Wednesday, June 17, 2015

Tenth Circuit US v. Esquivel-Rios 14-3162

   Decision here.

   This case has now made it back through the court system again.  Obviously, the original facts haven't changed much.  Since we last heard from our heroes, an evidentiary hearing in the district court has found that at the time of this stop Colorado temporary tags were not entered into CBI's database at all, so they would not have been available via an NCIC query.  I could have told you that, but I work in Colorado.  The trooper in this case works in Kansas, and so it's not surprising he didn't know that.

   The prosecution changed tactics.  Instead of arguing reasonable suspicion, they're now arguing that suppression is not an appropriate remedy.  Basically, the exclusionary rule exists as a means to deter violations of the Fourth Amendment by removing any police incentive to conduct illegal searches.  The exclusionary rule is a judicially created rule that isn't required (or even set forth) in the Constitution.  So in cases where it would not fulfill its purpose (de-incentivising constitutional violations), it just not applied.  

   Short version: when the police are acting in good faith, and reasonably believe that they are doing things the right way, the exclusionary rule doesn't apply even if it is later determined that there was a violation of the Fourth Amendment.

   That's what the prosecution was arguing for here: a ruling that the trooper in this case didn't know he was violating the Fourth Amendment.  The Tenth Circuit assumed for the sake of argument that there was a violation of the Fourth Amendment, and ruled that if there was such a violation then it was in good faith and suppression was not an appropriate remedy.

Wednesday, May 20, 2015

US Supreme Court San Francisco v. Sheehan 13-1412

Decision here.

   The Ninth Circuit continues its quest to be the most reversed Federal court EVAR.

   Sheehan was living in a group home for people with mental illness, and wasn't doing so well.  She had stopped taking her meds, stopped communicating with her therapist, and stopped changing her clothes.  When a social worker went to check on her, she threatened to kill him with a knife (he didn't actually stop to see whether or not she really had a knife, but she did).  He backed out and called the police for help.  He also completed the paperwork to have her taken in for a mental evaluation, noting on the form that she was a danger to others and gravely disabled. 

   After the first two cops showed up, reviewed the paperwork, and had a hospital ready to admit Sheehan, they knocked on her door and told her they were there to help her.  When she didn't answer, they opened the door.  She sprang at them with a knife, and they closed the door.  They called for more help, but decided to take immediate action because they were dealing with an armed, violent, unstable person who they feared might be escaping, gathering more weapons, or harming someone else (they hadn't at this point determined whether there was anyone else in the room, although Sheehan asserts that they somehow would have been able to see that there wasn't).

   One officer pushed the door open again, and the other tried to subdue Sheehan with pepper spray.  When that didn't work, and when she continued to approach the officers without dropping the knife, both of them shot her multiple times.  Another officer arrived and kicked the knife out of Sheehan's hand (now that she was subdued), and she was taken into custody.

   Sheehan survived.  A jury deadlocked on the charges against her, and the prosecutors didn't bother to retry the case.  Then Sheehan sued the city and the officers who shot her, for an alleged violation of the Americans with Disabilities Act.  The argument is essentially that the police should have accommodated her disability during the arrest by "respecting her comfort zone" and waiting until she calmed down.  I'd say that you can't make this stuff up, but someone obviously did... anyway, the Ninth Circuit denied qualified immunity, holding that a jury could reasonably find that the officers force the confrontation and that it's clearly established that you can't enter the home of an armed, mentally ill person when there's no objective need to do so.

   The Supreme Court granted cert on a couple of issues: first, on whether the ADA even applies to making arrests; and second, on whether or not the officers are entitled to qualified immunity.  But San Francisco's attorney's botched the argument so badly that the Supreme Court changed it's mind about cert on the first issue, and decided not to decide whether or not the ADA applies to making arrests.  So the lower courts can have fun with that.

   Regarding qualified immunity, the Court found the following: The police were initially justified in making entry into Sheehan's room because law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  After they closed the door, they were justified in opening it again for the exact same reason; and also because the two entries were really part of a single, continuous search.  Besides, they knew that Sheehan was armed, that she had just threatened to kill three people, and that delay could make the situation more dangerous.  Even if some idiot former chief of police testified that the officers should have tried harder to find non-violent solutions, the actions that they took here were reasonable.  Subduing Sheehan with pepper spray (or trying to) was reasonable, and when that proved ineffective and she was approaching officers with a knife, shooting her was reasonable.  So since all of that was acceptable under Constitutional standards, we're back to the first question of whether the officers violated Sheehan's rights by not accommodating her disability and respecting her comfort zone.

   The Supreme Court held that the officers didn't violate any clearly established right and therefore are entitled to qualified immunity.

Tenth Circuit US v. Pettit 14-4043

Decision here.

   Pettit was driving across Utah when he was stopped for repeatedly crossing the fog line.  During the stop, he was acting abnormally nervous (the trooper specifically described that his lower body was fidgeting, his whole arm was shaking when he handed over a driver's license, and he told the trooper twice in 25 seconds that he was making him nervous).  Pettit's travel plans were also the sort of thing that makes any cop think of drug trafficking (he was driving a car registered to an absent third party one-way across the country with very little luggage or personal effects).  Also, his license was suspended in both of the states where he had a driver's license.

   The initial stop was at 3:32.  At 3:43, the trooper had completed a citation for the traffic offense, but he did not actually give Pettit the citation or return Pettit's ID card to him.  Instead, he asked for consent to search the car, which Pettit granted.  During the search, he found $2000 cash.  A K9 who showed up during the search quickly alerted to the scent of drugs, and 2.5 kg of cocaine were finally found in the spare tire.

   In court, Pettit moved to suppress the evidence, arguing that the trooper unlawfully extended the stop without reasonable suspicion.  His motion was denied, he was convicted, this appeal followed.

   Although the police are allowed to do certain things during an ordinary traffic stop (such as request license and registration, run computer checks, issue citations, ask questions whether or not they are related to the stop, and request consent to search), a traffic stop may not extend beyond the time reasonably required to effectuate its purpose.  An officer may only extend the traffic stop beyond that time if either 1- the encounter becomes a consensual encounter or 2- the officer develops reasonable suspicion of other criminal activity during the stop.

   The Tenth Circuit held that at 3:43, the traffic stop was over.  By then, the trooper had already completed all of the normal tasks associated with a traffic investigation, and was prepared to issue a citation (although he did not immediately do so).  However, since the trooper did not return Pettit's documents to him, this had not become a consensual contact.  So the important question is whether or not the Trooper had reasonable suspicion.

   Reasonable suspicion has been defined by the Supreme Court as a particularized and objective basis for suspecting criminal conduct under a totality of the circumstances.  It's not a difficult standard to meet, it doesn't require that an officer eliminate all innocent explanations first, or even that a suspect be more likely guilty than innocent.  In this case, the factors listed above (Pettit's unusual nervousness, the normal indicia of drug trafficking, and even the suspended licenses) were enough to amount to reasonable suspicion when viewed as a whole.  The detention thus being justified, Pettit's conviction was affirmed.

Tuesday, May 19, 2015

Colorado Court of Appeals People v. Campos 14CA0125

Decided 4-24-15

   The Colorado Court of Appeals has ruled that employment is a thing of value for the purposes of the identity theft statute (which prohibits using someone else's identifying info to obtain a thing of value).

Colorado Court of Appeals People v. Lopez 13CA1681

Decided April 23, 2105

   Lopez assaulted his wife, breaking her collarbone.  He was hanging out outside the hospital when a cop wanted to ask questions about that.  He threatened her with a knife, but apparently prefers to only beat up women who don't have tasers, so he didn't actually attack her.

   His temper bought him a menacing charge (for threatening the cop with a knife) and an obstruction charge.  After he was convicted of both, he appealed.  The court of appeals held that even though the officer didn't actually see the knife (it was found during a later search while he was being arrested), the evidence was sufficient to convict him of menacing because the emphasis of a menacing charge is properly on the defendant's conduct, not on the the victim's. 

   As far as obstruction goes... this analysis was conducted for the way that the obstruction statute read in 2011 (it has since been appealed).  Because of some unusual wording in the statute, Lopez argued that someone can only be convicted of obstructing a peace officer if the peace officer is making an arrest.  What the statute actually said) is more akin to what you would expect from an obstruction law (don't interfere with the police...), with an added caveat that if the police happen to be making an arrest then it doesn't matter if the arrest is illegal, you still aren't allowed to obstruct them.  Although the statute is pretty clear if you read it and think critically about what it says (said, that is), the court chose to explain it in a metaphor involving citrus fruit.  Not kidding, go read it it.  I had a good laugh.

Tenth Circuit US v. Washington 14-7017

Decided 4-22-15

   Washington and a friend were driving from one city in Oklahoma to another.  The car was a rental borrowed from Washington's passenger's mother, and there was a shit ton of weed in it.  They got caught, and convicted of distribution, and appealed.

   Washington's friend's conviction stood, but this is Washington's case.  The Tenth Circuit held that his mere presence in the car, even combined with speculation about what he might have known, was not enough to find beyond reasonable doubt that he knew about the drugs in the car (particularly given that he was not the only one in the car).  Apparently, there was stronger evidence tying his friend to the drugs.

US Supreme Court Rodriguez v. US 13-9927

Decided 4-21-15

   Rodriguez was driving on a Nebraska highway when he was stopped by police for drifting out of his lane.  During the traffic stop, the officer checked both Rodriguez and his passenger for warrants, asked them questions about their travel plans and eventually gave Rodriguez a written warning for the traffic violation.  He then asked Rodriguez for permission to run a drug dog on the outside of the car.  Rodriguez refused.

   The officer instructed Rodriguez to shut off the car and wait by the patrol car.  He did so.  When another officer arrived (7 or 8 minutes later), the officer ran the dog on the car.  During the second pass around the outside of the car, the dog alerted.  A subsequent search of the car revealed distribution amounts of meth.

   In court, Rodriguez moved to suppress the meth.  A magistrate heard testimony from the officer, and then ruled that although there had been no reasonable suspicion to detain Rodriguez once the traffic stop was concluded, the 7 or 8 additional minutes of detention were a de minimus intrusion and therefore permissible under the Fourth Amendment (I was shocked by that reasoning; it wouldn't have worked in Colorado.  But apparently the 8th Circuit was good with it).  Rodriguez appealed all the way up to the Supreme Court.

   The court held that the reasonableness of a stop (in terms of duration) depends on the time needed to handle the reason for which the stop was made.  In this case, a traffic violation.  The court has long recognized certain things as being an acceptable part of a traffic investigation (such as questioning the person stopped, checking insurance and registration, and checking a database for arrest warrants and license status).  The court views those things as serving the underlying purpose of the traffic stop.  Other things (like asking questions which aren't related to the stop, or like running a dog on the outside of the car) aren't specifically prohibited, but prolonging the stop beyond the amount of time required to address the reason for the stop is prohibited.*

   The Court emphasizes that it's not just a question of whether the additional detention occurs before or after the summons/warning is issued.  The amount of time the police have to handle a traffic stop is however long it reasonably takes them to handle a traffic stop, and you can't drag that out in order to address things outside the scope of the stop.**  The Court also emphasizes that an officer can't simply hurry through the traffic stop business and then use the time it normally would have taken to complete a traffic stop to detain someone for a drug sniff.  If you can work quickly to get through a traffic stop in half the time that it normally takes, then it only means that your traffic stops now take less time than they used to.

   Accordingly, the court ruled that the additional detention could not simply be ignored as a "de minimus" intrusion on Rodriguez's liberty.  Instead, that was a real detention, no longer justified by the traffic violation because the traffic violation had already been fully investigated and addressed by the written warning.  But that doesn't necessarly mean that the additional detention was unjustified.  The magistrate had held that there was not reasonable suspicion of drug activity, but the court of appeals never reviewed that part of the decision (since the court of appeals had agreed that the detention could be justified under the "just because" theory).  The case is remanded back to the court of appeals to review whether or not there was reasonable suspicion of additional criminal activity at the time that the officer decided to detain Rodriguez.***

*Unless, of course, new information comes to light during the stop which justifies the additional detention.

**Again, unless something happens during the stop which creates reasonable suspicion or probable cause.

***Most of the justices who dissented from this opinion would have simply ruled that there was reasonable suspicion to justify the additional detention, based on details not mentioned in the majority opinion.  Things like the overwhelming air fresheners, the passenger's abnormal level of nervousness, and the strange explanation that Rodriguez gave for his late night travel.

Friday, May 15, 2015

Colorado Supreme Court People v. Ackerman 14SA358

April 20, 2015

   Ackerman ran from the cops on an ATV whilst drunk, and crashed.  He and his passenger both sustained serious injuries and were transported to different hospitals.  She was DOA.

   The agency handling the investigation apparently had some pretty convoluted protocols for handling cases like this.  They have an accident reconstructionist team (which makes sense), but in critical incidents they also handle an internal investigation (do make sure there's no police wrongdoing) at the same time as their criminal investigation, which is one of the dumbest things I've ever heard.  Their dumbass policies become an issue because of the trial court's findings.

   Anyway, the accident investigators sent some people to the scene, an officer to each of the hospitals where the involved parties went, and had someone writing an affidavit for a search warrant for Ackerman's blood.  Before the affidavit could be completed, the officer at the hospital with Ackerman learned that he as about to go into surgery.  The guy who was running the investigation made the decision to order a warrantless blood draw before the surgery, and then a warrant was obtained to get two more blood draws afterwards.

   Of course, Ackerman's BAC was well over the legal limit.  In court, he moved to suppress the results of the blood tests.  The trial court held that the reason the warrant wasn't obtained was because of a procedural breakdown in the investigation, and because of poor communication between the officers.  The first blood test was suppressed, but the two with a warrant were admitted.  The people filed an interlocutory appeal.

   The Colorado Supreme Court explained that involuntary blood draws are justified when four conditions are met: 1- There must be probable cause to arrest the defendant for an alcohol-related driving offense.  2- There must be a clear indication that the blood sample with be evidence of the defendant's intoxication (this is a gimme, since blood tests are well established to be extremely accurate in gauging intoxication).  3- Exigent circumstances much exist which make it impractical to obtain a warrant.  4- The test must be a reasonable one, conducted in a reasonable manner (another gimme, since medical professionals always handle the blood draw in accordance with their procedures).

   In this case, the trial court had ruled that there was probable cause, but only that there was no exigency.  The Supreme Court acknowledged that if the cops had known at the start of the investigation exactly when Ackerman would be in surgery and unavailable for a blood draw then this would have been the correct ruling.  However, the cops were already dealing with a complex and logistically challenging investigation (this must have been a small department...), were already trying to get a warrant, and then they learned at the last minute that Ackerman was about to go under the knife.  Under those circumstances (and without the 20/20 hindsight employed by the trial court), it was impractical to obtain a warrant for the first blood draw.

   The suppression order was reversed, and the case remanded to the trial court for further proceedings.

Wednesday, May 6, 2015

Tenth Circuit US v. Paetsch 13-1169


   This is one of those "summaries" which is so long that you might want to just read the actual decision.  

   Paetsch robbed a bank with a handgun, while dressed in a beekeeper mask and dark clothing that covered him from head to toe.  The police had no suspect description, no vehicle description, and basically jack shit to go on.  Except that there was a GPS tracking device hidden in the money that Paetsch took.

   Dispatch was giving officers live updates of the location of the tracker, so they knew that it was probably in a car (since it was travelling at about 30-40 miles per hour).  About 15 minutes after the robbery, they knew that the tracker was in one of about 20 cars stopped in eastbound traffic, at a red light at a particular intersection.  With no immediate way to differentiate which of the cars held the suspect, the police blocked the intersection and detained them all.  Occupants of the car were ordered via PA system to put their hands up (or hold their hands out of the windows).

   Dispatch was only able to narrow the location of the tracker down to a 60 foot radius, so the cops were waiting for a handheld tracker that would allow them to the location down to one car.  It was supposed to get there in a half hour, but it wound up taking around three times that long because the deputy responsible for it dropped the ball (repeatedly.  First he forgot his office keys when he left his house, then his siren broke, and when he finally arrived he didn't remember how to work the device and had to call for someone who knew what he was doing).

   While they were waiting for the tracker, Paetsch kept looking around, shifting in his seat, and refused to keep his hands up (this was 29 minutes after the roadblock was set up).  He was removed from his car at gunpoint and handcuffed (so was the occupant of another car who was acting similarly suspicious).  Eventually everyone was taken out of their cars (this time just on general principle), and then a secondary sweep of the cars was done to make sure no one was hiding.  During that sweep, officers noticed a bank band in Paetsch's car.

   Paetsch was arrested about an hour and a half into the stop, after someone finally got the handheld tracking device to work and picked up a strong signal from his car.  Everyone else was still detained (for some reason) for another half hour, but then finally released.  Guns, a mask, and $20,000 were found in Paetsch's car.

   In court, Paetsch moved to suppress all the physical evidence and  some statements he made (which aren't described in the decision).  He argued that the stop violated the Fourth Amendment due to the lack of individualized reasonable suspicion.  The district court ruled against him (although it did suppress whatever his statements were, since he had asked for a lawyer).  Paetsch conditionally pled guilty, and then appealed.

   The Tenth circuit affirmed the decision of the lower court.  Paetsch was correct that at the inception of the stop there was no individualized reasonable suspicion, but the real touchstone of the Fourth Amendment is reasonableness, not necessarily reasonable suspicion.  The court analyzed the reasonableness of the stop by balancing the gravity of public concern and the degree to which the seizure advanced public interest against the severity of interference with individual liberty.  In other words, they asked how important it was (they were trying to catch an armed robber), how effective it was (it worked), and balanced that against the impact on individual liberty (and this is where it gets even more interesting (if you're into this sort of thing (but you are reading a blog about it, so you must be))).  For the first 29 minutes, the court found that the mass detention was reasonable.  After that, because Paetsch (and one of the other mass detainees) was acting suspicious by refusing to keep his hands up and by fidgeting in his seat and looking around, the police had a reason to detain Paetsch in particular.  From that point on, the reasonableness of the mass detention is not an issue in this case, because Paetsch's detention was reasonable and because 4th Amendment rights are personal rights which can't be vicariously asserted (i.e. Paetsch can't assert the other detainees' rights, only his own).  Therefore, the court decided not to decide whether the mass detention was still reasonable (although I'd suspect that it was, just not for as long as it eventually went on.  After Paetsch was eventually arrested, they still held on to everyone else for another half hour).

   Obviously, once the officers saw the money band in Paetsch's car and especially once the tracker had been located in his car there was probable cause to arrest Paetsch and search his car.  Paetsch's conviction stands.

Monday, April 27, 2015

US Supreme Court Grady v. North Carolina 14-593

Decided 3-30-15.

   As a recidivist sex offender, Grady was court ordered to be subjected to satellite based monitoring for the rest of his life.  Basically, he would have to wear a monitor at all times, which would give the state continuous time-stamped information about his location, and alerts if he either wasn't somewhere he needed to be, or was somewhere he wasn't supposed to be.

   Grady appealed the decision requiring his monitoring all the way to the Supreme Court.  His argument was that if GPS monitoring of someone's car (as in US v. Jones) is a search, then GPS monitoring of their body is also a search.  North Carolina's arguments were pretty convoluted... first they held that because the program is civil in nature, this is not a search.  Then they argued that because Grady didn't present any evidence that the program obtains information, the courts have no way of knowing whether or not it's a search (both arguments seem almost inconceivably stupid to me).

   The Supreme Court held that GPS monitoring of a person is a search, using similar reasoning to what they did in Jones (the GPS monitoring device Grady would be required to wear is essentially a physical intrusion on his property).  It doesn't matter if it's a civil process or a criminal investigation... even home inspectors doing inspections are conducting a search which must comply with the Fourth Amendment.  It also doesn't matter that Grady didn't do enough to explain the program to the Supreme Court... it's goal of obtaining information is evident both from the name of the program (Satellite Based Monitoring) and from the statute authorizing it.

   On the other hand, just because it's a search doesn't mean it's an unreasonable search.  Since the state courts never addressed the reasonableness of it, the Supreme Court remanded the case back to the State to consider whether or not the search is reasonable.  Kinda like telling them to stop skirting the issue, and make a proper decision.

Sunday, April 26, 2015

Colorado Court of Appeals People v. Theus-Roberts 12CA0013

Decided 3-26-15

   Theus-Roberts took a cab to a bunch of different places, racking up a $90 fare.  At the end of his big night out, he could only pay $80.  He told the driver that his friend would be along shortly to give him the rest of his money.

   A few minutes later, Theus-Roberts came back, shot the driver in the chest, and took the $80 back.  He fled, the driver called the police, gave them his description, and Theus-Roberts was found hiding in a nearby garage.  An eyewitness identified him in a show-up (the driver survived, and identified Theus-Roberts at trial as the shooter).

   Theus-Roberts was convicted of exactly what you'd expect, but he appealed his conviction.  His argument is that the court should have suppressed the eyewitness identification because the show-up was unduly suggestive.

   The Court of Appeals explains that "A one-onone showup identification may be permissible and reasonable in situations where immediate identification would facilitate an ongoing criminal investigation.  The reasonableness of the showup procedure, however, must also be measured against the potential for irreparable misidentification."  The important question is whether any given show up was unreliable because of being unnecessarily and irreparably suggestive.  Relevant factors include the opportunity of the witness to view the suspect at the time of the 4 crime, the witness's degree of attention, the accuracy of any prior description of the suspect, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

   In this case, the witness lived across the street from the shooting, looked out her window after hearing the shooting, and described Theus-Roberts by race and by a bag he was carrying (and later found with).  An hour after the shooting, an officer told her that they may or may not have a suspect in custody, and that he wanted her to tell him whether or not someone was the same person she had seen near the cab.  A couple of officers removed Theus-Roberts from the ambulance, and the eyewitness immediately identified him with certainty.

   The trial court had correctly denied Theus-Roberts' motion to suppress the show up.  He had a few other arguments on appeal, but they're more relevant to prosecutors than to cops (and none of them had any merit).  His conviction is upheld.

Colorado Court of Appeals People v. Griego 10CA2609

Decided 3-26-15.

   The facts of this case would've been sufficient to convict Griego of his 7th and 8th DUI, which is what the police charged him with.  But the prosecution randomly decided to change the charges to attempted second degree assault and attempted manslaughter, arguing that by driving while he was drunk he was attempting to kill everyone in the area.

   ...sigh... I like the enthusiasm, but that's crazy.

   Somehow, they got a conviction on that theory.  Griego appealed, and the Court of Appeals held that the prosecution's theory was nonsense and remanded for acquittal on all counts.

Monday, March 9, 2015

Colorado Supreme Court People v. Munoz-Gutierrez 14SA187

Decision here.

   An officer working a drug interdiction assignment pulled Munoz-Gutierrez over for weaving across the fog line.  There was a bit of a language barrier, but they were able to communicate (especially after the arrival of another officer who spoke a little more Spanish, albeit not fluently).

   The cops did that thing where they give someone a warning, tell them they're free to go, and then ask them if they'd mind answering a few more questions.  They asked (in Spanish) if there was anything illegal in the car, and after Munoz-Gutierrez denied that they asked if they could search.  He gave consent (apparently through body language, the decision doesn't specify how).  They brought out a written consent form, but Munoz-Gutierrez's education wasn't really sufficient for him to understand it (although it was in Spanish), and he signed on the wrong line.

   They searched the car and found enough marijuana for it to be illegal even in Colorado.  Munoz-Gutierrez was arrested, but the trial court later found that his consent was invalid because the cops didn't explain to him beforehand that he had the right to refuse.  The people filed an interlocutory appeal.

   Before searching based solely on consent, C.R.S. 16-3-310 requires police officers in Colorado to explain to someone that they are being asked to voluntarily consent to a search and that they have the right to refuse.  It's not something we're required to recite verbatim, and failure to advise a person as required is only considered a factor in whether or not the consent was voluntary.

   In this case, the Colorado Supreme Court held that the trial court incorrectly treated the lack of required advisement as fatal to the voluntariness of a search.  As far as the courts are concerned, the real question is whether the consent is due to unduly coercive conduct by the police which overbears the defendant's will.  Factors which the courts consider include: the age, education, and intelligence of the defendant; the duration, location, and circumstances of the search; the consenting person's state of mind; and anything else that could have affected the defendant's free and unconstrained choice in consenting to the search.

   In this case, the court held that although the police didn't give the proper advisement of Munoz-Gutierrez's right to refuse, and although that factored against them, they still didn't overbear his will.  The order suppressing the search was reversed, and this case was remanded to the trial court for further proceedings.

Sunday, January 11, 2015

Tenth Circuit US v. Denson 13-3329

Decision here.

   Denson, an armed robbery convict out on parole, stopped reporting to his probation officer and disappeared.  As we all know, this sort of behavior is heavily frowned on.

   At some point, Denson opened a utility account in Witchita.  Why he used his own name is anyone's guess, but he did.  Police showed up at his address at 8:30 in the morning on a weekday, found the electric meter whirring away, and entered the house.*  Sure enough, Denson was home.  And during a protective sweep, they found a stash of guns. 

   Denson moved to suppress the guns, arguing that the police entry into his house was unlawful, and that even if it was lawful to enter it was not lawful to search the house once he had been arrested, and that even the protective sweep was lawful it was unlawful to seize the guns.

   First, the entry: Under Payton, the police have limited authority to enter the residence of a wanted person if they have reason to believe that the aforementioned wanted person is home.  In the Tenth Circuit, "reason to believe" is taken to mean reasonable suspicion.  In some circuits, it's taken to mean probable cause.  In this decision, the Tenth hinted that they might reconsider and go with probable cause at some point in the future, but they aren't changing their minds just yet.

   In any event, the police had probable cause to believe that Denson was home.  It was his only known residence, he wasn't known to have a job, it was 8:30 in the morning, he wasn't likely to be out and about whilst hiding from the police, and the electric meter was spinning furiously.  Taken together, those facts created a fair probability that Denson would be home (and probable cause is just a fair probability... it's not even necessarily more likely than not).

   Second argument: given that Denson was a known gang member with a violent history who was hiding from the police (and who was known to have a roommate who was also wanted), a protective sweep of the residence was justified.  That said, the police almost blew this one with their stupid little radar.  After all, shouldn't the police have known no one was in the house because their radar told them?

   The Court makes it clear that it'll probably decide that way in the future, but that in this case there just wasn't enough information on the reliability and the capabilities of the radar.  The court didn't know if the radar's ability to see who all was in a house was good enough to dispel the officers' fears that someone else dangerous might be inside.

   Third, Denson argued that the guns weren't readily recognizable as contraband because the cops didn't know if someone else owned the guns.  But felons aren't just prohibited from owning guns, they aren't allowed to possess them (and given Denson's ability to control the guns in his house, he constructively possessed them).  So the guns were readily recognizable as contraband.

   Denson's conviction was upheld.

*The police also used a radar device to see whether or not anyone was in Denson's house, and saw footprints in the snow in the back yard.  The court did not consider these facts.  The only reason that it would have been legal for the police to use the radar or to enter the back yard is if entry were already justified, so it's impossible to use those facts to justify entry.  Sometimes it scares me how little federal agents seem to understand the law... it's like they aren't even trying.  Unless it was local law enforcement pulling this crap, in which case I apologize to the feds.

Colorado Court of Appeals People v. Brown 11CA0556

Decision here.

   Brown appealed his conviction for murdering his wife.  Most of his arguments aren't relevant for this blog, but one of them was interesting.

   The police had obtained a warrant to search Brown's car.  They were surveilling for a couple of hours first.  They saw brown walk up to the car and put a backpack in it, and chose that moment to execute the warrant.  Brown asked to be able to take the backpack out of the car, but the police didn't allow him to, and evidence found in the backpack was later used against him.

   The Court of Appeals upheld the admission of the evidence from the backpack, holding that since it was in the car at the moment of seizure it was within the scope of the warrant.

Tenth Circuit US v. Long 13-5082

Decision here.

   Long was arrested after the police served a search warrant on an apartment being used for drug trafficking (Long was in the apartment at the time, along with a gun, a lot of cash, and a lot of cocaine).  In court, he challenged the affidavit for the search warrant.

   The affidavit relied on a confidential informant who had apparently given reliable information in the past.  Long argued that the affidavit did not establish probable cause because the informant did not name him, and because the police didn't corroborate the information the informant had given about the apartment.  The court held that it was unnecessary for the information to name or describe Long, since the informant asserted that there was cocaine in the apartment and the search warrant was directed at the apartment rather than at Long.  The court also held that because the informant had previously given reliable information, this tip was enough to establish probable cause without additional corroboration.

   Long's conviction was upheld.

Tenth Circuit US v. Hood 13-6182

Decision Here.

   Police were investigating a series of residential burglaries.  One of the suspects left a phone behind at one of the burglaries (idiot).  The police went to the apartment which the phone was registered to, and heard someone inside, but no one answered the door.  Then the police went to the parking lot and found a stolen car (associated with the same apartment).

   While they were dealing with that, one of the neighbors told them that someone was running from apartment 108 (which they had just left).  The went back to the apartment, and found Hood trying to get away.  He was wearing a heavy jacket and fumbling with his pockets.  They detained him at gunpoint, and handcuffed him after he told them he didn't know if he had a weapon.  Turned out that he had a gun in his pocket, and that he was a convicted felon.

   In court, Hood moved to suppress the gun.  He argued that the police violated the Fourth Amendment by pointing guns at him and handcuffing him.  On appeal, the Tenth Circuit explained that officers are allowed to use force during Terry stop to the extent that such steps are reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop.  The courts evaluate our actions based on whether the facts available to the officer at the moment of the seizure would warrant a man of reasonable caution in the belief that the action taken was appropriate.

   Under these circumstances (investigating a burglary, high crime area, suspect fleeing, clothing suitable for concealing weapons, fumbling in pockets), it's pretty obvious that the officers acted appropriately.  Hood's conviction was upheld.

US Supreme Court Heien v. North Carolina 13-604

Decision here.

   Heien was a passenger in (and owner of) a vehicle which was stopped for having a brake light out.  During the stop, Heien and the driver both consented to a search of the vehicle, and the cops found cocaine.  Heien was arrested for drug trafficking.

   Heien moved to suppress the cocaine, arguing that the stop was unlawful because the North Carolina traffic code only requires one brake light.  And although the way the traffic code is written is confusing (it requires "a stop light," but mentions that this light can be incorporated into the tail lights, and also requires that all tail lights be in working order), it turns out that Heien is right.  And so this case worked its way up through appeals, all the way to the Supreme Court.

   The Supreme Court upheld the stop.  Here's why: the Fourth Amendment requires that searches and seizures be reasonable, and therefore that officers act reasonably, but it does not require us to be perfect.  A stop can be based on a reasonable mistake of fact and still be valid.  The court uses the examples of arresting the wrong person with a warrant (who matches the suspect description) or pulling someone over for driving alone in a carpool lane only to find that there are kids in the back seat of the car.  In either case, the seizure would be valid even though it was erroneous and based on a mistake of fact.

   The court held that reasonable mistakes of law are no different than reasonable mistakes of fact.  That's not to excuse sloppy study of the law, but just recognizing that the police have to be ready to quickly apply the law to novel situations, and sometimes they don't have time to go do thorough research before deciding whether or not to detain someone.