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.

Colorado Supreme Court Grassi v. People 11SC720

Decision here.

   Grassi, driving whilst drunk, ran his car off the roadway for no apparent reason (other than his drunkenness).  He was seriously hurt in the accident and transported to the hospital where he remained unconscious for several hours.  His passenger was killed.

   Like most calls this big, the investigation involved more than one officer.  There were at least two officers investigating at the scene (one who was an accident reconstructionist, one who was not but was the first responding officer), both of whom concluded that there was no external cause of the accident and that the driver had just followed the fog line off of the roadway, which is something drunks sometimes do.  There was a supervisor, who did a fine job of delegating other tasks.  And there was the officer who the supervisor sent to the hospital, with the instructions to obtain a blood draw if he determined that alcohol was a factor in this accident.

   The officer who went to the hospital was apparently assigned this task before the accident investigation had been completed (which only makes sense).  Even though Grassi was still unconscious, the officer could smell a strong odor of alcohol from his breath.  He ordered a couple of blood draws, both of which were completed after the accident reconstructionist had determined that the accident was caused by Grassi's bad driving.  The blood test later revealed that Grassi was drunk (the decision doesn't tell us just how drunk, but over the legal limit).

   Grassi was convicted of Vehicular Homicide, Manslaughter, and DUI.  He appealed his conviction launching a somewhat mystifying attack on the fellow officer rule.  His argument goes like this: the fellow officer rule allows one cop to act on information from another, but at the time that the third trooper was assigned to go to the hospital to potentially do a blood draw, the accident investigation wasn't completed yet so there was no probable cause.  Also, the officers at the accident scene didn't necessarily communicate all of their findings directly to the one at the hospital.  Therefore, the blood draw was done without probable cause in violation of the Fourth Amendment.

   The Supreme Court explains that the fellow officer rule allows officers to act on information known to other officers related to the same investigation, so long as two requirements are met: 1- the officers have to be acting as part of a coordinated investigation, and 2- the police must collectively possess the information required to justify the action at the time the action is taken.  Given that those two conditions are met, the courts aren't going to nit-pick who told who what when.  The courts also aren't going to ask us to make search and seizure decisions based only on the information available at the time that we were assigned to an investigation (which is what Grassi wanted); instead, we can use the information available at the time that we conduct the search or seizure.

   In this case, the officers were all obviously acting as part of a coordinated investigation.  And the information known to the police at the time supported probable cause, so the blood draw was good and Grassi's conviction was affirmed.

   That "coordinated investigation" part is what differentiates this case from wall stops.  In a case of a wall stop (where investigating officers tell another officer to find their own reason to stop someone who they think is a Bad Guy), the officer making the stop is specifically NOT acting as part of a coordinated investigation.  By withholding their suspicions (or by telling the officer to ignore their suspicions and find his own), the investigators are specifically cutting the officer out of the coordinated investigation, and so the fellow officer rule can not be used to justify wall stops (that's from a case where the officer making the stop tried to justify the stop by using a traffic violation that wasn't actually a violation).  

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.