October 19, 2017

Tenth Circuit: Unpublished Opinions, 9/14/2017

On Thursday, September 14, 2017, the Tenth Circuit Court of Appeals issued no published opinion and two unpublished opinions.

United States v. Jackson

Jimenez v. Board of County Commissioners of Hidalgo County

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 9/13/2017

On Wednesday, September 13, 2017, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Bruscino v. True

Davis v. Schnurr

United States v. Niles

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 9/12/2017

On Tuesday, September 12, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Garcia

United States v. Contreras

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 9/11/2017

On Monday, September 11, 2017, the Tenth Circuit Court of Appeals issued three published opinions and one unpublished opinion.

Whiteside v. McCollum

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Unpublished Opinions, 9/8/2017

On Friday, September 8, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Malone v. Board of County Commissioners

Miles v. Conrad

Nash v. Wal-Mart Stores, Inc.

Case summaries are not provided for unpublished opinions.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

Tenth Circuit: Protective Sweep Not Permissible Absent Suspicion of Another Person Hiding in Home

The Tenth Circuit Court of Appeals published its opinion in United States v. Nelson on Thursday, August 17, 2017.

A warrant was issued for the arrest of Stephen M. Nelson after he violated terms of his probation. Although Nelson’s whereabouts were originally unknown, the United States Marshals Service were informed that Nelson often spent time at a home owned by Antonio Bradley. Bradley was instructed to inform the Deputy Marshal when Nelson arrived at his home, which Bradley ultimately did, giving consent for deputy marshals to “go inside and search for” Nelson.

Upon entry, the deputies searched three of the four levels of the home before one deputy saw movement on the first floor. One deputy began shouting for Nelson to come out and show himself. After Nelson complied with the orders, he was put into custody and brought to the second floor as one deputy searched the first floor. The deputy found two firearms under a pile of clothing on a bed. Because Nelson had two previous felony convictions, the government charged him with possession of a firearm by a felon.

Nelson moved to suppress the firearms charge, arguing that the deputies violated the Fourth Amendment by continuing to search the residence after arresting him. In response, the government made two arguments relevant on appeal: (1) Bradley, the owner of the residence, consented to the search; and (2) the deputy lawfully searched the first level under the protective-sweep doctrine. Under the first exception to the general rule that police must obtain a warrant to search a home, the police may, in conjunction with an arrest in a home, “as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” Under the second exception, police may conduct a “protective sweep” beyond areas immediately adjoining the arrest if there are “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

The district court concluded that the protective sweep was valid under the second prong. Nelson appeals, arguing that the district court erred in relying on the second prong because the deputy had no reason to believe that there was a third person hiding in the residence.

This court holds that under the second prong, the government is required to articulate specific facts giving rise to the inference of a dangerous third person’s presence. There could always be a dangerous person concealed within a structure, but that cannot justify a protective sweep. The government argues that the deputies were informed that there was another person in the home, which, this court finds, would be the sort of specific, articulable information that might have permitted the deputy to search the first level after arresting Nelson; however, for that information to be relevant, the deputy had to have it before he conducted the protective sweep, which he did not. The court found that the first-level search was not a valid protective sweep under the second prong.

Next, the government argues that the first prong validates the first-level search under two theories: (1) the deputies arrested Nelson on the first level, so the search of the bed on that level occurred immediately adjacent to the arrest; and (2) even if the deputies arrested Nelson on the second level, the first level nevertheless immediately adjoins the second level. This court declines to consider the arguments, as the government failed to make the specific arguments below, and courts do not generally address arguments presented for the first time on appeal.

The government then argues that Owens’ search “was close enough to the line of validity that an objectively reasonable officer would have acted” in the same way. The court declines to consider this argument because the Supreme Court has “limited [the good-faith] exception to circumstances where someone other than a police officer has made the mistaken determination that resulted in the Fourth Amendment violation.” The government neither suggests that the deputies relied on a third party’s mistake in deciding to search the first level, nor explains why this case might present the “very unusual circumstances” that would convince us to “extend th[e] good-faith exception beyond its pedigree.”

Finally, the government argues that Bradley consented to a search of his entire residence. Whether a search remains within the boundaries of the consent is a question of fact to be determined from the totality of the circumstances by the trial court. Although the government raised this argument below, the district court declined to conduct the fact finding necessary for us to resolve this issue on appeal. We therefore remand for it to do so.

The Tenth Circuit VACATED the district court’s order denying Nelson’s motion to suppress and REMANDED for the district court to determine whether the deputies exceeded the scope of Bradley’s consent when they continued searching his residence after they arrested Nelson.

Tenth Circuit: Unpublished Opinions, 9/7/2017

On Thursday, September 7, 2017, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 9/6/2017

On Wednesday, September 6, 2017, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

United States v. Cortes-Ponce

United States v. Patton

Staples v. Maye

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

Public Comment Period Open for 2018 10th Circuit Local Rules

On Tuesday, September 5, 2017, the Tenth Circuit Court of Appeals released its 2018 local rules for public comment. Comments will be accepted through October 31, 2017. A final version of the new rules will be posted on the Tenth Circuit’s website on December 1, 2017, and the rules will be effective January 1, 2018. A memo describing the changes to the local rules is available here, and a redline of the rule change is available here.

Effective December 31, 2017, two changes will be made to the Federal Rules of Appellate Procedure. Rule 4(a)(4)(B)(iii) will be changed to re-insert a sentence confirming that no fees are due when an amended notice of appeal is filed. Additionally, Rule 28.1(e)(3) will be deleted to correct a scrivener’s error; the rule should have been deleted last year.

Comments regarding the rule change may be submitted to the court clerk via email.

Tenth Circuit: Unpublished Opinions, 9/5/2017

On Tuesday, September 5, 2017, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Lubio

Kapordelis v. Fox

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

Tenth Circuit: Unpublished Opinions, 9/1/2017

On Friday, September 1, 2017, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Clark v. City of Shawnee, Kansas

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

Tenth Circuit: Unpublished Opinions, 8/31/2017

On Thursday, August 31, 2017, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Stanton v. Unknown Agent or Agency

Webb v. State of Utah

Webster v. Shulkin

Hetronic International, Inc. v. Rempe

United States v. Brown

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