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.

Colorado Court of Appeals People v. Zadra 10CA1207

Decision here.

   Zadra was a jail captain at a sheriff's office who listened in on telephone conversations between a prisoner and his attorney, then lied about it in court.  She eventually admitted that during a CBI investigation, and was convicted of official misconduct and perjury.

   On appeal, there was some argument as to how many counts of each offense she could have been convicted of, and whether the evidence was sufficient for a conviction (I don't see why that one was filed, the evidence was obviously sufficient), and some Miranda issues.

   She had been interrogated twice after becoming a suspect, but she only challenged the second interrogation.  She came to the police station unescorted, knowing that she was going to take a polygraph, did so, and then was interrogated by a CBI agent who spoke to her in "fatherly" tones and told her it was important to tell the truth.  No threats were used, no voices raised, the interrogation was mostly one on one and the door was open for most of it.  She cried a lot, asked if she was in trouble, and made some incriminating statements.  At one point near the end of the interrogation, the agent said that he knew she wanted to leave and he'd let her go in a little bit.  She left shortly afterwards, and was arrested seven months later.

   None of that rose to the level of interference associated with formal arrest, even though the interrogation took place in a police station.  And even though the defendant was emotional during the interview and was apparently suffering from some other physical maladies, none of that indicated that her will was overborne by the agent, so her statements were voluntary.  No Miranda violation.

Colorado Court of Appeals People v. Medrano-Bustamante 10CA0791

Decision here.

   Medrano-Bustamante was driving drunk with two passengers, when he was involved in a single-vehicle accident.  One of his passengers (the adult, who was also drunk) suffered a broken femur.  The other passenger (a juvie) died several hours after the accident.  Being a real stand-up guy, Medrano-Bustamante claimed that the dead juvie had been driving.  DNA evidence and the pattern of everybody's injuries said otherwise, though, and Medrano-Bustamante was eventually convicted of DUI, vehicular assault, vehicular homicide, and two counts of hit and run (one for leaving the scene of an accident involving death, the other for leaving the scene of an accident involving serious bodily injury).

   On appeal, Medrano-Bustamante argued that DUI was a lesser included offense of vehicular assault and vehicular homicide.  Another division of the court of appeals had agreed with him in a previous case, but different divisions of the court of appeals aren't bound by each others' decisions.

   This time, the court held that DUI is not a lesser included version of vehicular assault or vehicular homicide, because of an extremely subtle difference in the elements.  On first glance, vehicular assault and vehicular homicide both contain all of the elements of DUI, but in order to be guilty of vehicular assault or homicide a defendant must drive a motor vehicle as that term is defined in the criminal code.  In order to be convicted of DUI, a person must drive a motor vehicle as that term is define in by the Uniform Motor Vehicle Law.  The criminal code definition basically describes anything designed to move someone by land, water, or air (unless supported by tracks or cables), and the traffic code version says any vehicle designed for use on highways.

   Long story short: the difference is minor, but enough that the elements of the offenses aren't actually the same.  So the DUI conviction stands as a separate offense from the vehicular assault and vehicular homicide convictions.  The hit and run convictions, on the other hand, had to be merged.  Hit and run crimes are charged per accident, not per victim.  So instead of charging our hero with one count of leaving the scene of an accident involving death and one of leaving the scene of an accident involving SBI, the prosecution should have charged him with just one count of leaving the scene of an accident involving death.

   Other than the two merged convictions, the trial court's decision 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.

Colorado Court of Appeals People v. Jauch 10CA0588

Decision here.

   Someone's backpack was stolen, along with a computer and a credit card which were in it.  Later, Jauch used the credit card at a gas station and a restaurant.  The police identified her by talking to witnesses who either knew her or described her clothing and vehicle, and by watching surveillance.

   The police obtained a search warrant for Jauch's house.  The warrant identified several items to be seized, including two wallets, a credit card, checks, a rag, receipts, and a turquoise v-neck shirt with ruffles.  The investigator who wrote the affidavit for a search warrant forgot to mention the reason why he wanted to seize the shirt (it was the description given by the witnesses of the suspect's shirt), but the probable cause to search for everything else was clearly stated.

   The police executed their search, and one of the officers assisting with the search found the shirt.  After the investigator affirmed that this was the search he was looking for, the officer seized it.

   Jauch was eventually convicted of theft and identity theft, and appealed her conviction.  She argued that the shirt should have been suppressed since it was not mentioned in the warrant affidavit.  The people argued that the shirt was admissible under the plain view doctrine.

   The court held that although the people didn't establish exactly where in the house the shirt was found (just that it was in the center of one of the rooms), any place that the shirt might have been would also be capable of hiding a wallet or credit card.  The shirt itself was also capable of hiding one of the items mentioned in the warrant affidavit.  So the police had lawful right of access to the shirt during their search.  And the shirt wasn't actually seized when the officer simply lifted it up to show the investigator, it was only seized when Jauch's possessory interest in the shirt was interfered with (which is to say, when the police took it with them when they left).  And since the investigator had probable cause (based on witness statements) to seize the shirt, and since the investigator told the officer to seize the shirt, the seizure of the shirt was lawful under a combination of the plain view doctrine and the collective knowledge doctrine.

   The admission of the evidence and Jauch's conviction were upheld.

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.

Colorado Court of Appeals People v. Johnson 11CA2366

Decision here.

   Charles Ray Johnson escaped from prison in 1975, after being convicted of second degree murder.  He was apparently arrested in 1990 in California for public intoxication, but that went nowhere.  Other than that, he evaded capture until 2007.

   He was convicted of escape, and appealed his conviction.  He argued that the statute of limitations had expired (since his escape was completed over 30 years ago).  The Colorado Court of Appeals ruled that escape is a continuing offense, and that as long as an escaped prisoner has not yet been returned to custody in Colorado, he is still committing the crime of escape.  Accordingly, the statute of limitations didn't start until Johnson was caught in 2007, and his conviction stands.