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.