Colorado Court of Appeals People v. Heywood 11CA2165

Decision here.

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

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

   He was arrested for violating 18-3-405.4(1)(b), which says:

An actor commits internet sexual exploitation
of a child if the actor knowingly importunes,
invites, or entices through communication via
a computer network . . . or instant message, a
person whom the actor knows or believes to be
under fifteen years of age and at least four
years younger than the actor, to . . . [o]bserve
the actor's intimate parts via a computer
network . . . or instant message.

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

Colorado Court of Appeals People v. Nozolino 12CA2308

Decision here.

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

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

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

Colorado Court of Appeals People v. Pifer 11CA2177

Decision here.

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

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

Tenth Circuit US v. Morales 13-3202

Decision here.

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

   Oh, yeah.  And he was a felon.

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

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

Tenth Circuit Leatherwood v. Welker 13-6152

Decision here.

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

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

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

US Supreme Court Riley v. California 13-132

Decision here.

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

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

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

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

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

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

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

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

Tenth Circuit Felders v. Malcom 12-4154

Decision here.

 Dear fellow officers,

   Please don't Gant the fellow officer rule.

  Sincerely,

   The Author of This Blog.

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

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

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

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

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

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

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

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

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

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

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

   Qualified immunity denied.