June 28, 2016

Colorado Court of Appeals: Dormant Commerce Clause Not Violated Where Defendant Interacted with Colorado Investigator

The Colorado Court of Appeals issued its opinion in People v. Helms on Thursday, June 16, 2016.

Internet Child Exploitation Statute—CRE 404(b)—Bad Act Evidence—Evidence—Probation Revocation.

Defendant was convicted of two counts of Internet exploitation of a child. He was sentenced to 10 years of supervised probation on each count. The district court later revoked his probation when he failed to register as a sex offender and resentenced him for an indeterminate term of two years to life.

On appeal, defendant contended that the Internet child exploitation statute, C.R.S. § 18-3-405(1)(a), is facially unconstitutional for several reasons. The Court of Appeals disagreed. The statute does not violate the dormant Commerce Clause of the U.S. Constitution because the statute is limited to situations in which the criminal conduct occurs either wholly or partially in Colorado. It also does not violate the First Amendment because it is not overly broad, and it does not violate defendant’s constitutional right to due process because it is not vague.

Defendant also contended that the district court erred by admitting a statement he made, arguing that it was CRE 404(b) bad act evidence. However, the statement was not admitted as evidence of defendant’s bad character; rather, it directly rebutted his defense. Therefore, the district court did not err by admitting this evidence.

Defendant additionally argued that the evidence was insufficient to support his convictions. He argued that his conviction for count one was not supported by sufficient evidence because the jury was instructed that he must have committed the crime in Colorado to be guilty of child exploitation. However, the sufficiency of the evidence is measured against the elements of the offense rather than jury instructions. The child exploitation statute does not require that the actor be in Colorado at the time of the criminal communication. As to the second count, defendant’s conduct did not meet the requirements of the essential elements of the offense. Therefore, this conviction was reversed.

Defendant also argued that the district court erred by denying his motion for a mistrial after a witness testified about an inadmissible matter. Defense counsel elicited the statement from the witness, and although it was prejudicial, the court offered to give a curative instruction to the jury, which defense counsel declined. Therefore, the district court did not abuse its discretion by denying the motion for a mistrial.

Lastly, defendant contended that the district court’s revocation of his probation must be reversed because the district court did not adhere to the applicable statutory requirements. There was not sufficient evidence that defendant waived his right to be advised by the court through counsel, or that he was advised of potential penalties before the probation revocation hearing. In addition, the district court revoked defendant’s probation without obtaining and considering treatment and monitoring recommendations from defendant’s probation officer or treatment provider, as required by statute. Therefore, the district court’s revocation of defendant’s probation was reversed.

The judgment was affirmed in part and reversed in part, and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Community Corrections Resident Has Little to No Expectation of Privacy

The Colorado Court of Appeals issued its opinion in People v. Triplett on Thursday, June 2, 2016.

Residential Community Corrections Facility—Search—Reasonable Expectation of Privacy—Fourth Amendment—Fifth Amendment—Voluntary Statements.

Triplett was serving a sentence at a residential community corrections facility. A community justice officer conducted an unscheduled search of Triplett’s clothing while he was showering and discovered a vial of drugs. Triplett was convicted of possession of a controlled substance.

On appeal, Triplett contended that the trial court erred in denying his motion to suppress  (1) the drugs found in his clothing, because this find resulted from an unconstitutional search, and (2) his statements to the police officer who questioned him about the drugs, because the statements should have been suppressed as “fruit of the poisonous tree” and were involuntary. The court of appeals found that the search was proper because, as an inmate, Triplett had no reasonable expectation of privacy in his clothing while at the residential community corrections facility, and the search was reasonable under the Fourth Amendment. Because the search was reasonable, Triplett’s argument that the statements he made to the police officer were fruit of the poisonous tree failed.

Alternatively, Triplett contended that his statements to the police officer should have been suppressed under the Fifth Amendment as involuntary under the totality of the circumstances. The court disagreed, finding the statements were voluntary and admissible.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Malicious Prosecution Claims Under § 1983 Supported by Fourth Amendment Violations

The Tenth Circuit Court of Appeals issued its opinion in Sanchez v. Hartley on Monday, January 11, 2016.

Four detectives and an investigator investigating a 2009 burglary and sexual assault of an 8-year-old girl interviewed Tyler Sanchez, an 18-year-old with significant cognitive disabilities. Even though Mr. Sanchez did not fit the description provided by the victim, the detectives and investigator conducted lengthy interviews, in which Mr. Sanchez eventually confessed to the burglary but not the sexual assault. The district attorney decided to charge Mr. Sanchez with both crimes, and he was detained for several months after multiple judges found probable cause based on the confession.

Mr. Sanchez argues his confession was false, noting that because of his disabilities he did not understand what was happening during the interviews. A medical examination supported his explanation, and the district attorney dropped the charges in 2012. Mr. Sanchez then sued under 42 U.S.C. § 1983, arguing the defendants committed malicious prosecution in violation of the Fourth Amendment by using a false confession to initiate legal prosecution and lengthy pretrial detention. The defendants moved for dismissal based on qualified immunity, but the district court denied the motion. Defendants then brought an interlocutory appeal, arguing they were entitled to qualified immunity and also that Mr. Sanchez’s claims were barred by the statute of limitations.

The Tenth Circuit conducted a de novo review of whether Mr. Sanchez adequately stated a claim that the defendants violated his constitutional rights by using a confession they knew to be false. Defendants set forth five reasons why Mr. Sanchez’s complaint failed to show a constitutional violation, which the Tenth Circuit disposed of in turn. First, defendants argued that § 1983 does not support a claim for malicious prosecution in violation of the Fourth Amendment. The Tenth Circuit disagreed, finding that § 1983 could support both Fourth and Fourteenth Amendment violations.

Next, the defendants argued the complaint failed to set forth sufficient allegations that defendants knew the confession was untrue or recklessly disregarded its truth. The Tenth Circuit found that Mr. Sanchez alleged several facts to support his claim, for example: (1) the description of the attacker given by the victim did not match Mr. Sanchez’s physical appearance in several key ways, including age, size, hair color, and tattoos; (2) Mr. Sanchez has severe cognitive difficulties that affect his behavior in noticeably unusual ways; (3) Mr. Sanchez had significant difficulties understanding and answering questions during the interviews with defendants; (4) Mr. Sanchez’s unusual behaviors during the interview were amplified by fatigue, as the defendants kept him up for over 30 hours during the interviews, and he answered with his eyes closed by the end of the interview; (5) the defendants noticed Mr. Sanchez’s unusual behavior, and asked him whether he was just saying what they wanted to hear and whether he was intoxicated; and (6) Mr. Sanchez was unable to give any details about his involvement to the crime, and instead agreed to everything the defendants proposed, including details that defendants knew were false. The Tenth Circuit found that these facts and others supported an inference that the defendants knew Mr. Sanchez’s confession was false.

Defendants also argued that the initial warrantless arrest invalidated Mr. Sanchez’s claim for malicious prosecution, and that he could only argue a claim for false imprisonment. The Tenth Circuit again disagreed, pointing out that its prior precedent supported claims for malicious prosecution based on seizures that occur after warrantless arrests. Defendants also argued the malicious prosecution claim was confined to the district attorney, but again the Tenth Circuit disagreed, finding no support for defendants’ argument.

Finally, the defendants argued that Mr. Sanchez did not show facts that would shock the conscience. However, the Tenth Circuit held that the shock the conscience standard does not apply to Fourth Amendment claims, only to substantive due process claims. The Tenth Circuit held that Mr. Sanchez had pleaded facts sufficient to show a violation of his constitutional rights.

Turning next to the question of whether those rights were clearly established at the time of the violation, the Tenth Circuit held that they were. At least five years prior to 2009, the Tenth Circuit had decided cases that should have alerted the defendants to the fact that the knowing or reckless use of a false confession would violate the Fourth Amendment. The Tenth Circuit found that each of defendants’ three arguments was invalid because defendants violated the Fourth Amendment regardless of their awareness of Mr. Sanchez’s cognitive disabilities, the contours of malicious prosecution claims do not affect whether defendants violated Mr. Sanchez’s constitutional rights, and in 2009 case law suggested that both Fourth and Fourteenth Amendment violations could support a § 1983 claim.

The Tenth Circuit declined to exercise its pendant appellate jurisdiction to address the statute of limitations claim. The Tenth Circuit affirmed the district court’s denial of qualified immunity and remanded for further proceedings.

Colorado Court of Appeals: No Statutory Enforcement Mechanism Exists for Respondent Fee Awards

The Colorado Court of Appeals issued its opinion in McGihon v. Cave on Thursday, May 19, 2016.

Defendant Thomas Cave filed a complaint with the Secretary of State, alleging that plaintiff Anne McGihon, a lobbyist, violated the Fair Campaign Practices Act by allowing her name to be placed on an event invitation on behalf of a candidate for the Colorado House of Representatives. Following a hearing, an ALJ dismissed Cave’s claims and awarded McGihon attorney fees jointly against Cave and his attorney, Jessica Peck. The ALJ found that Cave’s claims were substantially groundless, frivolous, and vexatious.

McGihon filed an enforcement action in district court. Cave and Peck filed separate motions to dismiss, arguing the district court lacked jurisdiction over the enforcement action. The district court granted the motions and McGihon appealed.

On appeal, the Colorado Court of Appeals found that although fee awards are contemplated by both C.R.S. § 1-45-111.5(2) and Colo. Const. art. XVIII, § 9(2)(a), there is no enforcement mechanism available for prevailing respondents. Because McGihon did not raise equal protection and due process arguments in district court, the court of appeals declined to consider them.

The court affirmed the district court’s dismissal.

Colorado Court of Appeals: Confrontation Rights Violated when Defendant Not Allowed to Ask Victim About Impairment

The Colorado Court of Appeals issued its opinion in People v. Dunham on Thursday, May 19, 2016.

The victim and his friend were involved in a confrontation in an apartment complex parking lot in the early morning hours of July 8, 2012. At some point, Defendant pointed a gun at the victim and his friend. The confrontation ended when Defendant pointed his gun into the air and fired. After leaving the parking lot, the victim was shot several times at a nearby intersection. The only witnesses besides Victim and Defendant were a husband and wife who saw a man running from the scene of the shooting but could not identify the shooter.

Defendant was charged with attempted first degree murder after deliberation, attempted second degree murder, first degree assault, and a crime of violence sentence enhancer. At trial, defense counsel sought to admit evidence that Victim had consumed methamphetamine the night of the shooting as res gestae evidence under CRE 404(b). The issue arose several times during trial and each time the trial court denied the defense’s request. Defendant was acquitted of the first degree murder charge but convicted on the other charges and sentence enhancer. He appealed, contending the trial court committed constitutional error by denying his requests to question the victim about his methamphetamine use.

The Colorado Court of Appeals found that the trial court erred in finding the evidence was insufficient to allow the jury to consider the matter, and further found that CRE 104(a) governed the relevance of the evidence. The court of appeals found that the evidence was sufficient to allow a jury to consider the statements made by Victim to police and hospital staff regarding his methamphetamine use. The court further found that the error was constitutional because Defendant’s Confrontation Clause rights were violated.

The court reversed and remanded for a new trial on the charges on which Defendant was convicted.

Tenth Circuit: “Arguable” Reasonable Suspicion Enough to Support Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Shimomura v. Carlson on Tuesday, December 29, 2015.

Tsutomu Shimomura was at a security checkpoint at DIA when a TSA agent tested his medicine with a test strip. Mr. Shimomura expressed concern about the sterility of the test strips and asked to speak to a supervisor. The supervisor, TSA Agent Kendra Carlson, engaged in a heated exchange with Mr. Shimomura while Denver Police Officer Wade Davis watched. Agent Carlson eventually ordered Mr. Shimomura to “get the hell out of here,” and he turned to leave. As he was leaving, his roller bag may have struck Agent Carlson. Officer Davis immediately arrested Mr. Shimomura. He was detained for approximately 9o minutes, then was issued a summons and complaint, charging him with assault for pushing his roller bag into Agent Carlson. The prosecutor dismissed the criminal complaint after reviewing the charges.

Mr. Shimomura brought suit against Agent Carlson and Officer Davis, alleging 42 U.S.C. § 1983 violations of his Fourth, Fifth, and Fourteenth Amendment rights. The district court granted summary judgment based on qualified immunity to Officer Davis on the Fourth Amendment claims and dismissed the claims against Agent Carlson based on failure to state a claim. The court also dismissed the causes of action based on violations of the Fifth and Fourteenth Amendments for failure to state a claim. Mr. Shimomura appealed.

The Tenth Circuit first determined that Officer Davis was entitled to qualified immunity because he had at least a modicum of reasonable suspicion that Mr. Shimomura had committed a crime. The majority panel determined that probable cause was at least “arguable” as to Officer Davis. The Tenth Circuit evaluated the crime of which Mr. Shimomura was charged, third-degree assault, which requires reckless or intentional commission of assault, which is separately defined as bodily injury, including pain. The majority panel determined that Officer Davis had at least arguable suspicion that Agent Carlson experienced pain, however minor or fleeting, from her contact with the roller bag, and therefore he was entitled to qualified immunity. Chief Judge Tymkovich dissented; he opined that the majority panel disregarded its role by impermissibly finding facts instead of questioning whether a reasonable jury could have taken Mr. Shimomura’s version of the events as true. Judge Tymkovich did not believe Officer Davis was entitled to qualified immunity.

The Tenth Circuit next evaluated the district court’s dismissal of Mr. Shimomura’s claims against Agent Carlson. The Tenth Circuit affirmed the dismissal, finding that even if Agent Carlson fabricated her version of the events, she did so after Mr. Shimomura’s arrest. Because Mr. Shimomura was arrested as a matter of law in the moments after his roller bag may have struck Agent Carlson, any withholding and fabrication of evidence took place after that moment. The Tenth Circuit found Mr. Shimomura’s Fourth Amendment claims against Agent Carlson failed.

The Tenth Circuit then turned to Mr. Shimomura’s conspiracy claims and disregarded them for the same reason. The Tenth Circuit determined that, because any conspiracy would have occurred after Mr. Shimomura’s arrest, his claims could not stand. The Tenth Circuit similarly disposed of Mr. Shimomura’s due process claims, finding that any due process issues related to unlawful arrest must be decided under the Fourth Amendment.

The Tenth Circuit affirmed the district court. Chief Judge Tymkovich dissented as to the claims against Officer Davis.

Colorado Supreme Court: Privilege Against Self-Incrimination Precludes Revocation of Probation

The Colorado Supreme Court issued its opinion in People v. Roberson on Monday, May 16, 2016.

Fifth Amendment—Probation Revocation.

The Supreme Court concluded that on the facts presented here, defendant’s Fifth Amendment privilege against self-incrimination precluded the district court from revoking his sex offender intensive supervision probation based on his refusal to answer a polygraph examiner’s question regarding his use or viewing of child pornography while he was on probation. On the record before the Court, however, the Court was unable to determine whether defendant’s privilege against self-incrimination precluded the district court from revoking defendant’s probation based on his refusal to answer questions concerning any post-trial sexual fantasies involving minors that he might have had within the six months immediately preceding the polygraph examination. Accordingly, the Court made its rule to show cause absolute and remanded the case to the district court with directions that the court conduct further proceedings as more fully set forth in this opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Total Refusal of Sex Offender Treatment Based on Fifth Amendment is Prohibited

The Colorado Supreme Court issued its opinion in People v. Ruch on Monday, May 16, 2016.

Fifth Amendment—Probation Revocation.

This case required the Supreme Court to determine whether the trial court properly revoked defendant’s probation for, among other things, refusing to enroll or participate in sex offender treatment based on his concern that in the course of such treatment, he would have been compelled to incriminate himself in violation of the Fifth Amendment. The Court perceived no Fifth Amendment violation here, where the trial court revoked defendant’s probation based on his total refusal to attend treatment. In these circumstances, defendant’s purported invocation of his Fifth Amendment rights was premature and amounted to a prohibited blanket assertion of the privilege. Accordingly, the Court held that the trial court properly revoked Ruch’s probation based on his refusal to attend treatment.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Non-Disclosure of Victim’s Juvenile Adjudication Did Not Render Plea Ineffective

The Colorado Supreme Court issued its opinion in People v. Corson on Monday, May 16, 2016.

Guilty Pleas—Voluntariness—Ineffective Assistance of Counsel—Crim. P. 16.

Respondent Corson pleaded guilty to sexual assault on a child, position of trust. Corson sought to overturn his conviction because the prosecutor, who had previously obtained a juvenile adjudication against the victim for falsely reporting a sexual assault in another case, did not disclose the victim’s prior false-reporting adjudication. The Supreme Court held that the prosecution’s non-disclosure did not render Corson’s guilty plea involuntary or his plea counsel ineffective. The Court also held that juvenile adjudications are not criminal convictions and therefore are not subject to automatic disclosure under Crim. P. 16(I)(a)(1)(V).

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Officer Had Probable Cause to Arrest Person Filming Security Checkpoint at Airport

The Tenth Circuit Court of Appeals issued its opinion in Mocek v. City of Albuquerque on Tuesday, December 22, 2015.

Phillip Mocek was arrested in a security checkpoint of the Albuquerque Sunport airport for concealing his identity after filming airport security procedures and being questioned on suspicion of disorderly conduct. Mocek was ultimately charged with disorderly conduct, concealing name or identity, resisting an officer’s lawful command, and criminal trespass. At trial, Mocek introduced the video footage taken prior to the arrest, and was acquitted on all counts. Mocek then brought this action in the district court alleging First and Fourth Amendment violations and seeking damages under 42 U.S.C § 1983, as well as declaratory relief. Mocek also sued the officers and City of Albuquerque for malicious abuse of process under New Mexico tort law. The district court granted the defendants’ Rule 12(b)(6) motions to dismiss for all claims, Mocek appealed, and the Tenth Circuit Court of Appeals affirmed the dismissal of all claims.

First, the Tenth Circuit affirmed the dismissal of the constitutional claims against the individual police officers (including the arresting officer, Officer Dilley) and TSA agents, holding the individual defendants are entitled to qualified immunity because their actions were reasonable and in compliance with the Fourth and First Amendments. With respect to the Fourth Amendment claims against the individual defendants, the Tenth Circuit reasoned Officer Dilley possessed reasonable suspicion that justified stopping Mocek and asking him to identify himself, considering the fact that an airport security checkpoint is a location where “order was paramount.” Further, it was reasonable for Officer Dilley to believe that an investigative stop for disorderly conduct at an airport security checkpoint required production of some physical proof of identity, and given Mocek’s continued refusal to show identification, it was reasonable for Officer Dilley to believe he had probable cause to arrest Mocek for violating a New Mexico criminal statute that prohibits the obstruction of a public officer’s legal performance of his duty. In short, Officer Dilley’s interpretation of the aforementioned New Mexico statute in establishing probable cause to arrest Mocek was reasonable, and therefore, Officer Dilley and the other individual defendants were entitled to qualified immunity on Mocek’s Fourth Amendment claims.

In rejecting Mocek’s claim that the individual defendants unconstitutionally retaliated against the exercise of his First Amendment right to film at the security checkpoint, the Tenth Circuit determined Mocek could not satisfy the third prong of a retaliation claim: that the government’s actions were substantially motivated in response to his protected speech. The Tenth Circuit reasoned when Mocek was arrested, it was not clearly established that Mocek could show the requisite motive where his arrest was arguably supported by probable cause, and therefore, the individual defendants were entitled to qualified immunity on Mocek’s First Amendment retaliation claim.

Second, with respect to Mocek’s claims for declaratory relief against the defendants in their official capacities, the Tenth Circuit affirmed the district court’s dismissal of the claim against the TSA defendants for lack of jurisdiction because Mocek’s pleadings never identified a federal waiver of sovereign immunity (which is required because a suit against a government agent is treated as a suit against the government, and the federal government may only be sued where it has waived sovereign immunity). As for the claim for declaratory relief against the police defendants in their official capacities, the Tenth Circuit affirmed the district courts dismissal, reasoning Mocek had not sufficiently alleged that his past injury resulted in continuing, present adverse effects, and because Mocek had not alleged any injury beyond a subjective chilling effect.

Third, in affirming the district court’s dismissal of Mocek’s claim that the City of Albuquerque is liable under § 1983 because it caused his injuries through unconstitutional policies and practices, the Tenth Circuit held the complaint, aside from conclusory statements, contained no allegations giving rise to an inference that the municipality itself established a deliberate policy or custom that caused Mocek’s injuries.

Fourth, considering Mocek’s claims that the arrest and subsequent filing of a criminal complaint against him constituted a malicious abuse of process, the Tenth Circuit first determined the claims were property before it through either diversity jurisdiction or through the district court’s unchallenged exercise of supplemental jurisdiction. With respect the merits of the claims, the Tenth Circuit upheld the district court’s dismal, finding Mocek was unable to satisfy either the absence of probable cause or the procedural impropriety theories of liability. Under the absence of probable cause theory, the Tenth Circuit found there was at least arguable probable cause to arrest him for concealing identity, and even if there was no probable cause for the other three charges, Mocek nowhere argues that they rendered the complaint as a whole obviously devoid of probable cause. Under the procedural impropriety theory, the Tenth Circuit found Mocek’s brief does not point to anything procedurally improper surrounding his arrest. Therefore, in determining Mocek failed to establish liability under either theory, the Tenth Circuit held Mocek had not established that the arrest and subsequent filing of a criminal complaint against him constituted a malicious abuse of process, thereby affirming the district court’s dismissal of said claims.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Defendant Must Personally Waive Presence During Crucial Times of Trial

The Colorado Court of Appeals issued its opinion in People v. Janis on Thursday, May 5, 2016.

Erin Janis stabbed Farest Logan outside a bar on Colfax. Janis, who was quickly apprehended by police, admitted to stabbing Logan, but asserted she did it in self-defense because he had helped someone else rape her and had assaulted her previously that day. Logan said he was just standing outside the bar when Janis stabbed him. Janis was charged with first degree assault.

At trial, defense counsel approached the bench during Logan’s testimony and informed the court that Janis was suffering ill effects from her psychiatric diagnoses and needed to leave the courtroom. The court granted defense counsel’s request without questioning Janis. She was ultimately convicted and sentenced to 12 years in prison, and appealed her sentence and conviction.

The court of appeals addressed whether a defendant in custody can waive appearance through counsel, and determined that it could not. Janis was in custody during the trial and was available for the court to question her regarding whether waiving her right to confront Logan was voluntary. Because the right to confront adverse witnesses is grounded in the Sixth Amendment and is fundamental, Janis was deprived of her right to a fair trial by not personally waiving her appearance.

The judgment was reversed and the case was remanded for a new trial.

Colorado Supreme Court: Constitutional Inalienable Rights Provision Does Not Save Fracking Ban from Preemption

The Colorado Supreme Court issued its opinion in City of Longmont v. Colorado Oil and Gas Association on Monday, May 2, 2016.

Preemption—Inalienable Rights Provision.

Applying well-established preemption principles, the Colorado Supreme Court concluded that the City of Longmont’s ban on fracking and the storage and disposal of fracking wastes within its city limits operationally conflicts with applicable state law. Accordingly, the court held that Longmont’s fracking ban is preempted by state law and, therefore, is invalid and unenforceable. The court further held that the inalienable rights provision of the Colorado Constitution does not save the fracking ban from preemption by state law. The court thus affirmed the district court’s order enjoining Longmont from enforcing the fracking ban and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.