Wednesday, January 29, 2014

Tenth Circuit US v. Gordon 12-4170

Decision here.

   Thaxton called the police to report that she had been in a domestic with her boyfriend (Gordon) two days earlier.  She was crying and whispering into the phone so that Gordon wouldn't hear her and know that she called.  The two of them lived with another roommate who supposedly had warrants for his arrest, Gordon was on probation, and there were weapons all over the house.  She complained of injuries, and said that they had argued about getting her help for her injuries.  When asked if she could answer the door when the police got there she said "I guess, if he doesn't kill me first."  She also told the dispatcher that if they found out that she had called the police "seriously, they are going to hurt me."

   Officers arrived and made some form of non-consensual entry into the house (the decision doesn't really give much more detail than that).  A couple officers waited upstairs with Gordon while another one met with Thaxton in the basement.  She told them about how two days earlier Gordon had shoved her against a wall, breaking her glasses and causing her to fall and hurt her arm and neck, and that he had then swung a samurai sword at her.  Gordon's story was that they had argued, but that's all.  The roommate apparently wasn't around to give his statement.

   Thaxton showed an officer to the bedroom where her broken glasses were.  While following her to the bedroom he saw an unstrung crossbow (which he left alone), a loaded shotgun (which he temporarily seized for safety reasons).  He also seized three samurai swords which were displayed in the basement, because Thaxton wasn't sure which of the three Gordon had swung at her.

   Thaxton was evaluated by medics and transported to the hospital, Gordon was arrested.  The officers locked up the residence and (illegally) retained possession of the shotgun.  While on the way to the jail, the arresting officer learned that Gordon was a convicted felon.  He was charged federally with being a felon in possession of a firearm.

   Gordon moved to suppress all the evidence, but especially the shotgun.  The trial court had none of it and he was convicted, and he renewed his arguments on appeal.  

   Gordon argued that the initial entry into the house was not justified by exigent circumstances because there was no immediate threat of injury.  The court held that although the initial violence had been two days earlier, the facts known to the police through dispatch about Thaxton's current situation which support exigency.  She was crying and afraid to leave the basement, and afraid she would be seriously harmed for calling the police.

   Gordon argued that even if the initial entry was justified, once he and Thaxton were both contained any exigency was no more, and so further intrusion into the house (such as following Thaxton while she went to get her glasses) was unreasonable without Gordon's consent.  The court disagreed with Gordon again.  There were weapons all over the house, the whereabouts of the roommate were unknown, etc.

   Gordon finally argued that even if the officer reasonably followed Thaxton to the bedroom, that he had no reason to seize the shotgun because he had no information that would tie it to a crime.  And on this one he's only half wrong.

   The initial seizure of the gun for safety reasons was valid.  We can temporarily seize people or objects for our own safety or for the protection of others.  It's a pretty simple precaution to take possession of a gun in a case like this.  The trouble is that since there was no reason (yet) to believe that the gun was evidence of a crime, the shotgun should have been left in the house when the police left with Gordon.

   Even so, the court declined to suppress the shotgun.  Their reasoning was that the evidentiary nature of the gun became obvious within a few minutes (when the cop learned that Gordon was a felon), so he was only improperly deprived of his property for a few minutes during which he was in custody anyway.  That kind of minimal violation does not, in the court's eyes, merit suppression.  And although it wasn't argued by the government, the court noted that this would have been a good case of inevitable discovery.  And besides all that, even if the shotgun were suppressed it would be a symbolic measure.  It's not like they're going to actually give the gun back to a convicted felon, and even if the physical shotgun were not present as evidence in court, the officers (and Thaxton) would have been able to testify to it's presence in the home so Gordon would have been convicted anyway.

   Conviction affirmed.

Tenth Circuit US v. Harmon 12-2099

Decision here.

   Harmon was driving a car through New Mexico with drugs in the spare tire.  A cop saw him weaving within his lane for a while and crossing the fog line with both passenger side tires once.  The officer did not pull him over immediately because they were in a construction zone.  When he did stop him, the dashcam turned on and captured footage beginning one minute before the stop was made (it was one of those systems that starts the recording before you turn it on, so as to capture the actual violation).  Since all the weaving and the fog line crossing occurred more than a minute prior to the stop, they weren't part of the recording.  The recording didn't show any violations.

   The officer asked Harmon to come back to his car, and then asked him if he was fatigued or impaired.  He didn't do FSTs.  He gave Harmon a written warning, told him that he was free to go, and as Harmon was walking back to his car he asked if he would mind answering a few more questions.  Harmon came back, and the officer asked him if there were illegal drugs in the car (he had been tipped off by a heavy air freshener smell).  Harmon denied that there were, but gave him consent to search.  The officer found the drugs in the spare tire, and Harmon was charged with possession with intent to distribute.

   Harmon conditionally pled guilty, and moved to suppress the evidence.  He argued that there was no reasonable suspicion to justify the stop and that the search exceeded the scope of the stop.

   The New Mexico statute related to crossing lane markers says that a vehicle shall be driven as nearly as practicable within a single lane, and shall not be moved from that lane until the driver has first ascertained that such movement can be made with safety.  Pretty similar to Colorado... anyway, the NM courts have held that just crossing a little over the fog line once is not necessarily a violation of the statute.  The statute doesn't create a per se violation for crossing lines, so you would need something more like a continuous drifting out of the lane, straddling lanes, or some other dangerous driving to create a violation of this statute.  I have no idea what the Colorado courts say about our own similar traffic code.

   Since the New Mexico Supreme Court is the final authority on New Mexico laws, the question before the Tenth Circuit wasn't whether or not they thought it was a violation, but whether or not they thought the NM Supreme Court would think it's a violation.  They looked at a few cases which fell on both sides of the argument, and decided that they really didn't know what New Mexico would say.  Instead, the Tenth held that given the weaving AND the line crossing, the officer had RS for driving while impaired.  So the stop is good.

   As far as exceeding the scope of the stop, the search happened after the stop had transitioned from a detention to a consensual encounter.  So that was good, too.  Harmon's conviction was upheld.

Monday, January 13, 2014

Tenth Circuit US v. Wells 11-5162

Decision here.

   Wells was part of a ring of cops who were stealing money and drugs from suspects.  He wasn't initially the one that the FBI had a lead on, but he did get caught up in the sting.

   Essentially, an FBI agent posed as a drug dealer using the moniker "Joker," and then an informant leaked information about Joker to the Tulsa PD.  Wells and his co-conspirators detained Joker outside of his hotel room, obtained consent to search his room, and then stole some of the cash that they found.  They apparently did not find the cameras.

   They went on to try to set up drug deals with Joker (some of which were simulated by using informants or other FBI agents), and eventually they were arrested for being the dirty sons of bitches that they are.

   Wells was the only officer convicted out of that whole mess, and he appealed his conviction.  His arguments were all dumb, and only one of them is worth mentioning here.  He argued that the recordings of him stealing the cash should be suppressed, because they violated his reasonable expectation of privacy.  

   Yeah.  His reasonable expectation of privacy in someone else's hotel room where he was present not as an invited guest, but as a police officer purportedly investigating a crime.  Legally present in the room, sure.  He was there by valid consent.  But bullying your way into someone else's hotel room (or even asking nicely, on the off chance that he did that) doesn't create the sort of expectation of privacy that our society is going to acknowledge as reasonable.

   This decision contains some discussion of cases from the 9th circuit where an informant's invited guests were captured on video surveillance sampling the drugs for three hours after the informant left.  In that case, the evidence was suppressed because invited guests of whoever's room it is were held to have a reasonable expectation of privacy.  Without commenting on whether or not they agree with that reasoning, the Tenth Circuit pointed out that this case is entirely different.  Wells had no social connection to the room.  He didn't have any standing there, he wasn't invited by anyone with standing.  

   All of that means that he did not have a reasonable expectation of privacy, which means that the audio and video surveillance did not implicate the Fourth Amendment, which means that Wells' conviction stands.

Tenth Circuit US v. Ko 13-3064

Decision here.

   I don't normally do statutory interpretation cases involving federal law, but I couldn't pass this one up.

   Ko was serving out the final chapters of a prison sentence at home with an ankle monitor.  He was allowed to leave each morning to go to work, but had to be home by 7 pm.  One day, he did not come home.  He was arrested in another city and charged with escape.

   The magistrate dismissed the indictment, ruling that because he was being allowed to serve his sentence at home with an ankle monitor, he wasn't really in custody of the BOP.  The prosecution appealed, arguing that he was in BOP custody because he hadn't finished his sentence yet, and the fact that the BOP was allowing him to serve his sentence in his own home (subject to their restrictions) didn't change anything.  The Tenth Circuit agreed that prisoners in custody are in fact in custody.  The dismissal of the indictment was reversed.

Tenth Circuit US v. Christy 12-2127

Decision here.

   K.Y. was a 16 year old girl who live in California, and Christy was some creepy older guy in New Mexico who she met online.  After exchanging sexually explicit emails and phone calls, Christy drove out to California to pick K.Y. up and bring her home with him.  Her parents reported her missing, and then they and the FBI figured out that Christy had helped her run away.  They let the cops in New Mexico know.

   A couple of deputies went to Christy's house to do a welfare check on K.Y.  While they were there, one of them went into the back yard and looked through a crack in the blinds.  He saw K.Y. inside, dressed in lingerie.  She was smiling and holding a rope.  The deputy contacted his sergeant to request permission to force entry into the house and to request backup.  Then he looked through the window again.  This time, K.Y. was topless and bound by the rope which she had been holding.  Also, there were camera flashes inside.

   When the next deputy got there, they forced their way into the house.  They found porn during a protective sweep.  Christy was given Miranda warnings, after which he admitted to picking K.Y. up in California, driving her to New Mexico, and having sex with her.  The deputies then obtained a search warrant, which led to the discovery of sex toys, used condoms, and child porn (including pictures of K.Y.).

   The district court ruled that the initial entry into Christy's house was unconstitutional and suppressed everything.  After the prosecution filed a motion to reconsider, the court reversed itself and ruled that the evidence would be admissible under the inevitable discovery doctrine because if the cops hadn't illegally searched Christy's house then they would have applied for a warrant and then searched it legally.

   Gotta say, that sorta blows my mind.  I mean, I get that it's clear that there was AMPLE evidence, and it would have been really easy to get a warrant.  I also understand the deputies' reasons for not doing so (although the district court apparently didn't see it that way).  But if we're going to say that there were no exigent circumstances, and that this search was illegal because there was no warrant, then it seems counterintuitive to say "but if the police had gotten a warrant then they would have found the evidence, so we're good with it."

   Creepy appealed the decision.  And it turns out that the Tenth Circuit is good with it, because probable cause in this case was so compelling.  The Court does point out that they aren't giving the police carte blanche to search without warrants and then say that they'd have found the evidence if they had got a warrant.  The question for the court to decide is not whether a warrant could have been issued if the illegal search had not been conducted, but whether a warrant would have been issued.  

   So that's one in our favor, and Creepy's conviction stands.  But I suspect that the inevitable discovery balance here is a particularly delicate one.  Let's not Gant this up.

Tenth Circuit US v. Rodriguez 12-2203

Decision here.

   This case was actually decided a couple weeks ago, but I've been really busy.  Sorry it's late, I've got about another 20 cases to read through after this before I'm caught up (of course, I have no idea whether or not any of them will meet the inclusion guidelines).

   Anyway, Officers in Albuquerque responded to a call that gas station employees were showing each other guns.  When they got there, one of the officers saw an employee bend over while stocking the shelves.  When he bent over, the back of his shirt lifted up and the officer saw a handgun tucked into the back of his waistband.  When the employee (Rodriguez) stood up, the gun was concealed again.

   Given that the cramped space in the store limited tactical options, the officer ordered Rodriguez out of the store to talk to them.  As Rodriguez was walking out of the store, the officer retrieved the gun.

   The gun turned out to be loaded (this is an important distinction under New Mexico law), and Rodriquez immediately admitted that he did not have a CCW permit.  While they were searching him for other weapons, the officers asked if he had been arrested (because he had prison tats).  He admitted to having done time.  He claimed that he carried the gun for protection because he had been shot at in the store.

   The officers checked NCIC and found that the gun was stolen and that Rodriguez was a convicted felon.  Off to the clink!  Rodriguez was eventually convicted of the federal version of POWPO, after the district court denied his motion to suppress.  He appealed, arguing that the fact that he was carrying a concealed weapon did not create reasonable suspicion that he was committing the crime of carrying a concealed weapon.

   In New Mexico, there are a few exceptions to the CCW law, such as carrying a concealed weapon on your own property (or property that you rent), carrying a concealed weapon which is not loaded, or carrying a concealed weapon whilst licensed to do so.  Rodriquez argued that although the police knew he was carrying a concealed weapon, they didn't have reasonable suspicion at the inception of his detention because they didn't eliminate those possibilities first.*  The Tenth Circuit pointed out that these are exceptions to the law rather than actually being elements.  That means that unless one of them had been really obviously applicable, the police don't need to stop and consider them for probable cause purposes, much less for reasonable suspicion (so maybe things would have been different if the police had already known that he DID have a CCW permit, or if all of this had taken place at Rodriguez's house instead of a gas station).  Besides that, the court recognized that in light of common-sense judgments about human behavior, the fact that Rodriguez was carrying a concealed weapon was enough to support reasonable suspicion that it was loaded.

   Rodriguez also brought up a somewhat more creative argument... a stop and frisk justified by Terry consists of two separate Fourth Amendment actions: the stop (or detention), and the frisk (or the actual search).  Each of these is a distinct action that has to be individually justified; just because you can stop someone doesn't mean you can search them.  Searches are permitted when there is reason to believe that the person you have stopped might be armed and dangerous.  All of this is already clearly established, here's where it gets creative: Rodriguez argued that although the police may have known him to be armed, they had no reason to believe that he was dangerous, and therefore the search was unjustified.

   Fortunately, the courts saw that for being exactly as stupid as it is.  The police aren't expected to be mind readers who know whether or not someone with a gun is going to do something with it.  A suspect with a gun is inherently dangerous, even if he doesn't also happen to be committing a crime just by carrying the gun.  So the police had plenty of reason to search and disarm Rodriguez.

   Rodriguez's conviction was upheld.

* This argument may have actually held some water in Colorado, where the CCW law is worded a little differently.  Here, people are allowed to carry concealed weapons on premises which are under their control.  So under identical circumstances, there really would have been no reasonable suspicion of criminal activity at the beginning of the detention.