Monday, December 23, 2013

Tenth Circuit Panagoulakos v. Yazzie 13-2003

Decision here.

   Panagoulakos was pulled over for having a temp tag that was too faded to read.  He admitted to the cop (lieutenant, actually.  This will explain some delegation that comes a little later) who pulled him over that there was a gun in the car.  In checking NCIC, the lieutenant found a hit for a protection order.  According to the hit, Panagoulakos was prohibited from possessing a firearm.

   Panagoulakos admitted to knowing about the protection order, but said that the judge had given him permission to carry a firearm and that this was noted in the order.  The lieutenant called a sergeant to make the decision on whether or not to arrest, and was told that an arrest was appropriate.  Given the facts known at the time, I would agree with that.  After all, who believes what suspects say about their own protection orders?  The lieutenant then called for an officer (Yazzie) to actually make the arrest that he had already called someone else to make the decision on.  Yazzie was also directed to check the order to see if it contained the exception that Panagoulakos thought it did.

   Yazzie (who incorrectly believed that all protection orders prohibited the carrying of firearms) took Panagoulakos to the station and reviewed the order.  Federal law prohibits the restrained party of a protection order from carrying a firearm if the order involves intimate partners.  In this case, the order did not have the "intimate partner" box checked, although there was some language on the order which said If you're a spouse or former spouse, cohabitate or cohabitated, or if you have a child together, then you can't have a gun.  Panagoulakos' relationship with the protected party was listed as "ex-boyfriend."

   Yazzie went ahead and filed the charges.  Panagoulakos sued everybody who was involved in this case for wrongful arrest, illegal seizure of his property, violation of due process, and negligent hiring/training/retention.  The district court held that Yazzie was entitled to qualified immunity as it related to the initial arrest, because the initial arrest was supported by probable cause.  The district court also held that once Yazzie had reviewed the protection order she no longer had probable cause, and therefore was not entitled to qualified immunity.  Yazzie appealed.

   The Tenth circuit made a point of saying that it didn't necessarily agree that probable cause had dissipated, but that it was willing to humor that for the sake of argument.  Even so, the Tenth Circuit has never imposed a duty to release a lawfully arrested prisoner when new evidence comes to light.  That's not to say that it should never be done, but only that there's no case law which clearly establishes an obligation to do so (the decision doesn't mention this, but Colorado even has a statute which expressly authorizes the police to un-arrest someone when there are no grounds to charge them with a crime.  As I recall, the procedure in NM was a bit more complicated).

   The district court's decision was reversed, Yazzie was granted qualified immunity.

Tuesday, December 17, 2013

Colorado Supreme Court People v. Roggow 11SC597

Decision here.

   Roggow was a landlord who was on friendly terms with his tenants.  They lived a few blocks away, frequently socialized, and sometimes he would pay the tenants kids to do yardwork.  The friendly relationship soured quickly when he hit on his tenants' eight-year old daughter and felt her up a couple times while they were at the hardware store buying shower parts for the rental house.

   Roggow was arrested, and eventually convicted of sexual assault on a minor by a person in a position of trust.  The relevant statute defines a person in a position of trust as follows:

One in a "position of trust" includes, but is not limited to, [1] any person
who is a parent or acting in the place of a parent and charged with any of
a parent's rights, duties, or responsibilities concerning a child, including a
guardian or someone otherwise responsible for the general supervision of
a child's welfare, or [2] a person who is charged with any duty or
responsibility for the health, education, welfare, or supervision of a child,
including foster care, child care, family care, or institutional care, either
independently or through another, no matter how brief, at the time of the
unlawful act.

   Pay special attention to "includes, but is not limited to."

   Roggow appealed, arguing that he wasn't in a position of trust because he wasn't specifically charged with any supervisory responsibility by his victims' parents.  The court of appeals agreed, and reversed his conviction.  The people appealed.

   The Colorado Supreme Court held that the above definition of a person in a position of trust is meant to be illustrative, not exclusive.  The court further held that being in a position of trust isn't so much a matter of being charged with authority over the child, but rather of being given special access to the child because of a relationship.  In this case, Roggow was a family friend who took the kids on a shopping trip without the parent's foreknowledge, and the parents weren't alarmed when they found out about it (at least not until they found out about that one little detail...).  The court held that this was enough evidence of a position of trust to support a conviction.

   Roggow's conviction was reinstated.  Creep.

Colorado Supreme Court People v. Zadran 13SA194

Decision here.

   Zadran was arrested after being investigated for selling drugs.  At the jail, he was interviewed by a narc after waiving Miranda.  Before and during the interview, the narc kept it friendly and said a lot of things like "I'm just telling you what I'm going to talk to you about. I think it would be in your best interest to talk to me. I think you are going to be interested in some of the things that I already know. You don't have to talk to me.  I'm going to advise you of your rights. I'm going to let you read this form, sign it, and you can talk to me. You don't have to."

   Zadran made some inculpatory statements.  The trial court ruled that the interview had been coerced, and suppressed all of it.  Yes, you read that last sentence correctly.  No, I don't get it either.  The court seemed to think that saying "I think it would be in your best interest" was an implied promise of leniency.

   Anyway, the people filed an interlocutory appeal.  In order for statements to be suppressed as involuntary, they have to be made at least partially as the result of coercive police conduct.  Seeing as how there was nothing in this case which bore so much as a distant familial resemblance to coercive police conduct, the Supreme Court overruled the suppression of Zadran's statements, and remanded the case back to the trial court for further proceedings.

Monday, December 16, 2013

Colorado Supreme Court People v. Ramadon 13SA22

Decision here.

   Colorado Springs PD was investigating a sex assualt, and Ramadan was one of the suspects.  Ramadan was born in Iraq, but after his family was killed (and after he acted as an interpreter and informant for the US military), he was brought to the US for his own safety.  That was years ago, now we fast forward to 2012.

   Ramadan is arrested on a warrant (related to this case), and brought to the station for a custodial interview.  He waived Miranda, and denied involvement in the assault.  His claim was that he found the victim outside and took her home, but at some point in the interrogation he admitted to being present in the apartment while his friends had sex with her after drugging her drink at a party.  He denied having any direct involvement in the rape, but eventually admitted that he took her home because his friends told him to since they would be recognized but he wouldn't.

   The detective's demeanor apparently changed as the interview went on, too.  Early on, he established rapport with Ramadan, but as the interrogation went on he became more and more accusatory.  Towards the end, he was suggesting that Ramadan would be deported to Iraq (where he would undoubtedly be killed) if he did not cooperate.

   The trial court suppressed the statements made after minute 42 of the taped interview.  The issue wasn't a Miranda violation, but rather that the statements from that point on were held to have been made involuntarily.  The question of voluntariness is whether or not coercive conduct on the part of the police played a significant role in inducing the statements.  "Coercive" meaning conduct that overbears the defendant's will.  The line falls well short of actual torture, and can include intimidation or other psychological manipulation.  Once the court has determined that some statements were coerced, they won't go to a whole lot of trouble to figure out which statements that followed were or were not the result of coercion.  Instead, they'll just suppress everything that followed the coercive conduct on the part of the police.  So don't be coercive.

   Some of the factors the courts can use to determine whether or not police conduct is coercive are the following:
(1) whether the defendant was in custody;
(2) whether the defendant was free to leave;
(3) whether the defendant was aware of the situation;
(4) whether the police read Miranda rights to the defendant;
(5) whether the defendant understood and waived Miranda rights;
(6) whether the defendant had an opportunity to confer with counsel or
anyone else prior to or during the interrogation;
(7) whether the statement was made during the interrogation or
volunteered later;
(8) whether the police threatened [the] defendant or promised anything
directly or impliedly;
(9) the method or style of the interrogation;
(10) the defendant's mental and physical condition just prior to the
(11) the length of the interrogation;
(12) the location of the interrogation; and
(13) the physical conditions of the location where the interrogation

   Oddly, the statement by the detective that the trial court took issue with was "I'm not here to try and get you in trouble."  The trial court held that this implied a false promise of leniency...?  I dunno.  Fortunately, we don't really need to know what the trial court was thinking, because the Supreme Court has decided that they were wrong.

   On the other hand, the Supreme Court did take issue with some of the interrogation.  Given Ramadon's uniquely terrifying prospects when it came to deportation, the court ruled that threatening him with that was enough to overbear his will- especially after reminding him of everything that would go along with a trip home.  So even though the trial court set the bar for coercion too low, the Supreme Court still ruled that the statements made after minute 54 of the interview needed to be suppressed.

   This case was an interlocutory appeal, and was sent back to the trial court for further proceedings.

Thursday, December 12, 2013

Colorado Court of Appeals People v. Clemens 11CA1460

Decision here.

   Police responded to a call of a fight.  They found a female and three male bystanders in the street.  Their investigation revealed that Clemens (who was no longer present) had been attacking the female with a golf club when one of the males tried to intervene.  Clemens also attacked that male, but then a second bystander kicked Clemens in the head.  Clemens ran away, and the third bystander called the police.

   The bystanders gave conflicting information about which house Clemens ran into, but the female said that she lived with Clemens at a house on the same block, and gave the police permission to enter the residence forcibly if need be.  Police made entry, and arrested Clemens.  He was charged with (and convicted of) second degree assault for attacking the female and third degree assault for attacking the first guy who came to her rescue.

   Clemens appealed his conviction on multiple grounds, but the one that matters for this blog is that he claimed that police lacked authority to enter his house without a warrant.  He claimed that the police should have made further inquiries into whether or not the female victim actually had standing in his house (apparently she didn't, although the court doesn't come right out and say that).

   The court held that the circumstances gave the officers an objectively reasonable basis for believing that the female had standing in Clemens' house.  They relied on factors like her claim that she lived there, the fact that she was found unclothed in the street near the house, that she claimed she had keys to the house (but that they were inside),and the fact that she gave permission to enter forcibly (which someone without standing would not feel entitled to do).  Clemens argues that all of this is at best ambiguous, since some of the bystanders thought he went into a different house.  

   Fortunately, the trial court and the Court of Appeals both recognized how stupid Clemens' argument is.  Especially considering that the police were dealing with an active crime scene involving assaults against multiple victims, this one inconsistency doesn't create the kind of ambiguity that Clemens imagines.  The police had every reason to believe that the female lived where she said she did, and therefore had standing to give consent for entry.  Since the court found that consent justified the entry, it didn't address whether or not exigent circumstances also justified the entry.

   Unfortunately, this case was reversed and sent back to the district court for a new trial.  The reversal of the lower court's decision had to do with a questionable jury selection, nothing that the police need to worry about.

Colorado Court of Appeals People v. Tunis 09CA0593

Decision here.

   The Colorado Court of Appeals has recognized the admissibility of Y-strand DNA (DNA which is passed down from father to son relatively unchanged, and so is less unique than DNA that both parents contribute to).  You can relax now, I know the suspense was killing you.