June 30, 2015

Tenth Circuit: Totality of Circumstances Provides Reasonable Suspicion for Extended Traffic Stop

The Tenth Circuit Court of Appeals issued its opinion in United States v. Pettit on Wednesday, May 13, 2015.

Michael Pettit was pulled over in Utah after crossing a highway’s fog line multiple times. During the traffic stop, Pettit seemed excessively nervous, produced a suspended Missouri driver’s license after passing over a California license, and reported unusual travel plans to the trooper. The trooper asked permission to search the trunk of the car, which Pettit granted, and conducted a cursory pat-down search of the luggage, finding nothing. The trooper checked Pettit’s licenses, discovered they were both suspended, and completed the citation paperwork, but instead of returning the citation and license to Pettit, the trooper decided to question him further. He requested consent to search the entire car, which Pettit granted, and soon a drug-sniffing dog arrived and alerted to the presence of drugs. Over 2.5 kilograms of cocaine was found hidden in a spare tire in the trunk. Pettit was indicted on one count of possession of cocaine with intent to distribute and was found guilty by a jury. He was sentenced to 10 years’ imprisonment followed by eight years’ supervised release. He appealed the district court’s denial of his motion to suppress the evidence uncovered after the trooper completed the citation.

Pettit contended the trooper unlawfully extended the traffic stop based on “hunches and unjustified generalizations.” The parties agree that the initial traffic stop was lawful since Pettit crossed the fog line multiple times, and they agree that the initial stop ended when the trooper returned with the completed citation. However, since the trooper did not return Pettit’s license and registration at that time, the encounter did not become consensual. The parties disagree about whether there was reasonable suspicion justifying the continuation of the traffic stop at that time. The Tenth Circuit evaluated each factor supporting reasonable suspicion separately and in aggregate.

Pettit first argued his nervousness could not form the basis for reasonable suspicion. However, the Tenth Circuit examined the record and found that the trooper testified with particularity about the excessive nature of Pettit’s nervousness, including that his lower body would not stop shaking, Pettit said twice within 25 seconds that the officer was making him nervous, and his hand was shaking as he gave the trooper his license. The Tenth Circuit next addressed Pettit’s unusual travel plans. Although travel plans in themselves may not necessarily form the basis for reasonable suspicion, the court found that prior to the citation’s completion, the trooper had discovered Pettit was driving cross-country in a vehicle registered to an absent third party, which is consistent with drug trafficking. Next, Pettit argued that the two suspended licenses could not have given rise to reasonable suspicion, but the Tenth Circuit again disagreed, finding the licenses alone could have contributed to the formation of an objectively reasonable suspicion of illegal activity, and could also have heightened the officer’s suspicion about Pettit’s unusual travel plans. Finally, Pettit argued that the officer’s initial fruitless search militated against a finding of reasonable suspicion, but the Tenth Circuit again disagreed, finding the search was only cursory and occurred before much of the officer’s questioning.

Based on the totality of the circumstances, the Tenth Circuit found no error in the district court’s denial of Pettit’s motion to suppress, and found the officer had reasonable suspicion to extend the traffic stop.

Tenth Circuit: Excluding Evidence Based on Search Shown Later to be Legal Exacts High Toll on Justice System

The Tenth Circuit Court of Appeals issued its opinion in United States v. Huff on Tuesday, April 14, 2015.

A vehicle stopped at an intersection over the median line, then backed up and stopped the vehicle correctly. Two Kansas City police officers witnessed the violation and initiated a traffic stop. The officers approached on either side of the vehicle, and the passenger-side officer spotted a handgun under the driver’s seat as he approached. The officers ordered the two men to put their hands on the dash, but the driver, Dana Huff, made movements toward the center console that led the officers to believe he was about to drive away. The passenger-side officer opened the door, reached into the car, and removed the keys from the ignition. He spotted another weapon, a sawed-off shotgun, when he opened the door. The officers removed the men from the vehicle and Huff was subsequently indicted on one count of being a felon in possession of a firearm and one count of possession of an unregistered short-barreled rifle.

At trial, Huff sought to suppress evidence of the firearms, arguing the officers lacked reasonable suspicion of criminal activity when searching his vehicle, and also arguing that they unlawfully arrested him without a warrant and without probable cause to believe he had committed a crime. The trial court held the initial stop to be lawful because of the moving violation, and held that the officer who removed the keys from the vehicle acted lawfully, but granted the motion to suppress the firearm evidence because at the time of the arrest the officers had found no evidence of a legal violation. The government moved to reconsider suppression, citing a Kansas City municipal ordinance that prohibits transporting uncased loaded weapons. The trial court granted the government’s motion and found the officers had probable cause for the arrest. A jury convicted Huff of being a felon in possession, but did not convict on the unregistered rifle count. Huff appealed.

The Tenth Circuit first considered whether the district court properly granted the government’s motion to reconsider. Huff argued the government provided no excuse for its failure to bring the municipal ordinance to the trial court’s attention, but the Tenth Circuit found it need not do so. The government’s motion for reconsideration related to an omission of a legal argument, not the failure to present evidence on a particular issue, so the trial court concluded there was no police misconduct to deter by suppressing the evidence. Revealing a circuit split on the issue of how district courts should handle motions to reconsider suppression orders, the Tenth Circuit found persuasive the reasoning of the Second, Fifth, Seventh, and Ninth Circuits, which do not require a bright-line justification rule. Citing Supreme Court precedent, the Tenth Circuit found that application of the exclusionary rule provides no meaningful deterrence when suppressed evidence later turns out to have been legally obtained, and instead exacts a high toll on the justice system by potentially allowing guilty defendants to go free.

The Tenth Circuit next evaluated Huff’s argument that the officers arrested him without probable cause. Huff contended that because the officer who reached into the vehicle and removed his keys did not specifically cite the municipal ordinance in his testimony, it seems unlikely that the officer’s action was based on that ordinance and therefore the officer lacked probable cause. Again following Supreme Court precedent, the Tenth Circuit found these arguments foreclosed, since an officer’s subjective reason for making an arrest may be different from the criminal offense from which probable cause arises. Upon seeing the uncased weapon, the officers in this case had probable cause to conduct a search of the vehicle and arrest Huff based on the weapons violation.

The Tenth Circuit affirmed the judgment of the district court.

Colorado Court of Appeals: Bond Condition Does Not Impermissibly Impair Defendant’s Right to Parent his Children

The Colorado Court of Appeals issued its opinion in People v. Fallis on Thursday, June 4, 2015.

Bond Conditions—Right to Parent.

A Weld County grand jury indicted petitioner for second-degree murder of his wife. The trial court released petitioner on bond. One of the bond conditions was that petitioner remain in Colorado during the pendency of this criminal case. Petitioner filed a motion to reconsider the bond condition, which was denied.

On appeal, petitioner argued that the trial court transgressed on his presumption of innocence in setting the bond condition and unconstitutionally interfered with his right to parent his children, who reside in Indiana. The court did not treat petitioner as guilty of the charged offense; instead, the court properly considered the nature of the charged offense and the penalty that would be imposed if he was found guilty beyond a reasonable doubt. Further, the court did not limit petitioner’s right to parent his children. Any such restrictions arise from circumstances outside the trial court’s control: petitioner’s decision to move himself and his children to Indiana after his wife’s death, and the temporary decision of an Indiana court prohibiting the children from being removed from Indiana. Accordingly, the court did not abuse its discretion in imposing the bond condition. The petition for review of the bail order was dismissed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: SORNA is a Proper Exercise of Congress’s Commerce Clause Power

The Tenth Circuit Court of Appeals issued its opinion in United States v. White on Monday, April 6, 2015.

James White took indecent liberties with the 7-year-old daughter of his girlfriend in North Carolina in 2005. When the Sex Offender Registration and Notification Act (SORNA) was implemented in 2007, it applied to all convictions, including those that occurred prior to its passage. In 2013, Mr. White moved from Oklahoma to Texas without updating his SORNA registration or registering in Texas. He was charged in Oklahoma with failing to register as a sex offender. Mr. White moved to dismiss the indictment, arguing that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. The district court denied his motion, and Mr. White entered a conditional guilty plea, reserving his right to appeal the denial of the motion to dismiss and his sentence.

The district court adopted the probation office’s Presentence Investigation Report (PSR), which treated Mr. White as a Tier III offender and assigned an offense level of 13 after credits. His sentencing range was 18 to 24 months, and the district court sentenced him to 18 months, overruling his objection to the tier classification. The district court also imposed special conditions of supervised release, including prohibiting Mr. White from being at a residence where any person under the age of 18 reside without prior approval from the probation office and requiring a responsible adult who was aware of Mr. White’s history to be present at all such approved visits. Mr. White timely appealed, reiterating his argument that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. Mr. White also appealed his sentence, arguing he was incorrectly classified as a Tier III offender and challenging the special conditions.

The Tenth Circuit first addressed the Commerce Clause argument, noting it rejected a similar argument in United States v. Hinckley. Mr. White argued that Hinckley was wrongly decided and that it was superseded by the Supreme Court in National Federation of Independent Businesses v. Sebelius (NFIB). The Tenth Circuit first noted that in Hinckley it held the third prong of the Commerce Clause was unnecessary to determine SORNA’s constitutionality since it was confirmed by the first two prongs. Next, the Tenth Circuit examined NFIB in detail, distinguishing its holding in Hinckley because NFIB discussed only the third prong of the Commerce Clause. The Tenth Circuit found that SORNA is a proper exercise of Congress’s Commerce Clause power.

Turning next to Mr. White’s argument that SORNA violated the Ex Post Facto Clause, the Tenth Circuit similarly disagreed, relying on prior Tenth Circuit precedent in United States v. Lawrance, which squarely addressed the same issue. Lawrance upheld SORNA because it is a regulatory statute and criminal penalties apply only for future conduct, not retroactively. The Tenth Circuit then turned to Mr. White’s argument that SORNA violates the Tenth Amendment by directing state officials to implement a federally mandated program. The Tenth Circuit found no constitutional violation, because states retain the authority to opt-out of regulation under SORNA even if they must forego federal funding to do so.

Mr. White’s fourth contention on appeal averred that he was wrongly classified as a Tier III offender and therefore his sentence is procedurally unreasonable. The Tenth Circuit agreed. The Tenth Circuit found the district court should have applied a categorical approach in order to determine Mr. White’s sentencing tier, but it instead applied a circumstance-specific approach, rendering Mr. White’s sentence procedurally unreasonable and requiring reversal. On remand, the Tenth Circuit directed the district court to classify Mr. White as a Tier I offender. The Tenth Circuit addressed Mr. White’s arguments related to the special conditions in order to guide the district court on remand, and noted that further findings were necessary to determine whether Mr. White had a parental or parental-like relationship with his minor grandchildren and nieces that would require express findings of compelling circumstances.

The Tenth Circuit affirmed the district court’s denial of Mr. White’s motion to dismiss but reversed his sentence, remanding for further findings.

Colorado Supreme Court: Debt Services Company Cannot Avoid DMSA Regulation by Associating with Attorneys

The Colorado Supreme Court issued its opinion in Coffman v. Williamson on Tuesday, May 26, 2015.

Uniform Debt-Management Services Act—Legal Services Exemption—CRS § 12-14.5-202(10).

The Supreme Court examined the legal services exemption in the Uniform Debt-Management Services Act (UDMSA) to determine whether the original version of the exemption applies to Morgan Drexen, Inc., a company of non-lawyers. The Court also analyzed whether the amended version of the exemption violates the separation of powers doctrine in the Colorado Constitution and the Commerce Clause and Privileges and Immunities Clause in the U.S. Constitution because certain out-of-state attorneys may be subject to regulation under the UDMSA.

The Court held that the trial court erred by concluding that Morgan Drexen’s services fall within the scope of the legal services exemption in the original UDMSA, CRS § 12-14.5-202(10)(A). The original exemption encompasses non-lawyer assistants; however, Morgan Drexen’s activity here does not fall within the scope of that exemption because it performs substantive debt-management services without meaningful instruction and supervision by an attorney. The Court also held that the amended UDMSA does not violate the separation of powers doctrine in Article III of the Colorado Constitution or the Commerce and Privileges and Immunities Clauses of the U.S. Constitution. The Court reversed the trial court’s order and remanded that case for further proceedings consistent with this opinion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Bills Regarding Community Association Manager Licensure, Peace Officer Transparency, and More Signed

On Wednesday, May 20, 2015, Governor Hickenlooper signed 14 bills into law. To date, he has signed 241 bills into law this legislative session. The bills signed Wednesday are summarized here.

  • HB 15-1323 – Concerning Assessments in Public Schools, and, in Connection Therewith, Codifying the Consensus Recommendations of the Standards and Assessments Task Force Created in House Bill 14-1202, and Reducing an Appropriation, by Reps. John Buckner & Jim Wilson and Sens. Chris Holbert & Andy Kerr. The bill modifies the system of statewide assessments in English language arts.
  • SB 15-056 – Concerning Reducing the Frequency of Administering the Statewide Assessment in Social Studies and, in Connection Therewith, Making an Appropriation, by Sen. Andy Kerr and Rep. Tracy Kraft-Tharp. The bill eliminates the requirement that each public school administer an assessment in social studies and instead allows school districts to administer the test in a representative sampling of schools.
  • HB 15-1317 – Concerning Pay for Success Contracts, by Reps. Alec Garnett & Bob Rankin and Sens. Michael Johnston & Beth Martinez Humenik. The bill creates “pay for success” contracts, into which the Office of State Planning and Budgeting can enter to increase economic opportunity and improve living conditions.
  • HB 15-1129 – Concerning Disaster Prediction and Decision Support Systems by the Department of Public Safety, and, in Connection Therewith, Making an Appropriation, by Rep. Tracy Kraft-Tharp and Sen. Ellen Roberts. The bill requires the Division of Fire Prevention and Control to develop systems to predict disasters, specifically wildfires.
  • HB 15-1344 – Concerning the Financing of State Capital Construction Projects that are Included in the National Western Center or Capitol Complex Master Plans, and, in Connection Therewith, Authorizing the State to Enter Into Lease-Purchase Agreements to Finance Facilities for Colorado State University that are Included in the National Western Master Plan, Creating the National Western Center Trust Fund, and Creating a Capitol Complex Master Plan Implementation Fund as a Funding Source for Projects that are Included in the Capitol Complex Master Plan, by Reps. Crisanta Duran & Jon Becker and Sens. Jerry Sonnenberg & Pat Steadman. The bill authorizes the state treasurer to enter into lease-purchase agreements with CSU to construct facilities at the National Western Complex and CSU’s main campus.
  • HB 15-1285 – Concerning Use of Body-Worn Cameras by Law Enforcement Officers and, in Connection Therewith, Establishing a Grant Program and a Study Group to Recommend Policies on the Use of Body-Worn Cameras and Making an Appropriation, by Reps. Daniel Kagan & Angela Williams and Sens. John Cooke & Jessie Ulibarri. The bill creates the body-worn camera fund to purchase body-worn cameras and train officers in their use, as well as study best practices.
  • HB 15-1287 – Concerning Measures to Improve Peace Officer Training, by Rep. Angela Williams and Sen. John Cooke. The bill expands the scope of the Peace Officers Standards and Training Board in the Department of Law.
  • HB 15-1290 – Concerning Prohibiting a Peace Officer from Interfering with a Person Lawfully Recording a Peace Officer-Involved Incident, by Reps. Joseph Salazar & Daneya Esgar and Sens. Lucia Guzman & David Balmer. The bill specifies that people have the lawful right to record officer-involved incidents.
  • HB 15-1303 – Concerning Eliminating the Application of Certain Sentencing Provisions to Certain Persons who are Convicted of Assault in the Second Degree, by Rep. Jovan Melton and Sen. Kevin Lundberg. The bill removes mandatory crime of violence sentencing for assault against first responders.
  • SB 15-217 – Concerning Data Collection Related to Peace Officer-Involved Shootings of a Person, and, in Connection Therewith, Making an Appropriation, by Sens. Ellen Roberts & John Cooke and Rep. Angela Williams. The bill creates a process for public reporting of specified data concerning officer-involved shootings.
  • SB 15-218 – Concerning Requiring a Law Enforcement Agency to Disclose Whether a Peace Officer has Made a Knowing Misrepresentation in Certain Settings, by Sens. Ellen Roberts & John Cooke and Rep. Angela Williams. The bill requires a law enforcement agency to report any knowing instance of misrepresentation by a peace officer to the district attorney.
  • SB 15-219 – Concerning Measures to Provide Additional Transparency to Peace Officer-Involved Shootings, by Sens. John Cooke & Ellen Roberts and Rep. Joseph Salazar. The bill requires local law enforcement agencies to make public its protocols regarding contacting other agencies following officer-involved shootings.
  • HB 15-1262 – Concerning Separate Legal Entities Established by a Contract Between Two or More Political Subdivisions of the State, and, in Connection Therewith, Clarifying the Legal Status and Scope of Powers of Such an Entity, by Rep. Paul Rosenthal and Sen. David Balmer. The bill specifies the legal status and powers of an entity formed by two or more governments to provide public improvements.
  • HB 15-1343 – Concerning a Streamlined Process to Simplify the Licensure of Persons who Manage the Affairs of Common Interest Communities Under the “Colorado Common Interest Ownership Act”, and, in Connection Therewith, Making an Appropriation, by Reps. Angela Williams & Dan Thurlow and Sens. Nancy Todd & David Balmer. The bill makes several changes to the community association manager licensure program.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Error for Trial Court to Deny Defendant’s Request to Represent Himself

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, May 11, 2015.

Murder—Trespass—Criminal Mischief—Right to Counsel—Sixth Amendment—Waiver—Circumstantial Evidence.

A jury found defendant guilty of first-degree murder, trespass, and criminal mischief; the district court sentenced him to life in prison. A division of the Court of Appeals reversed the judgment due to instructional error and remanded the case for a new trial. The court thereafter denied defendant’s request to represent himself at the second trial, finding that although the request was made voluntarily, it was not made knowingly and intelligently. Defendant was represented by alternative defense counsel (ADC) throughout the second trial, and the jury returned guilty verdicts on all three charges.

On appeal, defendant argued that the district court violated his right to represent himself. The right to self-representation is guaranteed by the Sixth Amendment to the U.S. Constitution. However, a defendant must show that he or she “knowingly and intelligently” relinquishes the benefits of representation by counsel. The court must honor a defendant’s request to self-represent if it is satisfied that defendant knows what he or she is doing and understands the consequences. Here, the record shows that the district court conducted a thorough and comprehensive inquiry of defendant; defendant’s requests to proceed pro se were unequivocal and not made for the purpose of delay or tactical advantage; and defendant demonstrated through his responses that he was knowingly and intelligently waiving his right to counsel. Under these circumstances, the court erred in denying defendant the right to represent himself. The conviction was therefore reversed and the case was remanded for a new trial.

Defendant also argued that the evidence was not sufficient to support his convictions for trespass and criminal mischief. Although no direct evidence established that defendant committed trespass and criminal mischief, the circumstantial evidence that he (1) sexually assaulted his girlfriend two nights before the vandalism; (2) knew where the victim (his girlfriend’s best friend) lived in Steamboat Springs; and (3) rented a car and drove approximately 400 miles the night of the vandalism (enough for a round trip to Steamboat Springs) was sufficient to prove beyond a reasonable doubt that he committed these crimes. Thus, he may be retried on these charges.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Qualified Immunity Improperly Denied to Officers Whose Conduct Not Clearly Prohibited by Established Law

The Tenth Circuit Court of Appeals issued its opinion in Quinn v. Young on Friday, March 13, 2015.

Plaintiffs John Quinn and Lavern Gonzalez were arrested after a sting operation. The Albuquerque Police Department (APD) had organized a sting (called the “Tact Plan”) in which they left a backpack containing alcohol, cigarettes, and a laptop next to an ATM and waited to see who would take it. Quinn, Gonzalez, and their child approached the backpack and conversed. The child took the backpack and the three went to a local diner. The police followed. At the diner, Gonzalez opened the backpack and examined its contents. When she opened the laptop, the APD logo appeared and officers arrested Quinn and Gonzalez. They were detained for approximately two days.

Plaintiffs filed a complaint in New Mexico’s federal district court against the officers, Sergeant Armijo, the APD chief, the APD, four APD supervisors, and the City of Albuquerque (collectively, defendants). Plaintiffs alleged that Defendants’ conduct, as well as the Tact Plan, violated their Fourth Amendment right to be free from unlawful seizure under § 1983. Plaintiffs also alleged entrapment and violation of their substantive due process rights by causing them embarrassment and humiliation. Defendants responded with a summary judgment motion, arguing the officers were entitled to qualified immunity, Plaintiffs had stated no constitutional violation by a municipal employee, and Plaintiffs had stated no actionable claim against the police chief or APD.

The district court granted Defendants’ motion in part and denied it in part, finding Plaintiffs had established a genuine issue of material fact as to whether there was probable cause for their arrest. The district court ruled that the officers should have been on notice that they could not arrest for larceny without probable cause and denied qualified immunity on Plaintiffs’ Fourth Amendment claim. Without making requisite findings, the district court denied qualified immunity on all Plaintiffs’ claims, and it did not articulate a basis for ruling on the entrapment claim. The officers timely appealed.

The Tenth Circuit first addressed the Fourth Amendment claim, evaluating whether the officers had probable cause to arrest Plaintiffs for larceny following the sting operation and whether clearly established law at the time of the offense would have placed a reasonable, similarly situated police officer on notice that no probable cause existed. Addressing the second question first, the Tenth Circuit found that any constitutional violation would not have been apparent based on the clearly established law existing at the time of the arrest, and the officers should have been granted qualified immunity. Finding the lack of on-point caselaw significant, the Tenth Circuit evaluated jurisprudence on non-sting larceny cases and found the officers would not have had fair warning that their arrests lacked probable cause. Additionally, two cases decided in 2013—three years after the arrests in issue here—also determined there was a lack of caselaw regarding the constitutionality of sting operations, supporting the Tenth Circuit’s position that the officers would not have had fair warning about the constitutionality of their arrests.

The Tenth Circuit next evaluated the officers’ challenge to the district court’s denial of qualified immunity on the entrapment, malicious prosecution, and due process claims. Recognizing that the district court “painted with broad strokes,” the Tenth Circuit addressed these points. The Tenth Circuit concluded that the entrapment claim was not properly before it on appeal, since Plaintiffs only named the government and not the officers in their entrapment claim, and dismissed it for lack of jurisdiction. The Tenth Circuit likewise exercised its discretion and declined to address the malicious prosecution and due process claims, opting instead for a limited remand with instructions for the district court to explicitly address whether the officers are entitled to qualified immunity on the malicious prosecution and due process claims and then rule on the claims based on the findings.

The Tenth Circuit reversed the summary judgment on the officers’ qualified immunity claim and directed the district court to enter judgment in favor of the officers, dismissed the appeal related to the entrapment claim for lack of jurisdiction, and remanded the malicious prosecution and due process claims with instructions.

Tenth Circuit: No Sixth Amendment Violation for Long Delay but Defendant’s Speedy Trial Act Rights were Violated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.

Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.

The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.

Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.

Colorado Court of Appeals: Admission of Voice Exemplar Did Not Violate Right Against Self-Incrimination

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, April 9, 2015.

Voice Identification—Self-Incrimination—Physical Evidence—Due Process—CRE 403—Prosecutorial Misconduct.

While at a public park, an undercover police officer who was wearing a wire bought marijuana from a man who was later identified as Ortega. At trial, the prosecutor moved to have Ortega read a statement to allow the jury the opportunity to match his voice with the person speaking on the recording of the drug deal.

On appeal, Ortega argued that the voice identification procedure violated his right against self-incrimination, the right to due process, and CRE 403. The voice exemplar provided by defendant was physical evidence and not testimonial. Therefore, the procedure did not violate Ortega’s right against self-incrimination. Additionally, although the jurors had not seen or heard Ortega before trial, they listened to the officer’s and detective’s testimony describing their out-of-court identifications of Ortega. This testimony gave them “an independent basis” for identifying Ortega as the seller. Therefore, the totality of the circumstances indicates that the identification procedure did not violate Ortega’s right to due process. Finally, the trial court’s determination that the voice exemplar posed a minimal risk of unfair prejudice was not “manifestly arbitrary, unreasonable, or unfair.”

Ortega also argued that the prosecutor’s comments during closing argument appealed to the jurors’ fears and concerns for public safety, thus denying him a fair trial. The prosecutor’s comments were an improper attempt to persuade the jurors to convict defendant “in order to combat evil for the community.” However, because the comment was an isolated incident in an otherwise proper closing argument, the error was harmless.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Use of Force Against Physically and Mentally Unstable Person Excessive so No Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Aldaba v. Pickens on Wednesday, February 4, 2015.

Johnny Leija went to a hospital in Oklahoma and was diagnosed with dehydration and severe pneumonia in both lungs, causing hypoxia (low oxygen levels, known to cause altered mental status). He was pleasant when he was admitted at 11 a.m., but by 6 p.m. his behavior had changed—he was complaining of extreme thirst and a nurse discovered he had disconnected his oxygen and cut his IV, and he was bleeding from the arms. The nurse reconnected the IV and the oxygen, but Leija seemed confused and anxious. Leija became increasingly aggressive and disoriented, the doctor was increasingly concerned for his health due to the behavioral and mental status changes, and eventually law enforcement was called “for help with a disturbed patient.”

Leija, who had willingly come to the hospital, exited his hospital room and was walking toward the exit when law enforcement arrived. The doctor expressed concern that Leija could die if he left the hospital, given the severity of his symptoms. The officers tried to persuade Leija to return to his room, but he was agitated and insisted the nurses were trying to kill him. The officers repeatedly tried to get Leija to his knees and warned him they would use a taser. Leija removed his IVs and shook his arms, stating “this is my blood.” A deputy fired the taser, striking Leija in the torso, but it appeared ineffectual and a struggle ensued. The officers shoved Leija face-first against the wall and tased him again, this time making direct contact with Leija’s skin, but again the taser appeared ineffectual. A deputy shoved his leg into the back of Leija’s knee, bringing all three officers and Leija down. The officers handcuffed Leija while the doctor administered calming medications, but at that point Leija became limp and the doctors began CPR. Leija died that evening. The medical examiner testified that the cause of death was pneumonia, but the taser shots “certainly could have increased Leija’s need for oxygen,” and the treating physician testified that the position Leija was forced into by the officers made it difficult for him to breathe.

Erma Aldaba, Leija’s mother and next of kin, brought a 42 U.S.C. § 1983 action against the officers. The district court granted summary judgment to the officers, deciding that Leija was lawfully seized, since probable cause existed for taking him into protective custody due to his altered mental status. However, the district court denied qualified immunity on the excessive force claim, holding that several material disputes existed about the reasonableness of the force used against Mr. Leija. The officers filed an interlocutory appeal.

The Tenth Circuit first analyzed the constitutional violation regarding the officers’ use of excessive force against Leija. The Tenth Circuit first enumerated the Graham factors for determining whether force was excessive, then added factors relating to the reasonableness of using force against a person who is to be taken into protective custody for mental health reasons. The Tenth Circuit found that where, as here, the person has committed no crime and poses a threat only to himself, it is especially egregious to use force to take the person into protective custody. The Tenth Circuit also admonished against the use of force or positional restraints when a person has special characteristics making him especially susceptible to harm, such as known medical conditions. Weighing the factors, the Tenth Circuit found the first factor weighed for the use of some force in restraining Mr. Leija, since he was clearly mentally disturbed and could die if he left the hospital. However, the rest of the factors weighed against the use of force, and particularly against the use of a taser.

Mr. Leija’s altered mental status and compromised physical condition weigh against the use of any force in restraint. Perhaps more importantly, weighing against the use of force was the fact that Mr. Leija committed no crime and voluntarily arrived at the hospital for medical treatment. Finally, the Tenth Circuit found disputed material facts regarding the last Graham factor—whether the defendant resisted seizure. Here, testimony varied on whether Mr. Leija complied with the officers’ orders to get down on his knees. Surveillance video showed no struggle from Leija, who simply continued walking when the officers commanded him to kneel. The deputy made the initial showing of force by tasing Mr. Leija. The officers were not justified in using the level of force shown on the surveillance video. The Tenth Circuit found the officers were not entitled to summary judgment on the excessive force claim, and that the law was clearly established at the time of the violation.

The Tenth Circuit affirmed the district court’s denial of summary judgment to the officers.

Colorado Court of Appeals: Statute with “Other Apparatus” Category Not Unconstitutionally Vague As Applied to Gym Lockers

The Colorado Court of Appeals issued its opinion in People v. Nerud on Thursday, March 12, 2015.

Third-Degree Burglary Statute—Vagueness Challenge—Sufficiency of the Evidence—Jury Instructions—Closing Argument.

Nerud stole money and a backpack from three lockers at a 24 Hour Fitness Center on three occasions. He was apprehended on the third theft and eventually admitted to all three thefts, but denied breaking any locks to enter the lockers. He claimed he rummaged through belongings in unlocked lockers until he found money to take. Nerud was charged with two counts of third-degree burglary related to the first two incidents and three counts of theft. The jury found him guilty on all counts.

On appeal, Nerud argued that the third-degree burglary statute, CRS § 18-4-204(1), is unconstitutionally vague on its face and as applied to him because it prohibits entering or breaking into “other apparatus or equipment.” The Court of Appeals reviewed the case law interpreting the phrase and held the statute is not vague on its face because “other apparatus and equipment” is limited to containers with the same characteristics as the other items listed in the statute (specifically, containers designed and used for the safekeeping of money or valuables). The Court found the lockers were clearly “other apparatus and equipment” because they were used to safeguard personal valuable items while members worked out in the gym and a person of ordinary intelligence would not have to guess at this meaning. Thus, the statute was not unconstitutionally vague as applied.

Nerud argued that the evidence presented was insufficient to prove the lockers were “other apparatus or equipment” that were locked. The Court found copious evidence in the record to support the findings of the jury; the testimony of the victims alone was sufficient.

Nerud argued that the jury instruction on “other apparatus or equipment” was improper. The Court disagreed, finding that the jury instruction correctly defined the phrase.

Nerud argued that the jury instruction on the inference that may be drawn from a defendant’s unexplained, exclusive possession of stolen property was error. The Court found any error harmless; Nerud conceded the theft but only contested whether the lockers he had stolen from were locked.

Nerud further argued that the prosecutor in his closing argument improperly offered personal opinions about witness credibility and drug paraphernalia found in Nerud’s backpack. The Court found no reversible error. It first noted no contemporaneous objection and therefore a plain error standard of review applied, and then reviewed the objected to statements and found no plain error. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.