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.