Sunday, November 24, 2013

Colorado Court of Appeals People v. Smoots 11CA2381

Decision here.

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

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

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

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

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

The Colorado Court of Appeals

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

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

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

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

Friday, November 15, 2013

Tenth Circuit US v. Harris 12-5174

Decision here.

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

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

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

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

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

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

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

   Harris' conviction was affirmed.  

Wednesday, November 13, 2013

Colorado Supreme Court People v. Crum 13SA114

Decision here.

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

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

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

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

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

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

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

Monday, November 11, 2013

Colorado Court of Appeals People v. Stell 13CA0492

Decision here.

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

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

Tenth Circuit Blackmon v. Sutton 12-3199

Decision here.

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

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

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

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

Monday, November 4, 2013

Tenth Circuit US v. Cash 12-7072

Decision here.

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

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

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

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

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

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

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

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

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

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

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

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

US Supreme Court Stanton v. Sims 12-1217

Decision here.

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

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

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

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

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