Tenth Circuit US v. Romero 13-2019

Decision here.

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

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

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

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

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

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

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

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

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

Tenth Circuit US v. Kamahele 12-4003

Decision here.

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

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

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

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

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

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

Tenth Circuit US v. Pulliam 13-1026

Decision here.

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

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

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

Colorado Court of Appeals People v. Cardenas 11CA1954

Decision here.

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

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

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.