit US v. Christie 11-2106

   Before I summarize this opinion, let me just say that Rebecca Christie should go die in a fire.  I say this as an avid video game enthusiast.  To hell with her.

   With that having been said... Rebecca Christie liked to play video games on her computer.  She would begin her day at noon, play until three in the morning, and occasionally take a break to care for her three year old daughter.  Her husband apparently provided some care to the child (not that he was father of the year or anything), but between the hours of 10 pm and whenever-Rebecca-could-be-bothered-to-wake-up, their daughter was shut in her bedroom, behind a door which she was incapable of opening, and unable to access food or water.  Even when she wasn't locked up, she wasn't properly cared for (sometimes eating food that was left out for the cats since she didn't have enough for herself).  Occasionally, Rebecca's ten year old stepdaughter would visit.  She would one day go on to testify that Rebecca usually didn't feed them until noon, and that she would give some of her food to Rebecca's daughter because she was so obviously hungry.

   Then one day, Mr. Christie was sent on a military deployment.  Nine days later, Christie's daughter died of dehydration.  An autopsy revealed no underlying medical causes: Rebecca Christie's three year old daughter died of being ignored.  Dehydration is a pretty obvious and gruesome way to go.  Christie didn't notice because she was too busy with World of Warcraft (even after finding her daughter near death, she was back on-line in an hour).

   Since this happened on an Air Force base, the feds had jurisdiction.  At some point during the investigation, they seized Christie's computer (her husband consented to the seizure, and she didn't object).  Then the lead investigator got drawn into another investigation for five month, and nothing was done with this case (I'm not sure what he was investigating, but the court acknowledges that it was a higher priority than this case).  When he was freed up from his other cases, he applied for a search warrant for the computer.  During the interim, Christie had requested copies of some of the documents that were on her computer, and he had refused to provide her with them.  She never objected to him hanging onto the computer itself, though.

   The search warrant was granted, which revealed some incriminating information.  The investigator applied for another search warrant, which would authorize a more thorough search of the computer.  This was granted, too, and more incriminating evidence was obtained.

   Christie was eventually charged with (and convicted of) second degree murder.  That charge was under a federal statue, but she was also convicted of a couple of "assimilated" crimes (which are basically state crimes charged in federal court.  Until I read this decision, I didn't know that the feds could do that).

   Christie appealed her conviction for a variety of reasons, but only a couple of them are relevant to this blog.  First, she argued that the five month delay between the seizure of her computer and the application for the warrant rendered the search unreasonable (she had a similar argument for the second warrant).  Second, she argued that the warrant wasn't specific enough.

   Regarding her first argument: the Tenth circuit recognized that a delay in searching seized property can be unreasonable.  If the government seizes something that might have evidentiary value, but then a search reveals nothing incriminating about the seized item, then the property should be returned to its rightful owner.  So depriving Christie of her property for five months before even finding out whether or not it was evidence could certainly be unreasonable.  The thing is that the seizure of the computer was based on consent from someone with apparent authority to give consent, and Christie never actually objected to it.  During the five months, she never made any attempt to get the government to give her computer back, so she really doesn't have much to stand on there.  On the other side of that disagreement, the government had a (somewhat) reasonable explanation for the delay in that the agent had more important things to do.  The court made it clear that this isn't a blanket justification, and that this issue was only just barely decided in the government's favor.  In general, when there's going to be a long delay like that the investigator should find someone else to apply for a warrant more expeditiously.

   The delay in the second warrant wasn't such a big deal.  By then, the investigator knew that the computer contained incriminating evidence.  A person does have the right to have their property returned to them even if it's evidence, but not until after the trial.  So he could take all the time he wanted to apply for the second warrant.

   Regarding her second argument: search warrants have to particularly describe the place to be searched and the thing to be seized.  Searches should be tailored to the facts that justify them, and search warrants are never supposed to be a license for general rummaging by law enforcement.  The warrant in this case authorized a search for:

[a]ll records and information relating to the murder, neglect, and abuse of
[BW] from June 19, 2002 (date of birth) to May 4, 2006, (date computer
seized), including:
1. All photographs of [BW].
2. All correspondence and/or documents relating to [BW].
3. All records and information, including any diaries or calendars,
showing the day-to-day activities of Rebecca Christie and/or [BW].
4. All addresses and/or contact information of friends, families, or
acquaintances who may have had regular contact with Rebecca
Christie and/or [BW].

   Christie's argument is that provision 3 authorized general rummaging, and that for this reason the warrant was invalid and the evidence should be suppressed.  The government argues that all of the numbered provisions were modified by the heading, which limited the search to information relating the the murder, neglect, and abuse of Christie's daughter.  Christie's argument was that the government should specify exactly how they would search the computer for this information, but the government countered that this wouldn't be practical.  There's logistically no way for them to know exactly where in the computer they're going to need to look for this information or what protocols they'll use to find it.  Computers can be tricky places to search, what with the potential for deceptive file names, hiding stuff in weird directories, and whatnot.

   The court held that the heading met the specificity requirement.  Further, the issue of how a search is conducted isn't something that has to be brought up at the warrant application stage.  Even a search with a warrant can be unreasonable if the way that the search is executed is unreasonable, but that's a question to be brought up in court after the fact, rather than expecting an investigator to know exactly where' he'll find evidence before he looks for it.

   All of Christie's arguments failed, and her conviction was upheld.

Thursday, June 6, 2013

Colorado Court of Appeals People v. Moore 11CA2338

Decision here.

   Roger Moore was arrested after an altercation with a private security guard at the Denver City and County Building.  According to the prosecution, he cut in front of someone else in line, put some belongings on the conveyor belt for the x-ray machine, walked through the metal detector, and then tried to collect his property which had not yet been passed through the x-ray.  When a 65 year old security guard tried to stop him, he grabbed her and shoved her (causing an injury to her shoulder).

   Moore was charged with third degree assault on an at-risk adult and with impeding a public official or employee at a public building.  He was acquitted of the assault charge and convicted of the impeding charge, but he appealed his conviction.

   The relevant text in § 18-9-110(2) says:"[n]o person shall, at or in any such public building, willfully impede any public official or employee in the lawful performance of duties or activities through the use of restraint, abduction, coercion, or intimidation or by force and violence or threat thereof." 

   The Colorado Court of Appeals held that a private security guard working at a public building is not a public employee for the purposes of this statute, and vacated Moore's conviction.

Wednesday, June 5, 2013

Tenth Circuit Schneider v. City of Grand Junction 12-1086

Decision here.

   This decision is based on rather sickening circumstances.

   Ofc. Coyne worked for Grand Junction PD, and met Schneider after she called 911 because of an argument with her son.  The investigation had the potential for serious charges against her son, and Coyne kept meeting with Schneider to follow up on the case.  Then one day he signed out from work an hour early, went to to Schneider's house, and raped her.

   She complained, the evidence supported her complaint, and Coyne was arrested and fired.  After bonding out of jail, he killed himself.  Schneider sued the city and various department members (including the chief, Coyne's supervisor, the officer who had handled Coyne's background investigation).  Making matters worse for the defendants, Coyne had a checkered history.  In the three weeks between the completion of his background investigation and the decision to hire him, he was alleged to have done some inappropriate thigns while repeatedly searching a female (the Grand Junction PD first heard about this one after Schneider made her complaint).  Later, while he was employed with Grand Junction, he was alleged to have raped a different woman who he met at work.  The evidence hadn't been enough to support criminal charges (he claimed the sex was consensual, the victim claimed it started as consensual but then became not).  Coyne had received a pay cut and a six month probationary status for that incident, and was still on probation when he raped Schneider.

   The disctrict court granted summary judgment to all defendants because Schneider couldn't prove certain facts required for a 1983 action.  Regarding Coyne's supervisors (and background checker), she couldn't prove that any of them acted with deliberate indifference to the risk that Coyne would do what he did.  Regarding the city, she couldn't prove that there was a city policy that caused Coyne to do what he did.  She appealed this ruling, but the Tenth Circuit affirmed.

Tenth Circuit Pahls v. Thomas 11-2055

Decision here.

   Lots of fine points up for discussion in this decision, but I'll try to gloss over all of that and sum up the underlying pattern.  In 2007, President Bush was visiting the mayor of... a suburb of Albuquerque.  During his visit, security was a joint effort between state and federal officials (the local sheriff's department and the Secret Service, respectively).  There wasn't really any unified chain of command for the event, each agency acted more or less independently from the other with a common purpose.

   Signals got crossed, and each agency applied their own policies to the security problems in front of them.  The end result was that a group of Bush supporters was allowed to watch the presidential motorcade from private property directly across the street, while a group of anti-Bush protesters was required to stand 50 yards away behind a barricade and a wall of mounted officers.

   Yeah, obviously not good.  And unsurprisingly, the protesters sued.  They filed 1983 and Bivens actions against the cops that were running the show from each agency (a Bivens action is a lot like a 1983 action.  The big differences are that Bivens actions are directed against Federal officials while 1983 actions are directed against state officials, and Bivens comes from a court decision while 1983 is from a federal statute).  The officers all moved for dismissal of the claims against them based on qualified immunity.  The district court denied, and this appeal followed.

   As we know, in order to overcome qualified immunity, a plaintiff has to show that 1- the officer he is suing violated a constitutional right, and 2- that right was clearly established at the time.  It can be a little more nuanced than that, though.  Specifically, it isn't enough to merely show that the plaintiff's right was violated, the plaintiff has to show that the officer he is suing violated that right.

   Regarding First Amendment claims, treating people differently based on the content of their speech is serious bad juju.  But in order to show a violation of thier First Amendment rights, the plaintiff has to present evidence that they were treated differently specifically because of their message, not just that they happened to be treated differently and also happened to have a different message than someone else.  In other words, it isn't enough to show that Bush detractors were treated differently than Bush supporters; the plaintiffs have to prove that they were treated differently because the police intended to treat Bush detractors differently than Bush supporters.  And not just "the police" in general, but the specific officers being sued.

   That's an important point that this decision makes very, very clear: just because the police in general might be fucking up, or "Officer A" might be fucking up, doesn't mean that "Officer B" who is acting appropriately and in good faith loses qualified immunity.  

   But I digress.  The facts here couldn't show that any of the individual cops being sued actually intended to treat the protesters differently than the supporters.  Even though the outcome was actually disparate treatment, everyone was acting in line with their own procedures and it just didn't work out all that well.  But we aren't individually liable for what the great collective mass of law enforcement does.  Since the individual officers being sued couldn't be shown to have violated the plaintiff's rights, the decision of the lower court was reversed.  Qualified immunity was granted.

Tuesday, June 4, 2013

US Supreme Court Maryland v. King 12-207

Decision here.

   I'm not sure why this decision is so long, but it is.  Most of it is taken up with a history lesson and a science lesson, so read if you're into that sort of thing.  If not, here's the good parts:

   King was arrested after threatening some people with a shotgun.  As part of the booking process, the police obtained a sample of King's DNA using a buccal swab.  This was in accordance with a Maryland law that required collection of DNA samples from people arrested for certain crimes (violent crimes, rapes, that sort of thing.  Colorado has a statute that requires DNA collection from everyone arrested for a felony).

   King's DNA sample was entered into CODIS (the decision explains what CODIS is, but I figure that most of my target audience already knows).  It was found to match the DNA from an unsolved rape in 2003.  The rape case was reopened, and King was eventually arrested for and convicted of that crime.  He appealed, arguing that the DNA collection from his menacing-with-a-shotgun arrest was unconstitutional.  The Maryland court of appeals agreed with him, and this case made it's way to SCOTUS.

   The justices go on to list all kinds of benefits to properly identifying suspects, and mention that identifying a suspect isn't so much a matter of finding out what their name is.  It's more a matter of ensuring that the person arrested is the same as the person who eventually stands trial, and of finding out what else that person has done.  Then the justices go on to talk about how useful DNA is for those purposes.  They compare it to fingerprinting, saying that the only significant difference is that DNA analysis is a lot more accurate.

   The justices also offer an explanation of the police's legal authority to take pictures, prints, measurements (the Bertillon system is mentioned), etc of someone arrested.  It goes like this: ordinarily, the reasonableness of Fourth Amendment intrusions is gauged by individualized suspicion.  However, the Fourth Amendment doesn't actually require individualized suspicion, it only requires reasonableness.  The courts figure out what is reasonable or not by balancing the governmental interests at stake in a particular case against the individual privacy interests at stake in the same case.

   In the case of searching someone's home, or searching a person in public, or most of what else the police do, the privacy interests are pretty high and the governmental interests depend on the aforementioned individualized suspicion.  But in certain contexts (like the context of a custodial arrest, for example), an individual's privacy interests are so diminished that there need not be any individualized suspicion; the mere fact of an arrest justifies the search of a person whether the police think that the person arrested has weapons/contraband or not.

   Anyway, when a person has been arrested and taken to the police station, this diminished expectation of privacy gets weighed against the government interest in identifying the person arrested, and so things like photographs, fingerprints, documentation of tattoos, and head measurements (if you're really old school) are reasonable and permissible.  And now we can add DNA collection to that list.  The court also mentioned several times that CODIS only uses non-coding DNA, and that the DNA is used only for identification purposes and not for medical or familial testing.  The court also mentioned that the statute in question didn't afford the officers any discretion, which further lessened the need for imposing the judgment of a neutral magistrate.

   Short version: if your state has a law that requires DNA samples be taken from some arrestees, then go ahead and do that.

Monday, June 3, 2013

Colorado Supreme Court People v. Mason 13SA49

Decision here.

   Officers were conducting surveillance on a house they believed to be involved in drug activity.  A pickup left the house.  Shortly afterwards, a deputy stopped the pickup for a couple of moving violations (as near as I can tell from the decision, the deputy wasn't involved in or aware of the surveillance).  The driver's license was also suspended.  An investigator heard the deputy call out the traffic stop, and let the deputy know that he had reasonable suspicion that the driver had just bought drugs.  

   The deputy wrote the driver (Mason) a ticket, but held onto his license and told him he wasn't free to go yet.  During the course of this stop, Mason refused to consent to a search of his truck, and was detained for an extra half hour after getting his ticket while the officers waited for a K9. The K9 arrived, alerted on the driver's door, and a subsequent search of the truck found meth.  Mason was arrested.

   Mason moved to suppress both the initial stop and his additional detention.  The district court found that his initial stop was justified.  The extra detention, though...  not so much.  The meth was suppressed as the fruit of an illegal detention, and the people filed an interlocutory appeal.

   So the "reasonable suspicion" mentioned by the investigator who overheard the traffic stop was based on two factors: 1- One of the residents of the house that Mason was coming from was involved in drug activity.  2: Two weeks prior, the investigator had talked to a woman who had been caught shoplifting whilst in possession of meth.  She had apparently mentioned Mason as being somehow involved in drug activity.

   The problem (or one of the problems, rather) with factor #1 is that there was never any testimony as to the basis of the investigator's knowledge that the resident of the house sold drugs.  It was just an bald assertion, which does nothing to establish reasonable suspicion.  One of the problems with factor #2 is that the information, even if it was reliable, was two weeks old.  There was nothing in the shoplifter's information to suggest that Mason would have drugs at the particular time and place that he was stopped two weeks later.

   Which brings us to the crux of the matter: "Reasonable suspicion that someone is involved in the illegal distribution of drugs is, in and of itself, insufficient to justify his investigative stop and detention whenever and wherever the police choose."  Or just because you know someone is usually up to something doesn't mean you can randomly stop them to see what they're up to today.  Reasonable suspicion is more of a here-and-now test.

   The Colorado Supreme Court upheld the suppression order.