May 27, 2018

Archives for November 23, 2016

Happy Thanksgiving from Colorado Bar Association CLE

Happy Thanksgiving from Colorado Bar Association CLE! We are thankful to all our volunteer authors and speakers. Thank you for contributing your time and expertise for the betterment of Colorado attorneys. We are thankful for our class attendees, book purchasers, and customers also. Thank you for enabling us to provide high-quality CLE programs and publications.

The CBA-CLE offices will be closed on Thursday, November 24, and Friday, November 25, 2016. Our website is always open, though—visit http://cba-cle.org to register for programs, purchase books, or order homestudies.

very-thankful

Colorado Court of Appeals: Exigent Circumstances Justified Warrantless Search of Suspect’s Mouth

The Colorado Court of Appeals issued its opinion in People v. Carr on Thursday, November 17, 2016.

Vehicle—Probable Cause—Non-Consensual Search—Mouth—Unlawful Drugs—Evidence—Suppression—Fourth Amendment.

A police surveillance team identified the vehicle Carr was riding in as possibly being involved in drug sales. Officers observed the vehicle speeding and weaving into another lane and pulled it over. The officer who approached the driver’s side of the vehicle smelled alcohol and marijuana. The officers noticed that Carr was making chewing motions with his jaw and had a golf-ball sized bulge in his cheek. He refused the officers’ commands to spit out the contents of his mouth. The officers forced open Carr’s mouth and removed ten bags of drugs, which later tested positive for cocaine. Carr was charged with various crimes. He moved to suppress all evidence resulting from the search of his mouth. The court denied his motion, and he was ultimately convicted.

On appeal, Carr argued that the nonconsensual search of his mouth violated the Fourth Amendment and the court thus erred in failing to suppress the evidence obtained during that search. In addition to probable cause for the arrest of a suspect, which was not at issue in this case, the Fourth Amendment requires the state to prove three factors to render a warrantless internal body search constitutional: (1) a clear indication that incriminating evidence will be found; (2) exigent circumstances that justify the intrusion and make it impractical to obtain a search warrant; and (3) extraction of the evidence in a reasonable manner and by a reasonable method. Here, there was a clear indication that evidence would be found because the officers believed that Carr was in a vehicle that was suspected to be involved in drug dealing; they saw a large bulge in his mouth; he refused to speak to the officers or reveal what was in his mouth and was trying to chew or swallow what was in his mouth; and the officers had experience or training that indicated that suspects would attempt to swallow drugs. Exigent circumstance justified the search because Carr was attempting to chew and swallow, and it was imperative for the officers to retrieve whatever was in Carr’s mouth to preserve evidence and keep Carr from harming himself. Finally, extraction of the evidence was reasonable. Although the officers used physical force to search Carr’s mouth, they did not force him to undergo any invasive medical procedure or apply force to his throat. The minimal risk to Carr’s health and safety and the intrusion on his privacy and dignity did not outweigh the community’s interest in retrieving the bags of drugs. Therefore, the search of Carr’s mouth did not violate his Fourth Amendment rights.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Death of Insurance Beneficiary Does Not Extinguish Action Where Judgment Entered

The Colorado Court of Appeals issued its opinion in Estate of Casper v. Guarantee Trust Life Insurance Co. on Thursday, November 17, 2016.

Cancer Insurance Policy—Jury Verdict—Punitive Damages—Noneconomic Damages—Judgment—C.R.S. § 14-20-101—Attorney Fees—Actual Damages—C.R.S. § 10-3-1116—Jury Instruction.

Casper bought a cancer insurance policy from defendant, Guarantee Trust Life Insurance Company (GTL). Casper was diagnosed with cancer seven months later, and GTL refused to pay his claims. Casper sued GTL for breach of contract, bad faith breach of an insurance contract, and statutory unreasonable denial of benefits. A jury awarded him punitive and other noneconomic damages. The trial court immediately entered an oral order making the verdict a judgment, but Casper died nine days later, before the court had reduced its oral order entering judgment to a written judgment as required by C.R.C.P. 58. Subsequently, Casper’s estate (Estate) was substituted as plaintiff. The court later entered a judgment for the estate nunc pro tunc to the date of the verdict. The court awarded attorney fees and costs as part of the Estate’s actual damages.

On appeal, GTL argued that as a matter of law, under C.R.S. § 13-20-11 (Colorado’s survival statute), the delay in entering the written judgment meant the Estate was entitled only to the $50,000 awarded as economic damages for the breach of contract claim. Under Colorado law, the death of a plaintiff in a personal injury action extinguishes his entitlement to recover noneconomic and punitive damages. Here, because the verdict resolved the merits of the case, and judgment would necessarily follow, the survival statute did not extinguish Casper’s right to damages.

GTL also asserted that attorney fees and costs awarded by the trial court under C.R.S. § 10-3-1116 do not constitute actual damages upon which the court may base its determination of punitive damages under C.R.S. § 13-21-102(1)(a). Under the plain meaning of C.R.S. § 10-3-1116, which is remedial in nature, reasonable attorney fees and court costs in this case are actual damages and do not constitute penalties or other types of damages.

GTL next asserted that the district court erred by not reducing by two-thirds the supplemental request for attorney fees. Even if apportionment was required, the district court did not abuse its discretion in awarding supplemental fees.

Finally, GTL argued that the trial court erred by instructing the jury on Regulation 4-2-3, which regulates advertising by the insurance industry. The trial court found that the instruction related to Casper’s theory that GTL’s marketing and sale of the insurance policy, through Platinum, was evidence of GTL’s bad faith. The standard of care related to the sale and marketing of the policy was relevant to Casper’s claims, and it is undisputed that the instruction was a correct statement of the law. Therefore, the court did not abuse its discretion in instructing the jury on this regulation.

The judgment was affirmed and the case was remanded to determine the Estate’s appellate fees and costs.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 11/22/2016

On Tuesday, November 22, 2016, the Tenth Circuit Court of Appeals issued one published opinion and seven unpublished opinions.

Hunter v. Hirsig

United States v. Jurado-Barajas

Morris v. Dowling

United States v. Callwood

Granados v. Crowley County Correctional Facility

Dubois v. Brown

Garman v. Garaychochea

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.