December 17, 2017

Archives for July 26, 2017

Tenth Circuit: Unpublished Opinions, 7/26/2017

On Wednesday, July 26, 2017, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Greene v. Tennessee Board of Judicial Conduct

Case summaries are not provided for unpublished opinions.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

Discovering Discovery: Building Your Case, Deposition Tips, Expert Witnesses, and More

“Reduced to its essence, discovery is the process of identifying, collecting, producing and/or receiving relevant, nonprivileged materials in connection with pending or reasonably foreseeable litigation. With the advent of notice pleading, civil discovery provides access to the relevant information that litigants and their counsel require to make informed decisions about the merits of their case and the potential for settlement.” -Magistrate Judge Craig B. Shaffer

Discovery is a crucial component of every litigation case. In the last 10 years, civil litigation has changed significantly. The proliferation of electronic data and new rules on both the state and federal level create increasingly difficult challenges for preserving, managing, and producing electronically stored information. Conducting discovery outside Colorado has become mainstream as civil litigation has become more national—even global.

This Friday, CBA-CLE will debut the newest title in our litigation library, Discovery in Colorado, at a full-day program, “Discovering Discovery.” Discovery in Colorado is a practical guide to discovery that brings to life the application of the Colorado and Federal Rules of Civil Procedure governing the discovery process. Discovery in Colorado was written by a variety of different practitioners, overseen by Magistrate Judge Nina Y. Wang and Natalie Hanlon Leh, Esq. Attorneys and judges with backgrounds in private, in-house, and government practice authored individual chapters.

Learn different approaches to discovery and hear distinct perspectives from some of the most experienced trial attorneys and judges in Colorado. Each class attendee receives Discovery in Colorado, 1st Edition, as course materials. Explore the ever-changing state of discovery through this valuable course and companion book. Register using the links below, or call (303) 860-0608.

 

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CLE Program: Discovering Discovery

This CLE presentation will occur on Friday, July 28, 2017, at the CLE Large Classroom (1900 Grant St., 3rd Floor) from 8:30 a.m. to 4:45 p.m. Register for the live program here and the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — Video OnDemandMP3 Audio

Tenth Circuit: Officers Executing Warrant Acted in Objectively Reasonable Reliance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Russian on Tuesday, February 21, 2017.

The Tenth Circuit Court of Appeals had to determine if the good faith exception to the exclusionary rule was properly applied in the case where police searched two cell phones belonging to the appellant after his arrest without first obtaining a valid search warrant. At trial, Mr. Russian moved to have evidence obtained from the phones suppressed for lack of particularity. The district court denied the motion, and sentenced Mr. Russian to 137 months’ incarceration. Mr. Russian appealed, claiming that the district court erred in denying his motion to suppress the phone evidence, and claiming that the 137-month sentence was above the maximum permitted by statute.

The case stems from an incident beginning in Missouri, where police received a 911 call concerning a man matching Mr. Russian’s description threatening two women with a machete and handgun. When police arrived, Russian fled, beginning a high-speed chase into Kansas. Upon Russian’s arrest, Deputy Wilson searched Russian, and found a red and black phone in his possession. Deputy Wilson then found a second phone in Russian’s vehicle, both of which he entered into evidence. Deputy Wilson later applied for a warrant to search Russian’s residence, as well as both the contents of both phones already in police possession, The state district court warrant authorized the search of cell phones that could be used to commit the crimes, and described the locations to be searched, but did not authorize the search of the phones already in police possession.

The Fourth Amendment provides that no citizen will be subjected to unreasonable search and seizure. However, the court added, that even these protections are subject to the harmless error rule, where a search may be upheld if the error is so unimportant and insignificant that they may be deemed harmless beyond a reasonable doubt, not requiring the automatic reversal of the conviction. The court stated that a search warrant must, in addition to probable cause, describe with particularity the place to be searched, and the persons or things to be seized. In this case, the court said that there is little doubt that the search warrant was invalid for lack of particularity, as it did not identify the phones or the data on those phones to be searched.

Although the warrant was invalid, the court still upheld the denial of Mr. Russian’s motion to suppress under the good faith exception. The good faith exception applies to an otherwise invalid search warrant where the officer’s reliance on the warrant was objectively reasonable under the circumstances, and asks if a reasonably well-trained officer would have known the search was illegal despite the warrant’s authorization. However, the court noted that the government is not entitled to the exception when the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officer cannot reasonably presume it to be valid.” In analyzing Deputy Wilson’s search, the court determined that because his affidavit specifically described the phones, the warrant referenced the affidavit, and the exclusion of the evidence would not serve the purpose of the exclusionary rule (to prevent police misconduct) the good faith exception applied.

As to Russian’s second claim, the court agreed that district court erred in relying on a guidelines range that improperly took into account a fifteen year old felony conviction that was too old to be included in the sentencing range. The court also agreed with Russian that the court erred in imposing a 76-month sentence, as it is above the 60-month maximum imposed by statute.

The Tenth Circuit affirmed Russian’s convictions, but remanded for resentencing for three of the counts based on the improperly calculated guidelines range.

Tenth Circuit: Unpublished Opinions, 7/25/2017

On Tuesday, July 25, 2017, the Tenth Circuit Court of Appeals issued ten published opinions and six unpublished opinions.

Duncan v. Allbaugh

Columbian Financial Corp. v. Stork

Wilson v. Dowling

Pecha v. Lake

Brown v. Shoe

Webb v. Allbaugh

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