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.

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.

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.

Tenth Circuit US v. Augustine 12-3269

Decision here.

   Not much to say about this one...

   After another pair of drug dealers were arrested, they rolled on Augustine.  Police used that information to get a warrant for Augustine's house, which led to the discovery of incriminating evidence.  Augustine was arrested, and made some incriminating statements post-Miranda.  He was convicted of two counts of conspiracy to distribute methamphetamine, and appealed his conviction.

   He argued that the warrant was based on an affidavit which did not establish probable cause.  Interestingly, the trial court never decided whether or not the affidavit supported probable cause.  Instead, they decided that the good faith exception rendered the evidence admissible even if the affidavit fell short.  Augustine argued that the affidavit was so devoid of factual support as to render the good faith exception inapplicable.

   The information in the affidavit seemed pretty straightforward to me.  I thought there was PC.  The Tenth Circuit decided not to decide that, but decided to agree with the trial court that even if the affidavit fell short, it was good enough that the good faith exception would apply.  So the evidence was admissible.

   As far as Miranda goes... Augustine waived his rights and told the officers that he was not under the influence of any drugs, and that he was supposed to take some prescription drugs (stuff they prescribe for mental illness).  He apparently seemed sober and coherent during the interrogation, and made a lot of admissions that he probably wished he could take back when his case went to trial.  At a few points during the interrogation, he mentioned that he would like to take his prescription drugs (but never said he wouldn't continue the interview without them).  His argument on appeal was that he actually was under the influence of illegal drugs and that he needed his prescription drugs, and that therefore his Miranda waiver was not knowing, voluntary, or intentional.

   The trial court didn't buy it, and neither did the Tenth Circuit.  Augustine's Miranda waiver was held to be valid.  His convictions were upheld.

Tenth Circuit US v. Serrato 12-8040

Decision here.

   Not much to say about this one, really.  Serrato was one of several drug dealers busted in an ongoing investigation, and one of two who pled not guilty and stood trial together.  He was convicted, and appealed.

   Most of the appeal deals with objections to comments made by the prosecutor during the trial, or with sentence enhancements.  There's a little bit at the end about a traffic stop that Serrato wanted to have suppressed.

   The traffic stop was conducted after law enforcement learned from surveillance that a couple different vans were going to be going to a specific garage for a drug transaction.  Serrato was driving one of the vans.  He was stopped, identified, and released after about ten minutes.

   The Court held that the information from surveillance was enough to support reasonable suspicion that Serrato was involved in criminal activity when he was stopped.  Even if it hadn't been, he was also speeding.  

   Serrato & co's convictions were upheld.

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.

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.

Tenth Circuit Panagoulakos v. Yazzie 13-2003

Decision here.

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

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

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

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

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

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

Tenth Circuit US v. Harris 12-5174

Decision here.

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

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

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

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

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

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

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

   Harris' conviction was affirmed.  

Tenth Circuit Blackmon v. Sutton 12-3199

Decision here.

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

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

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

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

Tenth Circuit US v. Cash 12-7072

Decision here.

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

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

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

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

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

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

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

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

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

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

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

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

Tenth Circuit US v. Ponce 12-5032

Decision here.

   Ofc. Mackenzie was conducting a drug investigation in 2011 (before Jardines was decided).  He received information from a confidential informant that Ponce was selling meth from his residence.  The CI also provided other information about other dealers which Mackenzie knew to be true.  Mackenzie verified the information from the CI by conducting his own surveillance (during which he didn't actually see drugs, but he saw activity which he knew through training to be consistent with drug trafficking), and by comparing it to information received from another informant.  Then he ran a drug dog on the exterior of Ponce's garage, and the dog alerted.  He ran the same dog on 30 other houses in the neighborhood, and the dog did not alert.

   Pretty thorough investigation (especially compared to the embarrassingly half-assed crap the cops in Jardines did).  After all that, he applied for a search warrant.  A subsequent search of Ponce's residence revealed exactly what he thought it would (meth and guns).  Ponce moved to suppress the evidence, arguing that the information in the affidavit didn't amount to probable cause.  His motion to suppress was denied, so he pled guilty and appealed.

   Now that the supreme court has ruled that we can't run dogs on the outside of people's houses without a warrant, Ponce's appeal looks like it has a little bit more of a chance.  And the prosecution (for some reason) conceded that without the dog sniff, the affidavit didn't establish PC.  The Tenth Circuit decided not to decide whether or not the affidavit established PC, and instead turned to the good faith exception.

   As has been discussed in other decisions, the good faith exception to the exclusionary rule means that even if a warrant turns out to have been issued without probable cause, the evidence is still admissible unless one of the following applies: 1- when the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his reckless disregard of the truth; 2- when the issuing magistrate wholly abandons her judicial role; 3- when the affidavit in support of the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; 4- when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid; and 5-when the warrant's flaw results from recurring or systemic police negligence.  If none of those exist, then the evidence won't be suppressed even if a warrant later turns out to be defective.

   In this case, the Tenth didn't decide whether or not the warrant was defective.  They just decided that even if the warrant was defective (which is to say, even if the dog sniff was necessary to establish PC), the police weren't in a position where they should have known that.  The good faith exception applies, the evidence is admissible, and Ponce's conviction stands.

Tenth Circuit US v. Mabry 12-3036

Decision here.

   Mabry was on parole in Kansas, and subject to standard parole conditions.  These included a provision that he was required to seek permission to leave the state, and another that he (and his residence) were subject to search by a parole officer or designated law enforcement officer.  Whilst so restricted, Mabry was contacted in Utah by a highway patrol officer.  He was the passenger in a car which was transporting a lot of marijuana, and although the driver was arrested, Mabry was not.

   When Mabry's PO learned about this, he issued an order for Mabry's arrest.  A parole officer and a couple of cops went to the last address that Mabry had listed as his residence (which was his girlfriend's house).  She answered the door and told them that Mabry was in the shower, but then they saw him walk into the room behind her.  They made entry, arrested Mabry, and then searched the house.  During the search, they found a gun in the basement.  

   Mabry was charged with possessing said gun, and moved to suppress it as the fruit of an illegal search.  The district court denied his motion, so he pled guilty and then appealed.

   The Tenth Circuit held that because parolees have a diminished (or even absent) expectation of privacy, and because the government has an overwhelming need to supervised parolees to prevent them from committing more crimes, the search was valid under the totality of the circumstances.  And although a search of a parolee's home must be reasonable in order to comply with the Fourth Amendment, that kind of search does not have to be based on probable cause (or even reasonable suspicion) if it is specifically authorized by state law.  In Kansas' case, the law requires reasonable suspicion of a parole violation in order to justify this kind of search.  The fact that Mabry was contacted out of state without his permission (and in a vehicle involved in drug trafficking) established reasonable suspicion.

   The denial of the motion to suppress was affirmed, and Mabry's conviction stands.

Tenth Circuit US v. Brooks 11-3317

Decision here.

   As two tellers were opening the Security Bank of Kansas City, the bank was robbed at gunpoint.  The suspect was wearing a mask, and he bound the tellers hand and foot with plastic ties, and got away with more than $200,000.

   One of the tellers got divorced a year later.  After the divorce, her ex-husband told the police that he thought the bank robber was Brooks, the guy his ex-wife had been sleeping with at the time.  Police obtained a DNA profile for Brooks, which turned out to match the suspect DNA which had been recovered from one of the plastic ties (the defense would try unsuccessfully to convince the jury that this was because Brooks and the teller had had sex the night before).  Other evidence also suggested Brooks' guilt: he was flat broke before the robbery, but was seen in possession of large sums of cash in the months following the robbery.  He matched the physical description of the suspect.  And he was in constant phone contact with his lover in the weeks leading up to the robbery (right up to the moment of the robbery), then stopped for three months, and then resumed constant phone contact.

   Brooks was convicted of the robbery.  He appealed his conviction.  The arguments relevant to this blog are: 1- the chain of evidence for the plastic ties was broken, and therefore the DNA should have been suppressed; 2- the testimony of the government's DNA expert should have been suppressed; 3- evidence that he possessed large amounts of cash should have been suppressed because it was irrelevant; and 4- the evidence was insufficient for a reasonable jury to convict him.

   As far as the chain of custody goes, the first responding officer cut the zip ties off of the tellers, and let the ties fall to the ground.  He didn't guard them afterwards, and didn't know who eventually collected them.  The officers who did collect them also testified at the trial, though.  Brooks' argument was that the zip ties could have been unintentionally tampered with during the time between cutting them off of the tellers and collecting them.  The court noted that the chain of custody need not be perfect for evidence to be admissible.  Where the chain of custody has deficiencies, those speak to the weight of the evidence rather than its admissibility.  So the zip ties were admissible.

   Regarding the government's DNA expert (the one who testified that it was extremely unlikely that the DNA on the zip ties was there because of the teller's sexual contact with Brooks), Brooks argued that her testimony should be supressed because she said that she did a "general swab" of the zip ties in her report but testified that she only swabbed the tips of the zip ties because she wanted to obtain suspect DNA rather than victim DNA.  She acknowledged in court that the phrase she used to describe the test might cause a different technician to misunderstand what test she had performed.  The court held that this minor semantic difference didn't merit suppression.

   And the large amounts of cash... Brooks' argument was that his possession of lots of cash months after the robbery was irrelevant because he could have got the money from somewhere else.  Not that there was any evidence presented that he got the money from somewhere else, but he could have.  The court noted that since the robber got away with a pretty substantial amount, it was likely that he would still have a lot of money a few months later.  This evidence was also admitted.

   And although Brooks argued that the evidence against him was insufficient for a conviction, the court described the evidence as "pretty compelling."  His conviction was upheld.

Tenth Circuit US v. Sanchez 12-2084

Decision here.

   I hate reading decisions based on federal drug investigations.  The facts are always so convoluted, and while some of what's being addressed is important to this blog, a lot of it really isn't.

   In this case, Sanchez was not the target of a DEA investigation.  His daughter was.  The DEA got a warrant for what they thought was his daughter's house (based on some faulty information that made it into the search warrant affidavit).  Turned out that it was Sanchez's house, and they found evidence tying him to the drug trafficking conspiracy.  Sanchez was convicted by a jury, we'll fast forward to the appeal.

   Sanchez argued that the evidence should have been suppressed because the warrant contained faulty information.  In order to get a search warrant tossed out for something like that, the defendant has to satisfy both parts of a two prong test: 1- he has to show that the affiant made a false statement knowingly and intentionally, or with reckless disregard for the truth.  2- He has to show that absent the false information, the affidavit would not establish probable cause.  

   In this case, the false information in the warrant was apparently just some minor mistakes of fact as to the height of a fence, the number of security cameras on a residence, and exactly how much of the ongoing surveillance was directed at Sanchez's residence.  And the affidavit supported probable cause even without the mistaken info.  So the warrant was good (enough).

   The court also pointed out that there's no rule that says that properly seized evidence can only be used against someone who was the target of the investigation at the time the search was initiated.  And finally, the decision contains some information about when phone calls can be admitted as evidence, but it's pretty fact-specific and more important to prosecutors than it is to cops, so I'm leaving that alone.

   Sanchez's conviction was upheld.

Tenth Circuit US v. Esquivel-Rios 12-3141

Decision here.

   A Kansas trooper saw Esquivel-Rios driving a van down the highway.  The van was displaying a Colorado temp tag, and the trooper called the tag into dispatch to have it checked against all the various databases that we use for that sort of thing.  The dispatcher informed the trooper that there was no record found for the tag, and that Colorado temp tags usually have no record.  Based solely on the information that there was no record found, the trooper stopped the van.  During the traffic stop, he received consent to search the van and found a hidden compartment with a lot of meth.

   Esquivel-Rios was subsequently convicted of federal drug charges.  At the trial (and in his appeal), he argued that the stop was unreasonable and everything found as a result of the stop should be suppressed.

   The trial court denied his motion to suppress, and the Tenth Circuit sort of decided not to decide.  The Tenth observed that they and other courts have upheld stops based on there being no record of a plate.  The idea behind that is that when a government database for license plates doesn't contain information about a particular license plate being used, it "raises a non-trivial possibility that the tag wasn't lawfully issued in the first place but falsified in some way."  So ordinarily a stop based solely on information from a database is good to go.  The problem is that in this case, the evidence suggests that the problem was likely to be with the database.

   When the dispatch said that records of Colorado temp tags usually don't come back, this suggests that there's some explanation other than wrongdoing on Esquivel-Rios' part.  Maybe Colorado doesn't put temp tags into a database (until recently, Colorado didn't).  Maybe there's some other bug between the Colorado database and the Kansas one.  Or maybe the tag is suspicious and there's just a lot of fake Colorado temp tags in Kansas.  The trial court didn't really look into it.

   The Tenth found that the "no record" issue could go either way.  It could still meet the standard or reasonable suspicion, or it could fall far short of it.  It all depends on facts which weren't explored by the trial court because the trial court just ignored Esquivel-Rios' challenges to the database's reliability.  So rather than decide this case, the Tenth sent it back to the trial court to more fully develop the record as to what the dispatcher meant by "usually," and as to what the trooper's previous experience with Colorado temporary tags has been.

   I bet the dispatcher wishes he could take that remark back now that it's getting picked apart in court.