US Supreme Court Grady v. North Carolina 14-593

Decided 3-30-15.

   As a recidivist sex offender, Grady was court ordered to be subjected to satellite based monitoring for the rest of his life.  Basically, he would have to wear a monitor at all times, which would give the state continuous time-stamped information about his location, and alerts if he either wasn't somewhere he needed to be, or was somewhere he wasn't supposed to be.

   Grady appealed the decision requiring his monitoring all the way to the Supreme Court.  His argument was that if GPS monitoring of someone's car (as in US v. Jones) is a search, then GPS monitoring of their body is also a search.  North Carolina's arguments were pretty convoluted... first they held that because the program is civil in nature, this is not a search.  Then they argued that because Grady didn't present any evidence that the program obtains information, the courts have no way of knowing whether or not it's a search (both arguments seem almost inconceivably stupid to me).

   The Supreme Court held that GPS monitoring of a person is a search, using similar reasoning to what they did in Jones (the GPS monitoring device Grady would be required to wear is essentially a physical intrusion on his property).  It doesn't matter if it's a civil process or a criminal investigation... even home inspectors doing inspections are conducting a search which must comply with the Fourth Amendment.  It also doesn't matter that Grady didn't do enough to explain the program to the Supreme Court... it's goal of obtaining information is evident both from the name of the program (Satellite Based Monitoring) and from the statute authorizing it.

   On the other hand, just because it's a search doesn't mean it's an unreasonable search.  Since the state courts never addressed the reasonableness of it, the Supreme Court remanded the case back to the State to consider whether or not the search is reasonable.  Kinda like telling them to stop skirting the issue, and make a proper decision.

Colorado Court of Appeals People v. Theus-Roberts 12CA0013

Decided 3-26-15

   Theus-Roberts took a cab to a bunch of different places, racking up a $90 fare.  At the end of his big night out, he could only pay $80.  He told the driver that his friend would be along shortly to give him the rest of his money.

   A few minutes later, Theus-Roberts came back, shot the driver in the chest, and took the $80 back.  He fled, the driver called the police, gave them his description, and Theus-Roberts was found hiding in a nearby garage.  An eyewitness identified him in a show-up (the driver survived, and identified Theus-Roberts at trial as the shooter).

   Theus-Roberts was convicted of exactly what you'd expect, but he appealed his conviction.  His argument is that the court should have suppressed the eyewitness identification because the show-up was unduly suggestive.

   The Court of Appeals explains that "A one-onone showup identification may be permissible and reasonable in situations where immediate identification would facilitate an ongoing criminal investigation.  The reasonableness of the showup procedure, however, must also be measured against the potential for irreparable misidentification."  The important question is whether any given show up was unreliable because of being unnecessarily and irreparably suggestive.  Relevant factors include the opportunity of the witness to view the suspect at the time of the 4 crime, the witness's degree of attention, the accuracy of any prior description of the suspect, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.

   In this case, the witness lived across the street from the shooting, looked out her window after hearing the shooting, and described Theus-Roberts by race and by a bag he was carrying (and later found with).  An hour after the shooting, an officer told her that they may or may not have a suspect in custody, and that he wanted her to tell him whether or not someone was the same person she had seen near the cab.  A couple of officers removed Theus-Roberts from the ambulance, and the eyewitness immediately identified him with certainty.

   The trial court had correctly denied Theus-Roberts' motion to suppress the show up.  He had a few other arguments on appeal, but they're more relevant to prosecutors than to cops (and none of them had any merit).  His conviction is upheld.

Colorado Court of Appeals People v. Griego 10CA2609

Decided 3-26-15.

   The facts of this case would've been sufficient to convict Griego of his 7th and 8th DUI, which is what the police charged him with.  But the prosecution randomly decided to change the charges to attempted second degree assault and attempted manslaughter, arguing that by driving while he was drunk he was attempting to kill everyone in the area.

   ...sigh... I like the enthusiasm, but that's crazy.

   Somehow, they got a conviction on that theory.  Griego appealed, and the Court of Appeals held that the prosecution's theory was nonsense and remanded for acquittal on all counts.

Colorado Supreme Court People v. Munoz-Gutierrez 14SA187

Decision here.

   An officer working a drug interdiction assignment pulled Munoz-Gutierrez over for weaving across the fog line.  There was a bit of a language barrier, but they were able to communicate (especially after the arrival of another officer who spoke a little more Spanish, albeit not fluently).

   The cops did that thing where they give someone a warning, tell them they're free to go, and then ask them if they'd mind answering a few more questions.  They asked (in Spanish) if there was anything illegal in the car, and after Munoz-Gutierrez denied that they asked if they could search.  He gave consent (apparently through body language, the decision doesn't specify how).  They brought out a written consent form, but Munoz-Gutierrez's education wasn't really sufficient for him to understand it (although it was in Spanish), and he signed on the wrong line.

   They searched the car and found enough marijuana for it to be illegal even in Colorado.  Munoz-Gutierrez was arrested, but the trial court later found that his consent was invalid because the cops didn't explain to him beforehand that he had the right to refuse.  The people filed an interlocutory appeal.

   Before searching based solely on consent, C.R.S. 16-3-310 requires police officers in Colorado to explain to someone that they are being asked to voluntarily consent to a search and that they have the right to refuse.  It's not something we're required to recite verbatim, and failure to advise a person as required is only considered a factor in whether or not the consent was voluntary.

   In this case, the Colorado Supreme Court held that the trial court incorrectly treated the lack of required advisement as fatal to the voluntariness of a search.  As far as the courts are concerned, the real question is whether the consent is due to unduly coercive conduct by the police which overbears the defendant's will.  Factors which the courts consider include: the age, education, and intelligence of the defendant; the duration, location, and circumstances of the search; the consenting person's state of mind; and anything else that could have affected the defendant's free and unconstrained choice in consenting to the search.

   In this case, the court held that although the police didn't give the proper advisement of Munoz-Gutierrez's right to refuse, and although that factored against them, they still didn't overbear his will.  The order suppressing the search was reversed, and this case was remanded to the trial court for further proceedings.

Tenth Circuit US v. Denson 13-3329

Decision here.

   Denson, an armed robbery convict out on parole, stopped reporting to his probation officer and disappeared.  As we all know, this sort of behavior is heavily frowned on.

   At some point, Denson opened a utility account in Witchita.  Why he used his own name is anyone's guess, but he did.  Police showed up at his address at 8:30 in the morning on a weekday, found the electric meter whirring away, and entered the house.*  Sure enough, Denson was home.  And during a protective sweep, they found a stash of guns. 

   Denson moved to suppress the guns, arguing that the police entry into his house was unlawful, and that even if it was lawful to enter it was not lawful to search the house once he had been arrested, and that even the protective sweep was lawful it was unlawful to seize the guns.

   First, the entry: Under Payton, the police have limited authority to enter the residence of a wanted person if they have reason to believe that the aforementioned wanted person is home.  In the Tenth Circuit, "reason to believe" is taken to mean reasonable suspicion.  In some circuits, it's taken to mean probable cause.  In this decision, the Tenth hinted that they might reconsider and go with probable cause at some point in the future, but they aren't changing their minds just yet.

   In any event, the police had probable cause to believe that Denson was home.  It was his only known residence, he wasn't known to have a job, it was 8:30 in the morning, he wasn't likely to be out and about whilst hiding from the police, and the electric meter was spinning furiously.  Taken together, those facts created a fair probability that Denson would be home (and probable cause is just a fair probability... it's not even necessarily more likely than not).

   Second argument: given that Denson was a known gang member with a violent history who was hiding from the police (and who was known to have a roommate who was also wanted), a protective sweep of the residence was justified.  That said, the police almost blew this one with their stupid little radar.  After all, shouldn't the police have known no one was in the house because their radar told them?

   The Court makes it clear that it'll probably decide that way in the future, but that in this case there just wasn't enough information on the reliability and the capabilities of the radar.  The court didn't know if the radar's ability to see who all was in a house was good enough to dispel the officers' fears that someone else dangerous might be inside.

   Third, Denson argued that the guns weren't readily recognizable as contraband because the cops didn't know if someone else owned the guns.  But felons aren't just prohibited from owning guns, they aren't allowed to possess them (and given Denson's ability to control the guns in his house, he constructively possessed them).  So the guns were readily recognizable as contraband.

   Denson's conviction was upheld.

*The police also used a radar device to see whether or not anyone was in Denson's house, and saw footprints in the snow in the back yard.  The court did not consider these facts.  The only reason that it would have been legal for the police to use the radar or to enter the back yard is if entry were already justified, so it's impossible to use those facts to justify entry.  Sometimes it scares me how little federal agents seem to understand the law... it's like they aren't even trying.  Unless it was local law enforcement pulling this crap, in which case I apologize to the feds.

Colorado Court of Appeals People v. Brown 11CA0556

Decision here.

   Brown appealed his conviction for murdering his wife.  Most of his arguments aren't relevant for this blog, but one of them was interesting.

   The police had obtained a warrant to search Brown's car.  They were surveilling for a couple of hours first.  They saw brown walk up to the car and put a backpack in it, and chose that moment to execute the warrant.  Brown asked to be able to take the backpack out of the car, but the police didn't allow him to, and evidence found in the backpack was later used against him.

   The Court of Appeals upheld the admission of the evidence from the backpack, holding that since it was in the car at the moment of seizure it was within the scope of the warrant.

Tenth Circuit US v. Long 13-5082

Decision here.

   Long was arrested after the police served a search warrant on an apartment being used for drug trafficking (Long was in the apartment at the time, along with a gun, a lot of cash, and a lot of cocaine).  In court, he challenged the affidavit for the search warrant.

   The affidavit relied on a confidential informant who had apparently given reliable information in the past.  Long argued that the affidavit did not establish probable cause because the informant did not name him, and because the police didn't corroborate the information the informant had given about the apartment.  The court held that it was unnecessary for the information to name or describe Long, since the informant asserted that there was cocaine in the apartment and the search warrant was directed at the apartment rather than at Long.  The court also held that because the informant had previously given reliable information, this tip was enough to establish probable cause without additional corroboration.

   Long's conviction was upheld.