Monday, November 10, 2014

Colorado Court of Appeals People v. Frye 12CA0006

Decision here.

   This decision doesn't really give much information about what happened, it sort of skips to its conclusion and occasionally fills in bits of the story as it goes.  It sounds like Frye was a passenger on a traffic stop, gave the officer a fake name, and was arrested when he figured out who she really was and that she has a warrant.  At the jail, he asked her if she had any contraband (without Mirandizing her), she denied it, and then the jail found drugs hidden on her person.

   She appealed her conviction, arguing (among other things) that her statement to the officer that she didn't have contraband should have been suppressed.  And she was right, it should have been; it was a pretty obvious Miranda violation.  But the fact that the officer was allowed to testify to it was harmless error because the case against her was so overwhelmingly strong that her conviction couldn't be attributed to the error.

   Even so, if you're going to ask a prisoner if they have contraband, you should probably read them their rights first.  

   Also, she had several different kinds of drugs on her and was therefore convicted of multiple counts of introducing contraband into a jail.  The Court of Appeals dismissed all but one of those convictions, holding that introduction of contraband is a per-incident crime, not a per-item-of-contraband crime.

Wednesday, October 15, 2014

Colorado Supreme Court People v. Sotelo 14SA71

Decision here.

   Sotelo was the driver of a rental car, but not the renter of said car.  Her passenger also was not the renter, and neither of them were listed as authorized drivers (although her passenger would later claim to know the renter...).  They were stopped by the State Police for a traffic violation.

   The trooper contacted the rental car company, who asked him to tow the car.  He did so.  There were some giftwrapped packages in the car, which Sotelo claimed were presents that she was going to give her daughter.  Although Sotelo and her companion were allowed to leave, they were not allowed to take the packages because the trooper wanted to have a K9 do a "free air sniff" on them first (I don't know why he's trying to screw up K9 sniffs for the rest of us).  Ninety minutes later (!), a dog alerted on the packages.  Instead of letting Sotelo take them, he got a search warrant.

   They contained so much marijuana that it's even illegal in Colorado.

   At trial, Sotelo moved to suppress the marijuana, arguing that the search of the car and the search of the packages both violated her Fourth Amendment rights.  The people argued that since she was an unauthorized driver of the rental car, she did not have standing to challenge a search of the car (this issue remains undecided in Colorado, but the majority of courts agree with that proposition.  The reasoning behind it is that you can't vicariously invoke someone else's Fourth Amendment rights in order to suppress evidence that you don't yourself have a reasonable expectation of privacy in, and the reasonable expectation of privacy in a rental car rests with people who are authorized to possess it).  The court suppressed the evidence, and the people filed an interlocutory appeal.

   The Colorado Supreme Court declined to decide whether or not an unauthorized driver has standing to challenge the search of a car, but held that Sotelo did have a reasonable expectation of privacy in her property within the car (namely, the giftwrapped packages which she had made no bones about claiming as hers).  Accordingly, she had standing to challenge that search whether or not she could challenge the search of the car.  The lower court's suppression order was affirmed.

Wednesday, October 1, 2014

Colorado Court of Appeals People v. Valdez 11CA1659

Decision here.

   Not much to say about this one... Valdez was convicted of DUI and ADARP (driving while a habitual traffic offender) after being found passed out drunk behind the wheel of a car (which now had a dead battery).  The keys were in the ignition, his feet were near the pedals, and when the police contacted him he tried to start the car before they dragged him out of it.

   Valdez appealed, arguing that there was insufficient evidence to support his conviction.  Anyone care to guess how this one ends?

Colorado Supreme Court People v. Liggett 14SA88

Decision here.

   Liggett was being investigated for involvement in his mother's death.  He ran from the cops, crashed his car, ran on foot, was caught, and was arrested.  He was taken to the station where he was interviewed.  Early in the interview he asked if they could call a public defender over right now, and the investigator just answered "no."  Afterwards, LIggett signed a Miranda Waiver.

   The interview went on for a long time, with the investigators speaking to Liggett in a conversational tone and Liggett claiming that he's crazy and claiming that his mother committed suicide (his story was that he found her dead and concealed her death so he could keep using her credit cards).  Eventually he was charged with murder.

   The trial court held that Liggett had unequivocally invoked his right to counsel when asking if they could call a public defender.  The trial court also held that Liggett's statements were involuntary.  The people filed an interlocutory appeal.

   The Colorado Supreme Court rolled out the standard list of factors to determine the voluntariness of statements, and held that most of them suggested that Liggett's statements were involuntary, but that since the police didn't actually overbear Liggett's will the statements were actually voluntary.  The Court never addresses the potential Miranda violation, saying that the question here is whether the statements were voluntary.

   The order suppressing LIggett's statements was reversed.

Colorado Supreme Court People v. Vaughn 12SA70

Decision here.

   A police officer saw Vaughn make an illegal turn, and checked his license plate against the DMV database.  There was no DMV record.  The officer pulled Vaughn over.  During the traffic stop, Vaughn's license was found to be suspended (the officer found this information in the DMV's database, and then confirmed it by calling a DMV 24 hour hotline).

   Vaughn was arrested, and his car was towed.  While inventorying the car, the officer found crack cocaine packaged for distribution.  The traffic charges were now the least of Vaughn's problems.

   The trial court, however, suppressed the drug evidence.  Their "reasoning" was that since the officer wasn't required to arrest Vaughn for driving on a suspended license, and could have chosen to just issue him a summons, and since there wasn't probable cause to believe that the car contained contraband, the evidence was inadmissible.

   As is only reasonable when faced with a judge who apparently gets his legal expertise from TV cop dramas, the people filed an interlocutory appeal.  The Colorado Supreme Court reversed the suppression order.  The Court ruled that the initial traffic stop was justified by reasonable suspicion (the officer witnessed a traffic violation, and the officer found that there was no DMV record of the license plate.  Either one of these facts would have justified the stop independently).  The Court ruled that there was probable cause to arrest Vaughn for driving on a suspended license, so the arrest was valid.  Whether or not the officer was required to make an arrest is irrelevant, because the arrest was supported by probable cause.  And finally, the Court ruled that the inventory of Vaughn's car was conducted pursuant to a standardized department procedure.

   Vaughn also argued that the arrest was invalid because his license wasn't actually suspended (apparently there was a clerical error at the DMV).  The officer was entitled to good faith reliance on the DMV's records, though, so the information available to him at the time off the arrest supported probable cause.  Vaughn also argued that opening the locked glove box (using a key found in the car) exceeded the scope of an inventory search.  The Court held that the search of the locked glove box was valid because it was done in compliance with the department's procedures for inventorying vehicles.

   Suppression order reversed, case remanded to the trial court for further proceedings consistent with this ruling.

Tuesday, September 16, 2014

Colorado Court of Appeals Young v. Larimer County Sheriff's Office

Decision here.

   Not going to waste too much time on this because it's only a state court of appeals case.  Basically, Young was arrested for cultivating marijuana, his plants were seized (by cutting them off just above the root, which is fatal for plants), and he was acquitted based on a medical marijuana defense.  He sued the sheriff's department for killing his marijuana plants.

   The Colorado Court of Appeals upheld a dismissal of the lawsuit.  The court held that he couldn't sue under § 1983 because marijuana is contraband under federal law so the US Constitution doesn't recognized any property interest in it.  The court held that he couldn't sue for just compensation for the taking of property, since that particular state law addresses the taking of property for public or private use (which doesn't describe what the police do when they seize evidence).  And the court held that even the the Colorado constitution prohibits the police from destroying marijuana that they seize, there is no state statute which is equivalent to § 1983, so Young can't file a lawsuit against the police for violating the Colorado constitution.

Wednesday, September 10, 2014

Tenth Circuit US v. Tubens 13-4118

Decision here.

   Tubens was travelling on a Greyhound bus through Utah to Philadelphia.  When the bus made a scheduled rest stop, two cops obtained consent from the bus driver to run K9s on the luggage compartment.  They ran the dogs separately, without either one knowing during the initial search what the other had found, but both dogs alerted on the same suitcase (apparently, the dogs gave a strong alert without giving a final confirmation).

   The officers seized the suitcase, which belonged to Tubens.  They went onto the bus and asked (loudly enough that everyone could hear) for Tubens, but no one came forward.  Since Tubens wasn't identifying himself, they started checking everyone's ticket until they found him.  He claimed that he hadn't heard his name being called, and they asked him to speak to them outside of the bus.

   Tubens admitted that the suitcase belonged to him, and gave consent to search it.  Knowing that drug traffickers often move their stash between their bags to avoid detection, one of the officers asked Tubens if he had any carry-on luggage.  Tubens said that he did not.

   That officer got back onto the bus, and found a couple of items (a CD case and a paper bag) on the luggage rack directly above Tuben's seat.  As he was removing these items, another passenger told him that they had seen Tubens putting something else on the luggage rack and pushing it away from him.  The officer asked the passengers to collect their carry-on items and hold them in their laps.  While they were doing that, he went back out to speak to Tubens.

   Tubens admitted that the CD case and paper bag were his, and consented to their search.  No contraband was found in the suitcase, the CD case, or the paper bag.  The officer who had asked the other passengers to gather their property went back on the bus, and found one more bag which no one had claimed.  He asked if the bag belonged to anyone on the bus, and still no one claimed it.  He took it off the bus with him, and Tubens unequivocally denied that it belonged to him.

   Since no one was claiming it, the bus driver consented to a search of the bag.  Inside, the cops found meth and some prescription bottles with Tubens' name on them.  Tubens was finally arrested (the bus had been stopped for about an hour, but officers had only been talking to Tubens for about 20 minutes).

   Tubens moved to suppress the meth, arguing that the search had violated the Fourth Amendment.  The trial court disagreed, he was convicted by a jury, and then he appealed.

   The Tenth Circuit affirmed his conviction.  The court held that the detention was justified at its inception (simply running the dogs on the luggage compartment doesn't invoke the Fourth Amendment, but when the dogs alerted on the bag that established probable cause.  More than enough to justify a stop), and that it was reasonably related in scope to the circumstances which justified it.  Tubens apparently argued that all the fruitless searches should have been the end of the investigation, but the court held that his evasiveness (both in ignoring the officers when they were asking for him by name and in lying about whether or not he had carry-on luggage) justified the continued detention, as did the witness' account of him hiding a third carry on item.  So no Fourth Amendment violation precipitated the discovery of Tubens' bag.  Further, since Tubens voluntarily abandoned the bag (by claiming that it didn't belong to him), he did not have standing to challenge the warrantless search of the bag itself.

   So now Tubens will have some time to reflect on whatever poor life choices led him to this situation.

Friday, August 29, 2014

Colorado Court of Appeals People v. Martin 13CA0277

Decision here.

   Martin went into a convenience store bathroom and refused to come out (he was apparently in there for long enough to alarm the employees, who knocked on the door and tried to get him to leave).  Eventually, a store clerk called the police and asked them to remove Martin from the premises entirely.

   The cops knocked on the door and identified themselves, ordering Martin out.  He eventually responded that he was using the bathroom and would be out shortly.  When he did come out, he was reluctant to comply with the officers' instructions and told them he would do whatever he wanted because he was on private property.  He was agitated and nervous.

   The cops ordered him to face the wall and put his hands behind his back so they could pat him down for weapons.  During the pat down that followed, Martin struggled.  He and one of the officers were injured, and he was arrested.  He was charged with trespass, resisting arrest, and attempting to disarm a peace officer (the trespassing charge was eventually dismissed by the prosecution).

   Martin moved to suppress the evidence (his actions) as the fruits of an illegal detention and search.  The court denied his motion, and he was convicted.  He appealed.

   In affirming the denial of Martin's motion, the Colorado Court of Appeals reviewed the difference between conssensual contacts, investigative stops, and arrests and the different levels of proof required for each one.  The Court held that at the time of the encounter, police had reason to contact Martin both to check his welfare and based on reasonable suspicion that he was trespassing.  

   Regarding the search, the court decided not to decide whether or not the search was justified.  Instead, the court held that even if the search hadn't been justified, any evidence that followed it was admissible because Martin committed a new crime during the search by resisting arrest and attacking the officers.  Even if the entirety of the police conduct up to that point had violated the Fourth Amendment, evidence of Martin attacking the officers and resisting would be admissible.

   The denial of Martin's motion to suppress was affirmed, but this case was remanded to the trial court for other reasons (basically, there was some confusion about whether or not Martin should have been allowed to testify after the defense rested its case.  The Court of Appeals sent the case back to the trial court to decide whether or not it made the right decision after defining the test that it should use for that purpose.  If the trial court sticks to its guns, Martin's conviction stands.  If not, he gets a new trial).

Thursday, August 21, 2014

Tenth Circuit Al-Turki v. Robinson 13-1107

Decision here.

   This one isn't really worth a full summary, it's a pretty obvious decision.  Apparently, a prison nurse can't refuse to see a prisoner with an excruciating and potentially life threatening medical condition just because she doesn't feel like it.  Even if that condition later turns out to not be life threatening.  Who knew?

   Qualified immunity denied.

Colorado Court of Appeals People v. Curtis 12CA1528

Decision here.

   Curtis was being investigated for a pattern of sexually assaulting his two daughters (one with her consent, the other forcibly).  One of his daughters got pregnant by him twice (one of which was a stillbirth that he kept in a jar afterwards, and joked about.  The other was a live birth which DNA testing proved was his child).

   He was interviewed by police during this investigation (after being advised of and waiving his Miranda rights,even though he was not in custody), and then released.  A few days later, he was asked to come back to the station for a polygraph test.  He showed up a few minutes later, waived his rights again, was told that he could leave at any time, and that he didn't have to take the test.  He took the polygraph test.

   At a few points during the test, he made statements indicating that he had to be home because his wife was waiting for him, and that he had told the officers everything he knew.  Each time, they replied with something along the lines of saying that they thought he wanted to clear this up.  Each time, he kept talking.  When the interview was over, he was arrested.

   After being convicted, he appealed.  Most of his arguments aren't relevant to this blog, but he did argue that his statements were involuntary and that he had unambiguously invoked his right to remain silent.

   In order for a statement to be involuntary (for legal purposes), a defendant has to show that there was coercive police conduct (sufficient to overbear his will), and that this contributed significantly to the statement alleged to be involuntary.  In this case, there was no coercive police conduct.  He showed up voluntarily, the police spoke to him in conversational tones, no threats or promises were made, etc.

   In order to show that he unambiguously invoked his Miranda rights (either of them), he would have to show that he articulated it in a way that a reasonable police officer would understand to be an invocation of a specific right.  Saying something like "my wife is waiting for me" or "I've told you everything" doesn't even come close to meeting that standard.

   Curtis' conviction was affirmed.

Colorado Court of Appeals People v. Heywood 11CA2165

Decision here.

   Heywood was in an online chat room which was supposed to be reserved for people 18 and older.  He was exchanging sexually explicit messages with at least two other chat room users (both of whom were actually the same undercover cop).

   In one of these fake accounts, the cop claimed to be a 14 year old girl.  He made this claim after Heywood sent her an invitation to view a live feed of him masturbating.  When he made this claim, it took Heywood about five minutes to kill the feed (during which time he was telling her that she shouldn't be watching, and to hit him up when she's 18, but he was still masturbating).  In the other fake account, the cop claimed to be 22 and arranged to meet Heywood in person.  When they met, Heywood was arrested.

   He was arrested for violating 18-3-405.4(1)(b), which says:
An actor commits internet sexual exploitation
of a child if the actor knowingly importunes,
invites, or entices through communication via
a computer network . . . or instant message, a
person whom the actor knows or believes to be
under fifteen years of age and at least four
years younger than the actor, to . . . [o]bserve
the actor's intimate parts via a computer
network . . . or instant message.

   He appealed his conviction, arguing that the evidence was not sufficient to support his conviction.  Ruling that the uncontested evidence showed that he did not have any reason to think the undercover agent was only 14 when he extended the invitation, and therefore he did not knowingly invite/intice/whatever an underaged person to look at his junk, the court of appeals reversed the trial court and remanded the case for an entry of acquittal.

Thursday, August 7, 2014

Colorado Court of Appeals People v. Nozolino 12CA2308

Decision here.

   Nozolino was the subject of a grand jury investigation (involving threats against and murder of some people related to his divorce proceedings).  He tried to dissuade various people from cooperating with the grand jury by either givign them a preprinted letter which said that they had the right not to answer questions put to them by the grand jury, or by telling them that he suggested they didn't cooperate with the police.

   After he was convicted of witness tampering, he appealed.  The court of appeals held that the preprinted letters were witness tampering, but suggesting that someone not cooperate with the police is not (because talking to the police isn't the same thing as testifying).  The court also held that the law against tampering with witnesses does not violate Nozolino's right to free speech.

   Two of the four counts against him were affirmed (for the cards), the other two (for the police) were reversed.

Colorado Court of Appeals People v. Pifer 11CA2177

Decision here.

   Pifer was convicted of sexual assault on a child and enticement of a child after inviting some underage (9-12 YOA) girls into his apartment and then playfully chasing them around with a sheet, which he would throw over them and then touch them inappropriately.  He appealed.

   His (stupid) arguments were that he didn't touch the clothing over the girls' intimate parts because there was a sheet between his hand and their clothing, and that his invitation to the girls to come into his apartment wasn't sufficient to support a conviction because he didn't entice or persuade them.  The court didn't buy either argument and his conviction was upheld.

Tenth Circuit US v. Morales 13-3202

Decision here.

   Morales ran from a traffic stop and was caught a block later.  After a shell casing was found in his car, deputies retraced the path of the foot pursuit and found a gun and a cell phone in one of the yards.  They hadn't seen him drop either item, but the gun was not dusty, dirty, or wet.  The phone was placed in his property bag at the jail, and he took it when he was eventually released.

   Oh, yeah.  And he was a felon.

   Morales was charged with being a felon in possession of a firearm.  After being found guilty, he appealed (arguing that the evidence was insufficient).  The only element of that crime which he contested was that he had possessed said firearm.

   The evidence against him was circumstantial, but the Tenth held it sufficient for a conviction.

Tenth Circuit Leatherwood v. Welker 13-6152

Decision here.

   Leatherwood was on probation for rape, and his PO was notified (via a phone call from Leatherwood's ex-wife and an anonymous email to the district attorney) that he had violated the terms of his probation (by raping his new girlfriend, and by possessing guns).  His home was searched by DOC employees, and guns were found.

   Leatherwood sued the DOC employees who were involved in the search.  Qualified immunity was denied by the district court for some reason, and they appealed.  Given that Leatherwood was on probation, the DOC only needed to establish reasonable suspicion in order to search his home.  Leatherwood argued that the email was anonymous and therefore unreliable, and that his ex had motivation to lie about him.  Notwithstanding his arguments, the Tenth circuit held that the tips were sufficient to establish reasonable suspicion.  

   In light of that, the defendants didn't violate Leatherwood's rights.  Therefore, the denial of qualified immunity was reversed.

Tuesday, July 1, 2014

US Supreme Court Riley v. California 13-132

Decision here.

   This is actually two different cases which both made it up to the Supreme Court on a similar issue.  The facts were these:

   In Riley v. California: Riley (who is a blood) was stopped for driving with an expired license plate, and his license was also suspended.  The car was towed, and loaded handguns were found concealed under the hood.  Riley was arrested.  During a search incident to arrest, a smart phone was found in his pocket.  The arresting officer found entries (in the contact list or text messages, the record apparently wasn't all that clear on this) with the label "CK" in front of them.  Two hours later, a gangs detective went through the phone at the station.  This was basically a fishing expedition for evidence of anything, and evidence they found.  Based on some of the pictures and videos, Riley was identified as a gang member and implicated in a shooting a few weeks earlier, and charged with attempted murder.  He was sentenced to 15 to life, and he appealed.

   In US v. Wurie: Wurie was arrested for selling drugs out of his car.  While at the station, he was receiving multiple calls (on a flip phone) from a contact labeled "my house."  Police accessed the phone, saw that the home screen was a picture of a woman and a child, and looked at the contact information for "my house."  They used a reverse lookup to trace that number to an apartment.  When they went to the apartment, Wurie's name was on the mailbox, and through the window they saw a woman who looked like the picture on Wurie's phone.  They got a warrant for his apartment, where they found drugs, a gun, and money.  Wurie was convicted, but the First Circuit reversed his conviction.  The prosecution appealed.

   That brings us to the Supreme Court's decision.  In reasoning out its decision, the Court reviewed three landmark cases in search incident to arrest: Chimel, Robinson, and Gant.  In Chimel, the court recognized police authority to search the area under the immediate control of an arrestee (in this case, the police had far overstepped that boundary and they were getting slapped for it).  The rule was already pretty entrenched in common law, but the Court recognized it here and held that it was reasonable because it allows an officer to find an remove weapons that the prisoner may use to attack him, and because it allows an officer to find evidence that the prisoner may attempt to destroy.  In Robinson, the Court held that these two risks were inherent in all arrests without need for specific articulation.  In other words, it made it clear that search incident to arrest was justified by any custodial arrest, not just one where the police had some specific reason to believe that there were weapons or evidence to be found (in this case, the police searched a cigarette pack that was in an arrested traffic offender's pocket, and found drugs).  And in Gant, the Court narrowed the police's authority to search a vehicle incident to arrest.  The Court held that the reasoning set forth in Chimel only makes sense in the context of a vehicle when the arrestee is unsecured and within reaching distance of the passenger compartment, but it also created another exception.  Gant allows police to search a vehicle incident to arrest when there is reason to believe that evidence of the crime for which the person has been arrested will be found.

   The Court also discussed that the reasonableness of a warrantless search is determined by balancing the government interest in the immediacy of the search against the privacy interest at stake.  And this line of reasoning becomes a wooden stake in the heart of search incident to arrest as it relates to digital information.

   One thing the court makes very clear is that Chimel's reasoning doesn't make sense at all when we're talking about the digital contents of a cell phone.  The pictures, call log, videos, messages, and files that are stored in a cell phone can't be used as a weapon against a police officer.  In cases where those items are evidence, the arrestee isn't usually in a position to destroy them once you take away the phone.  Remote wiping exists, but it's normally something that a third party does or something that is built into the phone itself.  That's not the same thing as a prisoner himself destroying evidence the way that Chimel was talking about (and besides, law enforcement can address that by shutting off the phone, taking out the battery, or using a device like a Faraday bag to isolate it from receiving signals).

   Since the Chimel reasoning doesn't work here, we're left with balancing interests.  Given that there isn't (ordinarily) any real emergency when it comes to reviewing digital information, the government interest in warrantless searches here is slight.  On the other hand, the privacy concerns are staggering; a modern cell phone isn't so much a phone as it is a small computer.  It either contains or provides remote access to detailed information about almost every aspect of a person's private life.  The Court makes an argument that searching through someone's phone might even provide more information about their private affairs and daily activities than searching through their house would.

   In light of that, the Court has now ruled that search incident to arrest simply does not apply to data.  Digital information isn't immune from search, but you generally need a warrant.  Exigent circumstances can still justify a warrantless search (the court mentions hypotheticals like a child abduction case where the suspect's phone is believed to have information about the location of the victim, or text messages to someone who is getting ready to detonate a bomb).  

Sunday, June 29, 2014

Tenth Circuit Felders v. Malcom 12-4154

Decision here.

 Dear fellow officers,
   Please don't Gant the fellow officer rule.
   The Author of This Blog.

   So Felders was stopped for speeding in Utah while she was driving from California to Colorado.  The trooper (Bairett) who stopped her thought that she was hauling drugs.  Why, you ask?  Because she had an air freshener (like many 54 year old ladies), she didn't maintain eye contact (like 80-90% of people on traffic stops), and the kids in the car didn't have the details of the trip straight (like most 17 & 18 year olds).  Oh, and she had a Jesus bumper sticker or something.

   I'm not even kidding, Bairett thought all of that was PC to search the car.  But he didn't search it right away.  First, he asked for consent (denied).  Then, he called for a K9.  Before running the dog on the car, he explained what was going on to the handler (Malcom), and then had the occupants of the car get out.  When they did get out, he prevented them from closing the doors (and then he and Malcom pretended that they had left the doors open voluntarily).

   When Malcom ran the dog on the car, it jumped in and alerted on the beef jerky in the center console.  Then the two cops spent two hours searching the car and finding nothing.  Quite correctly, Felders sued.

   Both officers moved to dismiss the suit based on qualified immunity, and they were denied.  Malcom appealed.  And these are his ridiculous arguments:

   1- He argued that he was entitled to rely on Bairett's assertion that there was probable cause to search the vehicle, based on the collective knowledge doctrine (sometimes known as the fellow officer rule).

   2- He alternately argued that he independently had probable cause to search the vehicle because he could arrest Felders for obstruction for lying to Bairett in order to obstruct his drug investigation.

   3- He argued that the law was not clearly established that his conduct during the search violated Felders' rights.

   So first, let's talk about collective knowledge.  The courts have described that it works "vertically" and "horizontally."  Vertical collective knowledge is where an investigating officer informs another officer that there is probable cause to search/arrest/whatever and the second officer carries that out.  Horizontal collective knowledge is where several officers act independently in an investigation, then they can pool their knowledge and if putting all the pieces together gets them to PC they can act on that (this only works if they actually do communicate with each other, though).  

   Malcom couldn't rely on vertical collective knowledge because Bairett didn't have PC (the court is willing to humor the idea that he had reasonable suspicion, but I think they're being generous).  He couldn't even make a good faith reliance on Bairett's assertion of PC, because he knew too much about the case.  Or, as the court put it: "Accordingly, the good faith defense shields objectively reasonable good faith reliance on the statements of a fellow officer, but does not protect deliberate, reckless, or grossly negligent reliance on the flawed conclusions of a fellow officer."

   He also didn't have PC to arrest Felders for obstructing Bairett, because the facts communicated to him by Bairett wouldn't lead a reasonable officer to believe that she had committed that crime.

   The court also ruled that by facilitating the dog's entry into the car (even though Bairett was the one who actually kept the door open when the passengers wanted to close it), he violated Felders' clearly established rights.

   Qualified immunity denied.  

US Supreme Court Abramski v. US 12-1493

Decision here.

   Abramski was (is) a former cop (having been fired two years prior to the following events).  His uncle wanted to buy a gun, and Abramski offered to use his old police ID card to get a discount.  He bought the gun using his uncle's money and then gave his uncle the gun.  This after signing a form declaring that he wasn't doing exactly that.

   When the feds found out (because they were searching his house because he was a suspect in something else), he was charged with making a false statement on the form.  His conviction was appealed all the way to the supreme court.

   Abramski's argument was that his false statement was immaterial either because a) his uncle was eligible to own a gun anyway, or b) federal law doesn't prohibit someone from buying a gun on behalf someone else.  The Supreme court held that a) doesn't matter and b) yes, it does.  So Abramski's false statement was material and his conviction was upheld.

Colorado Supreme Court People v. Schaufele 13SA276

Decision here.

   Schaufele caused an accident and was transported to the hospital, where an investigating officer noted indicia of alcohol intoxication.  Since he was lapsing in and out of consciousness, express consent was not explained to him.  A blood draw was conducted without a warrant, and his BAC turned out to be .2something.

   The trial court did not find that there were exigent circumstances justifying a warrantless blood draw, and suppressed the BAC evidence.  The people appealed.  The Colorado Supreme Court, with frequent references to the SCOTUS case of Missouri v. McNeely, held that the trial court had made the correct decision.  Even though the express consent statute might have allowed for the blood draw (since Schaufele was unconscious), the express consent statute does not trump constitutional law.

   The people's argument centered around the time that it would have taken to get a warrant.  The court ruled that this is just one factor in determining whether or not there are exigent circumstances, and that the trial court had already correctly determined that the totality in this case weighed against that one factor.  

We now return to your regularly scheduled research project

   The next few hours (days?) will teach me to take a month off from blogging.  Some interesting stuff happened in the courts while I was on vacation!  So I'll be glued to my computer for a while.

   But the vacation was totally worth it.

Wednesday, May 28, 2014

Colorado Supreme Court People v. Begay 14SA18

Decision here.

   This case reads a little like it was written by a teacher who is getting impatient after having tried to explain the same concept thirty times.  For whatever reason, trial courts screw this one up A LOT.

   Anyway, someone known to the victims as "Rabbit" tried to strangle a couple of people at a park in Boulder.  Responding officers aired a description of Rabbit, who had left the area with someone named Bo.  Shortly afterwards, three plainclothes officers spotted a couple guys who matched the suspect description.

   One of the officers called out "Hey Rabbit," and then Rabbit approached him in a friendly manner and tried to hug him.  The officers identified themselves and instructed Rabbit to sit down.  While they were waiting for the victim to arrive for a show-up, they asked Rabbit (whose real name is Begay) why someone might have reported that he was involved in a strangulation.

   Begay claimed that Bo had been attacked and that he had intervened.  Bo denied that any altercation had happened.  And then the victimes identified Begay as their attacker.  He was subsequently arrested for assault.  He moved to suppress his statements, since he had not been read his Miranda rights at the time that he made them.

   The trial court suppressed Begay's admission that he had been involved in an altercation, and the people filed an interlocutory appeal.  The reasoning the trial court used was that Begay would not have felt free to leave, and that if he had tried to leave then the police would have stopped him.  Both of these lines of reasoning are incorrect.  

   What the officers would have done if Begay tried to leave is irrelevant, unless the officers told him what they would have done.  Custody for Miranda purposes is an objective question, so the subjective intent of the officers doesn't matter.  What matters is what they actually said and did.

   The other mistake the trial court made is a really common one, though.  The trial court applied Fourth Amendment reasoning to a Fifth Amendment question.

   The Miranda warning requirement is designed to protect a suspect's Fifth Amendment right against self incrimination.  Whenever a suspect is subjected to custodial interrogation, the police are required to warn him of his rights.  Everyone agrees that Begay was being interrogated (the police were asking questions to elicit incriminating information).  The question is whether or not he was in custody at the time.

   The trial court held that because he would not have felt free to leave (or otherwise terminate the encounter), he was in custody.  But it doesn't matter whether or not Begay would have believed that he was free to go; that's only important in determining whether or not someone is seized for Fourth Amendment purposes.  Miranda custody is determined by asking whether or not someone's freedom has been interfered with to the degree associated with formal arrest.  In this case, it had not.  Begay had been instructed to sit down, but he had not been searched, had not been handcuffed, had not been told he was under arrest, was not in a police dominated atmosphere, the police were speaking to him in friendly tones, he had only been detained for a few minutes, he wasn't taken to a different place by the police... the list goes on.  Although Begay was seized for Fourth Amendment purposes (he was clearly being detained), none of that says "under arrest."  He was not in custody for Miranda purposes.

   The Supreme Court reversed the suppression order.

Colorado Supreme Court People v. McIntyre 13SA235

Decision here.

   McIntyre was accused of fondling his ten year old niece.  After speaking to a detective (and denying the allegations), he agreed to meet with another deputy to take a lie detector test.  Prior to the administration of a lie detector test, the deputy talked to McIntyre about the way the test would be run (things like the need to tailor the questions to the allegations in a very specific way), the legal ramifications of taking or not taking the test, what McIntyre remembered about the incident, how much the test would cost and whether it would be admissible or not, etc, etc, etc.  Not all of what the deputy told McIntyre was accurate.  For example, he told him that the test would not be used in court unless McIntrye wanted it to be (when it actually would be per se inadmissible).  He told him that the test was very expensive, but that he wouldn't have to pay for it unless he was found guilty and they came after him for the fees (when in truth he wouldn't have to pay for the test under any circumstances).  

   The deputy also suggested that they weren't trying to ruin his life, and that they were interested in treatment and rehabilitation in cases where it's appropriate.  He made some statement that could be looked at as being promises of either leniency or immunity if taken out of context.  But all of this was peppered with copious reminders of McIntyre being free to leave, of the deputy's plan to discuss this interview with the detective, Miranda warnings, and explanations that the deputy couldn't make any legal promises.  Also, the deputy didn't actually promise leniency or immunity at any point.

   The lie detector test never happened.  McIntyre made some incriminating statements without it, wrote a letter of apology to his niece, and then made an appointment for another interview with the detective (but by then, he had a lawyer and didn't want to talk).

   The trial court suppressed McIntyre's incriminating statements, holding that they were involuntary because of some implied promises of immunity made by the deputy who was going to run the lie detector.  The people filed an interlocutory appeal, and the Colorado Supreme Court reversed the suppression order.  The Court held that under the totality of the circumstances, McIntyre's statements were voluntarily made and not the result of police coercion.

US Supreme Court Plumhoff v. Rickard 12-1117

Decision here.

   A police officer pulled Rickard over for having a broken headlight (there was also a suspicious head-sized indentation in his windshield).  Rickard had a passenger.  Rickard was acting nervous, didn't provide identification, and when he was told to get out of the car, he sped away.

   This began a high-speed chase which lasted five minutes and exceeded 100 mph.  During those five minutes, Rickard and the pursuing officers passed over a dozen other motorists.  Eventually, Rickard lost control of his car after being struck by one of the pursuing police cars.  His car was pinned by bumper-to-bumper contact with a police car, and officers approached on foot.  He kept accelerating and rocking his car to try to break free of the pin, and one of the officers fired three shots into the car.

   Rickard broke free of the pin, and started to drive away again.  Officers fired on the car 12 more times.  Rickard continued to flee, but crashed shortly afterwards.  Both Rickard and his passenger died from a combination of gunshot wounds and injuries from the car crash.  Rickard's family sued the police, arguing that they used excessive force.  After lower courts denied the officers qualified immunity, this case made it all the way up to the Supreme Court.

   There were actually two parts to the excessive force argument: the first was that the police violated the Fourth Amendment by using deadly force to end the pursuit.  The second was that even if the police could reasonably have used deadly force to end the pursuit, firing on the car 15 times was excessive.

   The Supreme Court held than in light of Rickard's extreme reckless driving during the pursuit, he posed a grave risk to public safety.  At the time that the shots were fired, it was apparent that even though he had crashed Rickard was intent on continuing his flight.  A reasonable officer would have concluded that if allowed to flee he would continue to endanger the lives of others.  The police acted reasonably when they used deadly force to terminate the pursuit.  Regarding the firing of 15 shots, the court said "It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended."  In this case, all of the shots were fired within about a ten second time frame.  After the last shots were fired, Rickard still fled a short distance before crashing.  The threat had not ended.

   The Court held that the police did not violate Rickard's Fourth Amendment rights by using deadly force to end the pursuit.  The Court chose not to express an opinion on whether or not his passenger's rights were violated (the lower courts have gone both ways in similar cases), but that's not at issue in this case; Fourth Amendment rights are personal rights which can not be vicariously asserted.  Rickard's estate can't sue on the basis of Rickard's passenger's rights, and even if the force used against her were unreasonable this does nothing at all to enhance Rickard's rights or render the force used against him unreasonable.

   In addition to ruling that the police did not violate Rickard's rights, the court ruled that even if they had the officers would be entitled to qualified immunity because there was no case law clearly establishing that they couldn't use deadly force to end a pursuit. 

US Supreme Court Wood v. Moss 13-115

Decision here.

   During a campaign trip, President Bush and his motorcade were driving down a particular street in Jacksonville, Oregon.  There were demonstrators on both sides of the street (pro-Bush on one side, anti-Bush on the other).  Bush made an unexpected decision to have dinner at a restaurant with a patio.

   With the change in plans, the anti-Bush demonstrators were now within weapons range of Bush with an unobstructed line of sight.  The pro-Bush demonstrators were not.  The anti-Bush demonstrators were required to move (twice) for security reasons.  When the motorcade eventually continued, it passed by the location where all the demonstrators originally had been, but now that they had been moved the anti-Bush demonstrators were a couple blocks away from the motorcade.

   They sued the secret service agents, alleging violation of their First Amendment rights.  The agents tried to claim qualified immunity, but the Ninth Circuit wasn't having it.  The agents appealed.

   The First Amendment doesn't allow the government to interfere with someone's speech because the government doesn't like what that person has to say.  But it also doesn't guarantee people the right to publicize their message wherever, whenever, and however they wish.  In a case like this, where there is a legitimate security reason for moving a group of protesters, the government is allowed to do so.  The Ninth Circuit had denied qualified immunity because only the protesters were moved (while the Bush supporters were allowed to remain where they were and eventually had better access to the president because of that).  But there is no case law which establishes any responsibility on the part of the secret service to keep groups with opposing views equidistant from the president in the case of sudden changes of plans.  There's also no case law which establishes any responsibility of the government to restrict a second group's speech absent a security concern just because a first group's speech has already been restricted because of a security concern.  And in this case, there was never any valid security reason to move the pro-Bush demonstrators.

   The Supreme Court held that the agents were entitle to qualified immunity, reversing the judgment of the Ninth Circuit.

Tuesday, May 20, 2014

Colorado Supreme Court People v. Webb 14SA37

Decision here.

   Webb's adult son lived with her while he was on parole.  During a home visit from the parole officer and a cop, spoons with meth residue were found under his bed and he was determined to be under the influence of meth (as was a guest, who was in possession of syringes that tested positive for meth).  So the cops seized the paraphernalia and then got a warrant to search the house for more.

   At the beginning of the next search, they told Webb that she could leave if they wanted.  She chose to leave, and wanted to take her purse with her.  An officer went into her unlocked bedroom with her to retrieve the purse, and told her they were going to have to search it before she left with it.  A search of the purse revealed straws with meth residue.  More meth paraphernalia (with residue) was found elsewhere in her room.

   Webb was charged with possession of methamphetamine and drug paraphernalia.  She moved to suppress the evidence found in her bedroom.  The trial court accepted that the search of the bedroom was reasonable, but held that because she had a heightened expectation of privacy in her purse the search of the purse was unreasonable.  The People filed an interlocutory appeal.

   The Colorado Supreme Court held that the search of the purse was reasonable, but they used a couple of different rationales to get there.  On one hand, they pointed out that once a warrant has been obtained, the scope of a search is defined by the scope of the warrant rather than by any person's expectation of privacy.

   The court also discussed the actual parameters of a search of a house pursuant to a warrant (this is the part that threw me, I thought the other explanation was much easier to grasp).  Basically, if the police have a warrant for a house then they can search any areas of the house which the suspect (defined as the person whose actions gave rise to the probable cause justifying the search) has the ability to access.  Since Webb's bedroom was not locked, her son would have had the ability to access it (to include her purse).  And since the purse was capable of hiding the contraband named in the warrant, the search of the purse was valid.

   The suppression order was reversed and the case was sent back to the trial court for further proceedings.

Monday, May 19, 2014

Tenth Circuit US v. Garcia 13-2155

Decision here.

   Garcia was a passenger in a car that Ofc. Devos was towing.  He was towing because the windshield was too badly cracked for it to be safely driven (hence the traffic stop in the first place), and the driver was under arrest for driving on a suspended license (and for giving Devos a fake name, although the name he gave also came back to a suspended license).

   Garcia and Devos knew each other.  Devos knew that Garcia was a drug user with a conviction for armed robbery.  Two weeks ago, Devos had chased Garcia down an alley on foot while trying to arrest him for a warrant.  At the end of that chase, Garcia had turned to confront Devos with his fists up, and Devos had tased Garcia.

   The current traffic stop was taking place during the night on a road in the middle of nowhere, and there was no other officer available to assist Devos.  In light of all of the above, he decided to search Garcia before turning his back on him for the inventory.  During the search, he found a handgun magazine.  He handcuffed Garcia, had him sit on the curb, and then released him after the inventory.  Later, he arrested him for being a felon in possession of a weapon (based on the magazine).

   Garcia moved to suppress, arguing that the pat down was unjustified.  The Tenth Circuit held that under the totality of the circumstances, Devos had reason to believe that Garcia was dangerous and that he had the ability (based on his criminal history) to procure a weapons.  So the search was upheld.

   There's a dissenting opinion that would have suppressed the search, holding that Devos knew Garcia was dangerous but didn't have reason to believe that he was armed.  The majority opinion criticizes the dissent for isolating the
"armed" and "dangerous" prongs of the test from each other, and for ignoring the effect that one prong can have on the other (meaning that an officer's knowledge that someone is dangerous may suggest to them that that person is armed, or vice versa).  

   From a law enforcement perspective, it's obvious that Devos did the right thing.  I'm not interested in turning my back on someone who tried to fight me a couple weeks ago without first searching and cuffing him, either.  But the fact that this opinion had a dissent does show the importance of being able to properly explain our actions, and also shows that even something as entrenched as a Terry search could get screwed up tomorrow.

Tuesday, May 6, 2014

US Supreme Court Tolan v. Cotton 13-551

Decision here.

   Tolan and his cousin were driving to Tolan's house in a black Nissan.  As they got out of the car, an officer cleared the plate through NCIC.  Or he thought he did... he actually had a typo in the plate number.

   The incorrect plate number came back to a stolen vehicle of the same make and model.  And what happened next was a MESS.  Tolan and his cousin were given orders at gunpoint to get on the ground, more officers responded to assist, Tolan's parents came out of the house to voice their objection (calling out to the officers with hands up, saying that Tolan was their son, that was their car, the car wasn't stolen, etc..).  Basically a high-risk stop gone bad because of a lot of interference and limited compliance.

   Tolan's mother didn't comply with instructions to stand by the garage door, so Sgt. Cotton physically moved her out of the way.  There's conflicting testimony as to how much force he actually used, but the worst version says that he shoved her against the door hard enough to leave bruises.  Then Tolan got to his feet (or to his knees, depending on who you believe) while telling Cotton "get your fucking hands off my mom."

   Then Cotton shot Tolan.  Because we don't do less lethal force in Texas?  I don't know, but Tolan survived (with a life-altering injury).  Cotton was indicted for (and later acquitted of) aggravated assault by a public servant.  Tolan & family sued.

   The trial court and the Fifth circuit each held that Cotton was entitled to qualified immunity.  The trial court held that the force used was reasonable, and the Fifth held that whether or not the force used was reasonable, Cotton did not violate any of Tolan's clearly established rights.  I haven't read those decisions, so I can't speak to how they arrived at those conclusions.

   The US Supreme Court held that the Fifth circuit did not view the facts in the light most favorable to Tolan, the plaintiff (which the courts are required to do when deciding whether or not to grant qualified immunity).  Expressing no opinion of the reasonableness of Cotton's actions, SCOTUS simply vacated the decision of the lower court and sent it back for them to decide again using the correct standard.

Colorado Supreme Court People v. Knedler 13SA292

Decision here.

   Knedler sometimes lived under a bridge with two other people, perhaps because the money that might have otherwise paid for a home was going towards alcohol (by his own statements, he drank about a case plus a pint of alcohol every day).  One day Knedler beat the crap out of his, uh... roommates with a stick.  He was arrested later, whilst drinking at a hair salon where he also lives sometimes.

   Couldn't have been a very upscale salon...

   Anyway, Knedler agreed to speak to investigators, but didn't want to talk in the police car.  The took him to headquarters and advised him of his rights.  He initialed every line of the waiver, said that he knew his rights, and went on to confess.  After his interrogation, the jail nurse gave him a breath test which registered a BAC of .284.  However, she noted that he was alert and oriented.

   At trial, Knedler moved to suppress his confession.  His argument was that the Miranda waiver was invalid because of his extremely high BAC.  The trial court agreed and suppressed the confession, and the people filed an interlocutory appeal.

   The Colorado Supreme Court reversed, holding that simply having a high BAC doesn't render a waiver invalid.  The question is whether a waiver is knowing, intelligent, and voluntary (knowing and intelligent mean that the waiver is made with full understanding of the right in question and of the consequences of abandoning it.  Voluntary means that the waiver is free from governmental coercion).  These questions require the court to focus not on what a breathalyzer says, but on what the facts show regarding the defendant's cognitive ability.  Someone who is lucid and rational can validly waive their rights no matter what their actual BAC is.

   The court described some of the factors used to weigh the ability of an intoxicated person to waive his rights as: 1- whether the defendant was oriented to his or her surroundings and situation; 2- whether the defendant's answers were the responsive product of a rational thought process; 3- whether the defendant was able to appreciate the seriousness of his or her situation and the possibility of incarceration; 4- whether the defendant had the foresight to attempt to deceive the police to avoid prosecution; 5- whether the defendant expressed remorse for his or her actions; and 6- whether the defendant expressly stated that he or she understood his or her rights.

   The court also listed the following factors which are used more generally to decide whether a defendant's waiver is knowing and intelligent: 1- the length of time between the initial Miranda advisement and the interrogation; 2- whether the defendant or the interrogating officer initiated the interview; 3- whether and to what extent the interrogating officer reminded the defendant of his or her rights before the interrogation; 4- the clarity and form of the defendant's acknowledgment and waiver; 5- the defendant's background and experience with the criminal justice system; and 6- any language barriers and the defendant's age, experience, education, background, and intelligence.

   Most of those factors weighed heavily in the prosecution's favor, and the court recognized (as it has repeatedly) that there's a wide individual variation in people's ability to function after heavy drinking.  Knedler's waiver was held to be valid, and this case was send back to the trial court.

Saturday, April 26, 2014

Colorado Court of Appeals People v. Richardson 10CA2488

Decision here.

   Richardson (hereinafter referred to as creepy MF) had a penchant for going down on his great-grand-nephew.  Who was 11.  Gross.

   Anyway, after the great-grand-nephew let his parents know what was going on, they went to the police.  The police staged a pretext phone call, where the great-grand-nephew confronted Richardson (AKA creepy MF) while they recorded the conversation.  Richardson implicitly acknowledged the accusations, and shortly afterwards found himself under arrest.  After signing a Miranda waiver, he admitted to... you know.  

   Richardson was convicted, and appealed.  His arguments were:

1- The phone call should have been suppressed.  Although he acknowledged that the police can record phone calls if one party consents, and although he acknowledged that his great-grand-nephew consented, he argued that his great-grand-nephew was a juvenile and therefore could not validly consent without a parent's presence or written permission.  Much like is the case in Colorado with custodial interrogation of a juvenile.  Unfortunately for creepy MF (but fortunately for justice and everyone else), the court recognized that consenting to the recording of a phone call for the purpose of arresting the pedophile SOB who victimized you is in no way similar to consenting to an interrogation for the purpose of getting your own ass in trouble.  So the recorded phone call was admissible in court.

2- He attempted to invoke his Miranda rights prior to signing the waiver.  And by "attempted to invoke," he means that he said "I'm not gonna spill my guts or anything."  Obviously, this is not an unequivocal invocation of ones right to counsel or to remain silent.  Hell, this isn't even a hint at either of those.  And so this argument also fails.

   Creepy MF's conviction was affirmed.

Friday, April 25, 2014

Colorado Court of Appeals People v. Dutton 11CA1456

Decision here.

   Dutton was an HTO who drove recklessly to avoid a traffic stop whilst driving in a car that he may or may not have owned (he was in the middle of a civil dispute over it).  Later, he would speak via phone to the officer who tried stop him and say some things that he would live to regret at the trial.  That same officer also picked Dutton out of a photo lineup as the driver.

   Whoever heard of showing a cop a photo lineup?  

   Anyway, Dutton appealed his conviction.  He argued that testimony about the phone call should not have been admitted as evidence because it was insufficiently substantiated as coming from him.  The rule in these things is that when a caller identifies themselves as a certain person, and this identification is supported by circumstantial evidence (such as the timing of the call, or the caller knowing things about the case that the suspect would know), then that's good enough to get the phone call admitted at trial and then the jury can decide if they think the call was legit.  So the call was admitted.

   Dutton also argued that the evidence wasn't enough to show that he was driving recklessly.  The court of appeals ruled that even though the pursuit only lasted a couple of blocks, the multiple traffic violations and the fact that he almost hit a pedestrian were enough to support the elements of reckless driving.  Anyone surprised by this?

   Convictions affirmed.

US Supreme Court Prado Navarette v. California 12-9490

Decision here.

   Lorenzo Prado Navarette & Jose Prado Navarette were driving down the highway when an anonymous RP called and said that they had run her off the road.  She gave their location, vehicle description, direction of travel, and license plate.  15 minutes later, a highway patrolman found them a few miles down the road.  He made a u-turn and pulled them over five minutes after that.  The police never observed any bad driving.

   When the officers approached the truck, they smelled marijuana.  There was 30 lbs in the truck bed.  After being convicted of transporting marijuana, the Prado Navarettes appealed.

   They argued that the stop was made without reasonable suspicion because the RP was anonymous.  The Supreme Court compared this case to Florida v. JL and Alabama v. White, both of which involved anonymous RPs.  In JL, someone called to say that a kid standing at a bus stop had a gun.  JL was contacted and searched, and had a gun.  The court would rule that the stop was made without reasonable suspicion because there was no reason to believe the anonymous tip was reliable.  In White, an anonymous RP called and said that a woman was going to drive a brown Plymouth station wagon with a broken taillight from a particular apartment to a particular motel, and that she would be carrying cocaine.  She was stopped, searched, and had cocaine.  The court would rule that this tip was more reliable because the RP obviously had a special familiarity with the woman's affairs, implying that they had access to information about her illegal activities.

   In this case, the court ruled that because the RP called in and reported something which they had apparently just witnessed, and gave an accurate description of the suspect vehicle which was found just down the road shortly afterwards, and called in on a recorded 911 line (which also means that the police would have had access to her phone number and approximate location), this tip was sufficiently reliable to establish reasonable suspicion.  The court acknowledged that this was a close call (in fact, four out of nine Justices disagreed with it and would have suppressed the evidence), but the stop was held to be valid.  The Prado Navarettes' convictions were affirmed.

Thursday, April 24, 2014

Tenth Circuit US v. Romero 13-2019

Decision here.

   Romero and a bunch of his friends met a couple of other guys (one of whom is Mr. Friday, the victim in this case) at a Sonic Drive in one night.  They apparently hit it off, because they spent the night driving around, getting drunk at casinos, nearly getting in gunfights, and generally making asses of themselves.  Eventually, Romero dropped off Mr. Friday's friend at home, and then he and his friends (and Mr. Friday) continued their night of drunkenness and good will towards all.

   A few hours later, Mr. Friday was dead of a couple of shotgun blasts to the head.  He was found a couple miles from where Mr. Friday's friend was dropped off.  After talking to Mr. Friday's friend and to the casino security guards, the cops had enough information to identify Romero's car as the one involved.  They got a search warrant for the car, to search for firearms, ammo, blood, tissue, and other murder evidence.  Then they showed up at Romero's place to serve it.

   There are two residences on Romero's lot, and his car was parked between them.  They went to the one in back and knocked on the door.  They were planning on conducting a protective sweep.  They knocked on the door, and Romero's stepfather told them Romero wasn't there.  He gave them permission to do their sweep.  While they were searching the house, they went into Romero's bedroom (where he was sleeping), and found a shotgun along with the hat that he was seen wearing in surveillance footage.  They woke him up, and he agreed to talk to them outside.

   While sitting in the front seat of one of their cars, Romero confessed to killing Mr. Friday.  He admitted that the shotgun in his room was the one he had used, and gave his own consent to a search of his room.  He was convicted at trial of second degree murder after unsuccessfully moving for the suppression of all the evidence from the search of the car and his house.  He appealed.

   Romero argued that the search warrant did not establish probable cause to believe that there was evidence of the murder in his car.  Given that the car was the last place that Friday was seen alive, that Friday's friend knew there was a long gun of some sort in the car, and that the autopsy and crime scene investigation had determined that Friday was killed with a close-range shotgun blast and had been killed somewhere other than where his body was found, the court held that not only was there probable cause to believe that the car held evidence, but the police would have been remiss if they did not seek to search it.

   Romero also argued that the search of his room was unreasonable, since his stepfather didn't have authority to give that consent.  Romero's door did have a lock on it, but it wasn't a lock which was readily apparent from outside the room and it wasn't locked when the cops tried the door.

   As far as third party consent goes, consent is valid if a person either has actual authority to consent to a search or if they have apparent authority.  Actual authority is established by showing that the person either had mutual use of the property by virtue of joint access, or that the person had control over the property for most purposes.  Apparent authority is established by showing that the facts known to the police at the time of the search would lead them to reasonably believe that there was actual authority.

   Under existing Tenth circuit precedent, when a child lives with a parent there is a presumption that the parent has authority to consent to a search of the entire home (it's not absolute, of course.  But the presumption is there).  This presumption also extends to step-children, and although Romero's door did have a lock that might have rebutted the presumption, the cops didn't know that until later.

   The search warrant was held to be valid, as was the step-father's consent to search the house (including Romero's room), and Romero's conviction was affirmed.

Tenth Circuit US v. Kamahele 12-4003

Decision here.

   Technically, the one I'm interested in is US v. Kepa Maumau, 12-4007.  But this decision has five different cases lumped into one decision.  Most of it is really boring droning on about RICO, VICAR, jury instructions, prosecutorial misconduct, and other stuff that doesn't really make a lot of difference on the street.  I hate reading cases like this one.

   But buried under all that is a few paragraphs about a photo array.  Kepa Maumau was identified as one of the suspects in a series of robberies after being identified in a photo lineup with six pictures.  Maumau argued that the lineup was unduly suggestive, and both the trial court and the Tenth Circuit found that it was not.  The Tenth Circuit went on to say that even if it had been, reversal would not have been warranted because of the reliability of the victims' identifications of Maumau.

   The two important questions regarding photo lineups are 1- Whether it was unduly suggestive (which is defined by whether or not it creates a substantial likelihood of misidentification), and 2- if the lineup is unduly suggestive, whether or not an identification is still reliable in view of the totality of the circumstances.

   The first question (undue suggestiveness) is where the court addresses things like the number of photographs in the array, the details of the photographs, and the way that the police present the lineup.  Regarding numbers, there's no hard and fast rule (although six is a small enough number to weigh slightly in favor of suggestiveness without being per se unconstitutional).  The manner of presentation is pretty simple: let the witness know that they don't have to make an identification, and don't do anything to direct the witness' attention to the suspect's photograph.  

   The second question is the really interesting one.  Factors that the court considers when determining the reliability of an identification (in spite of the suggestiveness of a lineup) include: the opportunity of the witness to view the suspect during the crime, the witness' level of attention during the crime, the accuracy of the witness' prior description of the suspect, the level of certainty the witness demonstrated when making the identification, and the time lapse between the crime and the identification.  This isn't an exhaustive list... as I understand it, the inherent reliability of some identifications is the reason that we don't need to show a six pack to someone who is identifying a personal acquaintance as a suspect, or why doing a show-up with a suspect apprehended just down the street is permissible.

   Anyway, in this case the identifications were held to be reliable (and the lineup wasn't unduly suggestive anyway).  And all of the other boring crap also worked out in the prosecution's favor.  All convictions affirmed.

Tenth Circuit US v. Pulliam 13-1026

Decision here.

   I'm a little behind, so I'm going to try to be brief with a lot of these.  Especially stuff like this decision which doesn't really change anything.

   Pulliam was charged federally with being a felon in possession of a firearm after a search of his house (with a warrant) led to the discovery of said firearm.  He moved to suppress the search, making a handful of stupid arguments.  He argued that there was no PC in the affidavit because the informant the information came from was untested (the informant in question was identified to the police, was facing his own charges, and was giving up his fellow burglars in return for lenience.  He had already led police to stolen property in other places).  The court disagreed.  He argued that the search was unreasonable because the police didn't give him all the attachments to the warrant.  The court recognized that it probably would have been better for the police to do that, but that this doesn't make the search unreasonable.  After all, it's not like Pulliam would have been entitled to monitor the search to ensure compliance with the warrant... contesting a search is something to be done after the fact in court.  And he argued that the items to be seized were not particular enough, since it included "any and all firearms."  The court held that since Pulliam was a felon, and therefore any firearm would be contraband for him, this description was sufficiently particular.

   Anyway, the search was good and Pulliam's conviction was upheld.

Sunday, March 30, 2014

Colorado Court of Appeals People v. Cardenas 11CA1954

Decision here.

   Cardenas was pimping a 17 year old and an 18 year old.  He got caught when the 18 year old got arrested, and was convicted of pimping an adult, pimping a child, pandering a child, inducing child prostitution, and trafficking in children.

   On appeal, his conviction for trafficking in children was reversed, because that statute prohibits the sale or lease of a child, but not of a child's services. Given that he wasn't selling the girl into slavery, the statute doesn't quite apply.  His other convictions were affirmed.

Thursday, March 13, 2014

Tenth Circuit Booker v. Gomez 12-1496

Decision here.

   This a qualified immunity case, so it's important to note that the court is currently resolving all factual disputes in favor of the plaintiff (Mr. Booker's estate).  It's possible that should this case eventually go to trial, the court will find that the below facts are not actually true.  On the other hand, there is video evidence in this case, and even the version of events that the defendants (that is, the officers involved) put forward doesn't look good for them.  This is ugly.

   Booker, a 56 year old man, was arrested for an FTA warrant on a drug charge.  During the booking process, he was apparently uncooperative (the defendants claim that he was cussing at them, but this fact is in dispute).  At some point, he walked away from the officer who was booking him.  She tried to grab his arm, he took a swing on her, and he missed.

   The next part is no surprise: a lot of detention officers took Booker to the ground.  So far, so good.  But during the struggle to restrain him, there were officers controlling each hand, an officer controlling his legs with nunchakus, an officer kneeling on his back (he would later estimate that 75% of his weight was on Booker, which would be more than what Booker weighs), and an officer applying a carotid neck restraint.  That officer would maintain the carotid neck restraint for about two and a half minutes, which is WAY outside of what his training guidelines allow for that technique.  

   The officers were able to handcuff Booker, but continued to maintain the neck restraint, the pressure on his back, and the control of his legs even after he was handcuffed.  While he was handcuffed and at the bottom of a pile of officers, they even called for a taser.  Booker was given an 8 second drive stun, and then carried limply and unconsciously to a cell.  

   He was unresponsive, so they checked on him about 20 seconds after leaving him in the cell.  He was dead.

   Unsurprisingly, his estate sued.  The officers tried to claim qualified immunity, which was denied.  They appealed, and now the Tenth circuit has spoken.

   Since Booker was a pre-trial detainee (already in the jail), the use of force is governed by the 14th Amendment (as a due process violation) rather than the 4th (as a seizure).  It doesn't matter that much, because the facts alleged would be excessive force under either standard, but they are different standards.  Under 4th amendment analysis, the court would consider the objective reasonableness of the force used.  Under 14th amendment analysis, the court considers: 1- the relationship between the force used and the need presented, 2- the extent of injury inflicted, and 3- the motives of the officer (that last one is not a factor in 4th amendment cases).

   Given that Booker was handcuffed, on his stomach, and not resisting (really, unable to meaningfully resist), the court held that the force used was disproportionate to the need for force.  The extend of injury in this case is death.  And the motives of the officers... for due process violations, the standard is force inspired by unwise, excessive zeal amounting to an abuse of official power that shocks the conscience, or by malice rather than mere carelessness.  So the court looks at things like holding the carotid hold for two and a half minutes, applying an 8 second drive stun to a handcuffed prisoner, and putting more weight on Booker's back than what Booker weighs while he's laying prone and completely restrained.  In light of all that, a reasonable jury could find that the defendants acted with the requisite mental state for a due process violation.

   So a constitutional violation has been shown, but in order to overcome qualified immunity the plaintiffs also have to show that the law was clearly established.  The defendants argue that since most excessive force case law relates to the 4th rather than the 14th amendment, the law was not clearly established.  The court held that since 4th amendment case law is informative as it relates to the relationship between force used and the need presented, and since the result is the same under either standard, the law here was clearly established.  Qualified immunity was denied.

   Qualified immunity was also denied (for similar reasons) on claims of supervisory liability and denial of medical care.

   This next part is important: The defendants also argued that each officer should be entitled to or denied qualified immunity separately, rather than collectively.  After all, they each used different force and some of them may not have actually used excessive force (for example, the ones who just applied the handcuffs weren't necessarily doing anything excessive.  This guy did just take a swing on one of them, and handcuffing him was entirely appropriate).  But the court was not having it.

   There are two different approaches that the court took to resolve this problem.  First, the court noted that sometimes it is appropriate to analyze the conduct of different officers together.  They were all working together towards the same objective, each participating in the overall conduct.  If the overall use of force was excessive, they each participated in and contributed to that even if some of them played a bigger part than others.

   Second (and, in my opinion, much more importantly): a law enforcement official who fails to intervene to prevent another law enforcement official’s use of excessive force may be liable under § 1983.  So even if some of the officers didn't do anything excessive themselves while restraining Booker, they also didn't do anything to stop the obviously excessive force going on right in front of them.  Their inaction makes them liable even if the actions they did take wouldn't.

Tuesday, March 11, 2014

Tenth Circuit US v. Fonseca 12-3325

Decision here.

   Fonseca and his girlfriend burglarized a gun shop, then drove across state lines to sell the guns for money to pay their bills.  Unsurprisingly, a lot of the money actually went to hotel rooms and drugs during their weird little vacation, which led to an argument because Fonseca didn't think his girlfriend was being responsible about the whole thing.

   So Fonseca took a bag with the last 8 guns that they had (out of 36) and set off walking on his own.  His girlfriend found a couple other people to get high with, and eventually the three of them went to go pick up Fonseca when he called to ask for a ride.

   By then, a cop was already watching Fonseca.  It was late at night and Fonseca had been walking around in an area with nothing but a lot of closed businesses, and where there had been a rash of auto burglaries.  The cop had been standing around in the parking lot, watching for anyone suspicious.  He called out to Fonseca and asked if he could talk to him.  During the stop, the officer would repeatedly ask for consent to search Fonseca, but Fonseca never agreed.

   Fonseca (who was on the phone with his girlfriend) put the bag down, walked away from it, and then spoke to the officer.  He was very emphatic on the phone about getting his girlfriend to come pick him up, and was giving sketchy answers to the officer's questions.  Fonseca's girlfriend (and the two she was with) showed up right around the time that a backup officer did, and stopped after Fonseca told her on the phone that if she sped off she'd just get pulled over.

   At Fonseca's direction, she surreptitiously picked up the bag of guns and put it in the car (one of the backup officers saw her do it, but didn't say anything about it until later because he was an FTO and his trainee had his hands full dealing with the other two suspects.  The officer who made the stop didn't see her do it, but did notice that the bag had disappeared).  When she was initially asked about it, she gave the officers a different bag (which fooled everyone except the FTO, who still didn't say anything).  

   After Fonseca had been detained for about 20 minutes, the officers found that there was a warrant for his arrest.  It was another 10 minutes before the warrant was confirmed and Fonseca was arrested.  Afterwards, the FTO finally spoke up about the bag, the girlfriend admitted to lying, and then gave consent to search the car.  The cops did search the car, and found the guns in Fonseca's bag (two of which were loaded, and all of which were traced back to the original burglary).

   Fonseca was eventually convicted of possessing stolen firearms.  He appealed his conviction, arguing that the guns should have been suppressed because they were found as the result of an illegal detention.

   To be lawful, a Terry stop must be justified at its inception and reasonably related in scope to the circumstances which justified the stop.  Fonseca acknowledged that the stop was initially justified by reasonable suspicion, but argued that when a few minutes of questioning didn't yield incriminating information then he should have been released.  After reviewing the testimony and video in this case, the court ruled that Fonseca's mannerisms, actions, and answers during the stop were all sufficiently suspicious to justify a few more minutes of detention (the court particularly seemed to notice the sketchiness of Fonseca's responses to questions, and the vanishing bag trick).  Detaining somebody while waiting for NCIC clearance isn't always reasonable, but in this case it was.  And once the officers became aware of the warrant, continuing the detention even further is a given.

   The denial of the motion to suppress was affirmed, Fonseca's conviction upheld.

Tuesday, March 4, 2014

Tenth Circuit US v. Mosley 13-3101

Decision here.

   Police responded to an anonymous tip that two black males were handling a gun in a black Ford Focus in a Denny's parking lot.  The first two officers to show up found only one black Ford Focus in the parking lot, and there were two black male occupants, but they didn't actually see any gun.  They ordered the occupants at gunpoint to show their hands, and the driver complied.  Mosley (the passenger) did not; he began making movements consistent with either retrieving a gun from under the seat or hiding one under the seat.

   The officers (who it seems were standing WAY to close to the car) started kicking the car to "shock" Mosley into compliance.  Eventually he did put his hands up, so they opened the door and ordered him out.  He wouldn't get out of the car, so they dragged him out and cuffed him.  Later, they checked under the seat where he had been sitting and found a gun.  Mosley was charged with being a felon in possession of a firearm.  After the district court denied his motion to suppress, Mosley entered a conditional guilty plea and appealed.

   Mosley's argument is that the police did not have justification for stopping him in the first place, and that the amount of force used during the stop converted the stop into an arrest for which the police lacked probable cause.

   One of the officers testified to a history of shootings and other crimes at that particular Denny's, and the Tenth Circuit sort of hinted that based on all of that and the anonymous tip the officers had reasonable suspicion.  But the court took a different path to actually deciding this case.  

   Someone is seized for Fourth Amendment purposes when one of two things happens: 1- the police attempt to stop them by means of a show of authority and the person submits to their authority, or 2- the police apply physical force to a person to effect the seizure.  In this case, that means that although the driver was seized when the officers started giving orders at gunpoint, Mosley was not.  Rather than put his hands up as ordered, he did the exact opposite.  By the time Mosley did put his hands up, his furtive (I'd have said threatening, but the court said furtive) movements had already provided justification for the stop even if it hadn't been justified in the first place (the court made it clear that it was not deciding that the stop wouldn't have been justified, but only assuming that for the sake of argument).

   As far as Mosley's second argument, that the amount of force used against him converted the stop to an arrest... he misses the point.  During a Terry stop, officers are permitted to use force to ensure their own safety and to "maintain the status quo" during the stop.  Under the right circumstances, that can include pointing guns at someone or forcing them to the ground.  The important question is whether the facts available to the officer at the moment of seizure (in this case, the moment where Mosley finally put his hands up) would make a reasonable person believe the action taken by police was appropriate.  Given all of the information available to the officers at the time of this stop, conducting the initial stop at gunpoint was reasonable.

   The court chose not to decide whether or not everything the police did after that (kicking the car, dragging Mosley out of the car, etc...) converted the detention to an arrest because it doesn't matter.  By then, because he had been failing to comply with lawful orders, the police had probable cause to arrest him for violating the Kansas statute for Interference With Law Enforcement.  So even if dragging Mosley to the ground converted the detention to an arrest, the arrest was justified.

   Since Mosley's Fourth Amendment rights were never violated, the gun was not the fruit of an illegal stop.  The lower court's decision was affirmed, and Mosley's conviction upheld.

Wednesday, February 26, 2014

US Supreme Court Fernandez v. California 12-7822

Decision here.

   Fernandez (and four of his fellow gangstas) robbed some guy at knife point.  During the robbery, the victim was cut, beated, and divested of $400 cash and a cell phone.  Two officers who were searching for the robbery suspect saw someone run into an apartment building and subsequently heard screaming and fighting coming from inside one of the apartments.  They waited for backup, and then knocked on the door.

   A female answered the door, looking like she had been beated.  She was crying, had fresh injuries, there was blood on her shirt, and she said she had been in a fight (she was also holding a baby and told police that there was a four year old in the apartment with her).

   Officers asked the female (Rojas) to step out of the apartment so they could conduct a protective sweep.  Fernandez then came to the door wearing his boxers.  He angrily told police that he knows his rights and that they could not enter the apartment.  The cops removed him from the apartment and arrested him for domestic violence.  Then the original robbery victim identified Lopez as the one who had robbed him, and it was off to the clink they went.

   An hour later, the police returned to Fernandez's and Rojas' apartment.  Rojas gave verbal and written consent to search the apartment.  Then the four year old showed them where daddy kept his sawed-off shotgun.  The police also found gang paraphernalia (related to the gang whose territory the robbery had occurred in), the clothes which were worn during the robbery, a butterfly knife, and some ammo.  Fernandez was eventually convicted of crimes including the robbery, DV, possession of a firearm whilst a convicted felon, and other weapons crimes.  He appealed his conviction, arguing that the evidence should have been suppressed.

   Fernandez's argument is that the search of his property was impermissible under Randolph.

   The Court gives a little background on two-party consent in its decision, citing a couple of older cases that I haven't summarized yet, so I'll go into them here.  In US v. Matlock, Matlock was arrested in his front yard for a bank robbery.  Once he was in the squad car, police asked Matlock's girlfriend for consent to search their room (rather than asking Matlock himself, which they could easily have done).  The search yielded incriminating evidence, and the court found that the search was valid because Matlock's girlfriend had common authority with him over the premises and effects that the police searched.

   In Illinois v. Rodriguez, a mad woman let the police into the apartment which she shared with Rodriguez (who was sleeping at the time), and they found drugs and paraphernalia.  Then they found out that it wasn't really her apartment, she had already moved out and no longer had any authority over the premises.  The court held that the search was reasonable anyway, because at the time of the search the police reasonably believed that it was her apartment.

   And that brings us back to Randolph... most cops are pretty familiar with this one.  Randolph's wife told police that he had cocaine in the house.  Randolph told the cop he couldn't come in, so the cop simply turned to Randolph's wife and asked her for consent to search.  The court eventually ruled that the refusal of a present party who objects to the search overrides the consent given by another party.  The court made it explicitly clear that the objecting party must be present in order to have a say in it, unless the police removed him for the purpose of overcoming (or avoiding) his objection.

   Now we're back to this case (and probably the most important paragraph of my summary).  One of Fernandez's two arguments is that his objection to the search should have stood even though he wasn't present, since the only reason he wasn't present was that the police removed him.  The Supreme Court ruled that this, like other Fourth Amendment inquiries, is not a question of the officers' subjective intentions.  The question is whether it was objectively reasonable to remove the objecting party (and in cases like this one, where there's PC to arrest for DV, a violent robbery, or both, it's reasonable to do so).  Randolph's prohibition against removing someone for the sake of overcoming their objection is only invoked if the police remove them without an objectively reasonable basis for doing so.  And just like that, Randolph went from being a complicated problem to a minor footnote.

   Fernandez's other argument is that because he objected to the search while he was present, his objection should have remained in effect until there was some sort of evidence that he had changed his mind.  The Court didn't think much of that, though.  For one thing, it creates more problems than it solves.  The court gave a hypothetical example of someone serving a fifteen year sentence, and their co-tenant still being unable to give police consent to enter their house ten years into that sentence just because at one time someone who had lived there had objected to a search.  The court also wondered if one could register in advance their objection to searches, or if they'd be putting the police in a position of having to determine whether or not the objecting party still has standing to object after being sentenced to the hypothetical fifteen year sentence.  Or would the objection only last for a specif amount of time?  How long?  And the court wondered if such standing objections would attach to specific officers, to specific agencies, to specific investigations, to any officer who knew about them, or what.

   More importantly than all of those ridiculous arguments, the Court felt that such standing objections to a search wouldn't really be in keeping with the spirit of the Randolph decision.  Randolph was decided largely based on social norms... if your average person (like a domestic violence social worker, a friend, or a relative) were invited into a house by one resident while being simultaneously warned to stay out by another resident, then they probably wouldn't feel comfortable going in.  If, on the other hand, the person warning them to stay out was removed (and they knew he wasn't going to come back during the visit), then the average person might feel more comfortable accepting the invitation.   Besides, allowing Fernandez to simply create a standing objection to police entry that overrides Rojas' consent even after he leaves would show disrespect for her independence and give Fernandez power over her that the Fourth Amendment never intended.

   Long story short, the court didn't agree with Fernandez's arguments.  Rojas' consent to search the apartment was held to be valid, and the evidence found during the search was admissible against Fernandez.  His conviction was upheld.