August 27, 2016

Tenth Circuit: State of Residence Cannot Support Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in Vasquez v. Lewis on Tuesday, August 23, 2016.

Peter Vasquez was driving eastbound on I-70 through Kansas at 2 a.m., traveling from Colorado to Maryland. Officer Lewis and Officer Jimerson could not read Vasquez’s temporary tag through his car’s tinted windows so they initiated a traffic stop. Jimerson observed blankets and a pillow in the front passenger seat and back seat of the car as he approached, and assumed something was obscured by the blankets in the back seat. Vasquez responded that there was no one else in the car. Jimerson took Vasquez’s license and proof of insurance and returned to the patrol car, where he told Lewis that Vasquez appeared nervous. Jimerson sent Lewis to gauge Vasquez’s nervousness and “get a feel for him.” Upon his return, Lewis responded that Vasquez looked “scared to death.” Jimerson checked the insurance and discovered that Vasquez had insurance for two newer vehicles. Suspecting that Vasquez was transporting illegal drugs, Jimerson called for a drug sniffing dog.

Lewis returned to Vasquez’s vehicle and asked where he worked, why he wasn’t driving the newer car, and why he didn’t have more belongings in his vehicle if he was moving. Eventually, Lewis issued a warning and started to walk away, then walked back and asked Vasquez if he could ask a few more questions. Lewis asked Vasquez if there were any illegal drugs in the vehicle, which Vasquez denied. Lewis then asked to search the vehicle but Vasquez refused. After he refused, Lewis detained Vasquez and searched the vehicle, aided by the drug dog. The search revealed nothing illegal.

Vasquez brought suit against the officers under 42 U.S.C. § 1983, arguing they violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. The district court initially denied the officers’ motion to dismiss, but after discovery, it granted the officers’ motion for summary judgment based on qualified immunity, holding that Vasquez could not show the officers violated a clearly established right. Vasquez timely appealed.

The Tenth Circuit remarked that it has repeatedly admonished that once an officer establishes a temporary tag is valid, the officer should explain the reason for the initial stop and let the motorist continue on his or her way. The officers argue their extended seizure was justified by reasons other than the temporary tag. The Tenth Circuit considered only whether the search and dog sniff were valid based on Vasquez’s challenge.

The officers contended their suspicions were valid because Vasquez was driving alone late at night; he was driving from Colorado, a “drug source area”; he was driving on I-70, a “known drug corridor”; he did not have enough items in his car to support his assertion that he was moving; the items in the backseat were obscured from view; he had a blanket and pillow in his car; he was driving an older car despite owning a newer one; there were fresh fingerprints on his trunk; and he seemed nervous. The Tenth Circuit was troubled by the officers’ justification that because Vasquez was from Colorado it should establish reasonable suspicion. The Tenth Circuit strongly cautioned that

It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The Tenth Circuit continued that the continued use of state of residence as justification is impermissible.

The Tenth Circuit also found that nervousness could not be used as justification, and found that the officers’ reasoning was contradictory at points. The Tenth Circuit similarly disregarded the argument that because Vasquez was driving on I-70 there should be suspicion, noting it would be suspicious if he were driving from Colorado to Maryland and not using I-70. The Tenth Circuit concluded the officers violated Vasquez’s constitutional rights by searching his car.

Turning to whether the right to be free of unconstitutional searches was clearly established at the time of the incident, the Tenth Circuit found precedent to support that it was. In fact, the Tenth Circuit found that the same officer, Officer Jimerson, was the subject of a strikingly similar case in which the Tenth Circuit found no reasonable suspicion for the driver’s detention.

The Tenth Circuit reversed the district court’s summary judgment and remanded for further proceedings. Judge McHugh dissented; he would not have found a constitutional violation and would have distinguished the other case involving Officer Jimerson.

Tenth Circuit: No Constitutional Violation Where Court Denied Counsel’s Request for Review of Classified Documents

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lustyik on Monday, August 15, 2016.

Robert Lustyik was an FBI agent who tried to help his friend and business partner, Michael Taylor, with Taylor’s security business, American International Security Corporation (AISC). The Department of Defense offered AISC a contract in 2007 to provide training to Afghan Special Forces, and in 2010 the United States began investigating AISC for fraud and money laundering related to the 2007 DOD contract. The United States filed a civil forfeiture action against AISC’s assets in 2011, resulting in the seizure of more than $5 million from Taylor’s bank account. Lustyik attempted to impede the government’s investigation of Taylor by using his status as an FBI agent, including trying to establish Taylor as a confidential source. Taylor assured Lustyik that he would receive financial compensation for his assistance.

In 2012, a federal grand jury indicted Lustyik, Taylor, and their middle-man on charges of conspiracy, honest services wire fraud, obstruction of justice, and obstruction of agency proceedings. The United States disclosed over one million pages of unclassified discovery, plus 10,000 pages of classified information. Despite revocation of his security clearance, Lustyik was allowed to review nearly 7,000 pages of the classified material. Through his counsel, Lustyik filed a Classified Information Procedures Act (CIPA) motion, identifying which classified information they wished to present at trial. The court denied Lustyik’s motion after an ex parte meeting with defense counsel. During the first few days of Lustyik’s trial, Lustyik pleaded guilty to all eleven counts with no plea agreement. After pleading guilty but before sentencing, Lustyik’s lead counsel withdrew and the court appointed new counsel. Lustyik filed a motion to obtain security clearance for the new attorney, which a magistrate denied.

At sentencing, the court addressed counsel’s inability to access the classified information, noting that it would not add to counsel’s ability to argue for his client. Defense counsel presented significant mitigating evidence and obtained a downward variance from the Guidelines range of 151 to 188 months, and Lustyik was sentenced to 120 years imprisonment. He appealed, arguing his constitutional rights were violated when his counsel was denied access to the confidential materials.

The Tenth Circuit evaluated Lustyik’s claim of a Sixth Amendment violation under de novo review. The Circuit noted that the right to counsel is presumptively violated only where the circumstances are so likely to prejudice the accused that the cost of litigation is unjustified. Lustyik claimed his counsel’s limited ability to review classified materials fatally undercut his effectiveness and prevented him from adequately testing the government’s position. The Tenth Circuit disagreed, finding the presumption of prejudice inapplicable. Because Lustyik failed to show that the district court’s denial created a constitutional violation, the Tenth Circuit reviewed for abuse of discretion and found none. The Tenth Circuit found ample record support for the district court’s conclusions regarding the classified information.

The government conceded on appeal that Lustyik’s sentence may have been illegal, so the Tenth Circuit remanded for sentencing clarification. The Tenth Circuit otherwise affirmed the denial of security clearance.

Tenth Circuit: Findings of Fact Needed to Determine Whether Termination Caused by Employer’s Belief that Employee Engaged in Protected Activity

The Tenth Circuit Court of Appeals issued its opinion in Bird v. West Valley City on Monday, August 8, 2016.

Karen Bird was hired at West Valley City’s animal shelter in 2001, and was promoted to manager by Kelly Davis, her direct supervisor, in 2002. In 2005, West Valley City’s human resources manager, Shirlayne George, investigated the shelter and reported several negative comments about Ms. Bird by fellow employees. Mr. Davis was also the subject of several complaints, especially by women, and Ms. George investigated him in 2009. Most of the women who complained about Mr. Davis were either fired or voluntarily left the animal shelter shortly after complaining. Ms. Bird and Mr. Davis had a disagreement in 2009, and their already strained relationship deteriorated thereafter, to the point where Ms. Bird would not look Mr. Davis in the eye and could not stand to be in the same room as him.

In October 2011, the Salt Lake Tribune published an article about a cat that had endured two failed euthanasia attempts in the shelter’s gas chamber. About a week later, a reporter called the shelter after receiving an anonymous tip about a planned mass-euthanasia due to overpopulation. Both Layne Morris, the Community Preservation Department Director and Mr. Davis’s direct supervisor, and Mr. Davis believed that the anonymous tip had come from Ms. Bird, although she denied it. Ms. Bird was notoriously against using the gas chamber for euthanasia and was one of the few individuals privy to the information about the shelter’s overpopulation. Shortly after this incident, Ms. Bird emailed Ms. George that she could not take any more of Mr. Davis’s harassment. She filed a formal complaint on November 3, 2011.

Less than a week later, Mr. Davis issued two letters of reprimand to Ms. Bird regarding unauthorized use of overtime pay, despite the shelter’s usual practice of issuing less formal warnings before the letters of reprimand. On November 14, in response to Ms. Bird’s complaint, Ms. George undertook an investigation of the entire shelter. She received several complaints regarding both Ms. Bird and Mr. Davis, but more against Ms. Bird. Mr. Morris reviewed the results of the investigation and decided to discipline Ms. Bird for insubordination and failure to be courteous to the public or other shelter employees. He sent Ms. Bird a letter advising of the discipline on November 16, and ultimately terminated her employment on November 29. Mr. Morris testified that his decision to terminate Ms. Bird was not only based on the November 2011 investigation, but rather because of the deterioration of the relationship between Ms. Bird and Mr. Davis. Mr. Morris also testified that he had considered terminating Ms. Bird in December 2010 but Mr. Davis stayed his hand.

Ms. Bird unsuccessfully appealed her termination to Ms. George, then the city’s human resources director, and finally to the West Valley City Appeals Board. When all three appeals were unsuccessful, Ms. Bird filed a complaint in district court, alleging the city terminated her in violation of Title VII as a result of gender discrimination and subjected her to a hostile work environment; the city violated § 1983 because it terminated her as a result of gender discrimination in violation of the Equal Protection Clause; and both the city and Mr. Davis violated § 1983 because they terminated her in retaliation for exercising her First Amendment rights concerning the anonymous tip to the reporter. Ms. Bird maintained that she did not provide the anonymous tip, but because she was perceived as doing so, the termination in retaliation violated her First Amendment rights. Ms. Bird also brought state law claims for breach of contract and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to defendants on all claims.

On appeal, the Tenth Circuit first considered Ms. Bird’s Title VII gender discrimination and hostile work environment claims. Applying the McDonnell Douglas burden-shifting framework, the Tenth Circuit evaluated Ms. Bird’s claim that the shelter had a pattern and practice of discriminating against female employees. However, Mr. Morris provided two legitimate, non-discriminatory reasons for terminating Ms. Bird: insubordination and failure to be courteous and cooperative with fellow employees. The Tenth Circuit evaluated Ms. Bird’s proffered reasons why Mr. Morris’s explanation was pretextual. She first contended that the reasons he outlined for terminating her differed from those offered in his deposition. The Tenth Circuit disagreed; the Circuit noted that Mr. Morris had offered specific examples in his deposition but his stated reasons for Ms. Bird’s termination were always insubordination and failure to be courteous. Ms. Bird also contended that the individuals to whom she appealed her termination offered different reasons, but the Tenth Circuit found that they merely offered different instances of her conduct. The Tenth Circuit held that no reasonable juror could determine that the city’s reason for terminating her was pretextual.

The Tenth Circuit similarly disposed of Ms. Bird’s hostile work environment claims. Although Mr. Davis’s conduct was deplorable, the Circuit did not find any evidence that his behavior was gender-based. Ms. Bird pointed to several statements, but the statements were generalized and did not point to specific instances. The Tenth Circuit refused to consider vague and conclusory statements as evidence of gender discrimination.

Turning next to the § 1983 Equal Protection claims, the Tenth Circuit found that because Ms. Bird alleged the same facts to prove her Equal Protection claim as she asserted to prove her Title VII claims, the Equal Protection argument failed for the same reasons. The Tenth Circuit also disposed of Ms. Bird’s state law breach of contract and breach of fiduciary duty claims. Ms. Bird relied on the employee handbook to argue her claims based on violation of the “Workplace Violence” section and the unwritten anti-retaliation policy. The Tenth Circuit found that the large disclaimer on the handbook eliminated all contractual liability for the city.

Finally, the Tenth Circuit evaluated Ms. Bird’s § 1983 First Amendment retaliation claims. Although Ms. Bird continued to argue that she did not make the anonymous tips to the reporters, she alleged that she was terminated in retaliation because the city believed she had made the tips. The Tenth Circuit found that the Supreme Court’s decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), controlled its analysis. The lower court did not evaluate Ms. Bird’s First Amendment claims because she could not show that she engaged in protected activity. The Tenth Circuit remanded for a determination of whether Ms. Bird raised a genuine issue of material fact that the city’s belief motivated its decision to terminate her employment.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the Title VII gender discrimination and retaliation claims, the § 1983 Equal Protection Claims, and the state law contractual claims. The Tenth Circuit reversed and remanded on the § 1983 First Amendment claims.

Tenth Circuit: Arrest Can Be Justified Based on Any Crime an Officer Believes Suspect Committed

The Tenth Circuit Court of Appeals issued its opinion in Culver v. Armstrong on Tuesday, August 9, 2016.

Late one night in a small town in Wyoming, Sergeant Shannon Armstrong saw a white Chevrolet pickup truck driving erratically and followed it. When the vehicle finally stopped, only the driver, Reed, and not the passenger, was found. Sergeant Armstrong ordered Reed to sit on the hood of his car while he searched for the other guy. Plaintiff Thomas Culver suddenly appeared out of the dark, and Sergeant Armstrong asked him if he had been in the vehicle. Culver repeatedly answered “Why?” when Armstrong questioned him about whether he had been in the vehicle, and became obstreperous with Armstrong. Armstrong eventually told Culver to move on if it did not concern him, but Culver refused and instead continued to harass Armstrong, drawing him further away from Reed. After several minutes of “verbal jousting,” Armstrong arrested Culver for public intoxication. The charges were later dropped.

Culver sued Armstrong in district court, alleging that Armstrong violated his Fourth Amendment rights in violation of § 1983 by unlawfully arresting him. Armstrong moved for summary judgment based on qualified immunity, which the district court granted. The district court found that the facts recorded on Armstrong’s dash cam and body cam supported the possible arrest of Culver for both public intoxication and interference with a police officer. Culver appealed.

The Tenth Circuit determined that Armstrong had reasonable probable cause to arrest Culver, noting “[p]laintiff seriously misunderstands the nature of our qualified immunity inquiry.” Culver argued that a warrantless arrest without probable cause has been unlawful from time immemorial, but the Tenth Circuit found that Culver’s argument “casts way too high a level of generality over our inquiry.” The Tenth Circuit noted that the officer need only possess reasonable probable cause for an arrest based on any crime the officer could have reasonably believed the suspect committed. After reviewing Wyoming Supreme Court precedent on the issue, the Tenth Circuit found that Armstrong could have had an objectively reasonable belief that Culver was interfering with his detention of Reed in violation of Wyoming law. The Tenth Circuit held that it was inconsequential that Culver was only arrested for public intoxication, and Armstrong was entitled to qualified immunity.

The Tenth Circuit affirmed the district court’s grant of summary judgment.

Tenth Circuit: Officer, School Officials Entitled to Qualified Immunity for Arresting “Class Clown” for Burping in Class

The Tenth Circuit Court of Appeals issued its opinion in A.M. v. Holmes on Monday, July 26, 2016.

In May 2011, F.M. was a student at Cleveland Middle School in Albuquerque when his teacher radioed a request for assistance over her school-issued radio because F.M. was burping loudly in class and disrupting the other students. Officer Acosta, an Albuquerque police officer who was assigned to the school, answered the teacher’s radioed call for help. When Officer Acosta approached the classroom, he saw F.M. sitting on the floor in the hallway while the teacher stood in the classroom doorway. The teacher informed Officer Acosta that F.M. had interrupted class by burping loudly, and even when she ejected him from the room, he continued to lean into the class and burp, making the other students laugh and stopping the teacher from continuing her planned lessons. Officer Acosta escorted F.M. to the office, where he arrested F.M. under N.M. Stat. Ann. § 30-20-13(D), which provides that interfering with the educational process is a petty misdemeanor offense. Officer Acosta informed the principal, Ms. LaBarge, of his intent to arrest F.M., and Ms. LaBarge attempted to contact F.M.’s mother and also prepared a slip for a one-day suspension of F.M. Officer Acosta then transported F.M. to a juvenile detention facility, where he was picked up by his mother. F.M. did not argue with Officer Acosta and was rated a -2 out of 10 on the detention center’s risk assessment. F.M. did not return to Cleveland Middle School for the rest of the year. A.M. spoke publicly about F.M.’s arrest, and there was a good deal of publicity about the incident.

The following year, A.M., F.M.’s mother, re-enrolled him at Cleveland. On November 8, 2011, a student approached a teacher to report witnessing a drug transaction. Officer Acosta retrieved the school’s surveillance videos and, with Ms. LaBarge and an assistance principal, identified the five students involved in the transaction. F.M. was identified as one of the students. All of the students were searched individually in a conference room next to Ms. LaBarge’s office with several adults presents. All of the searches except F.M.’s were audio recorded.

None of the students had drugs on them, but F.M. had $200 cash. He relayed to the adults present that the cash was a birthday present. The assistant principal asked F.M. if he had anything he was not supposed to have, and he said he had a belt buckle in his bag with a marijuana leaf imprint. A search of his backpack revealed the belt buckle and a red bandanna, among other things. F.M. was wearing several layers of clothing, which he removed at the request of the school officials. A male teacher flipped down the waistband of F.M.’s athletic shorts, which revealed a pair of boxers underneath. The teacher did not touch F.M.’s boxers. During the search, A.M. contacted the school and was informed of the events of the morning. A.M. confirmed that F.M. had left the house carrying $200 in cash that morning. F.M. received a three-day suspension for the bandanna and belt buckle because they violated the school’s policies against “gang-related” clothing and “inappropriate messages or symbols.” Later that day, A.M. met with Ms. LaBarge, but according to Ms. LaBarge, A.M. “stormed out” of the office and said her attorney would contact the school.

A.M. sued Officer Acosta, Ms. LaBarge, and the assistant principal in state court, alleging Fourth Amendment violations relating to the May 2011 and November 2011 incidents. A.M. objected to F.M.’s handcuffing in May 2011, opining that a reasonable officer should have known that burping was not a crime and no force was necessary to effectuate an arrest of the compliant child. A.M. also alleged that Ms. LaBarge’s strip search of F.M. in November 2011 was unreasonable. Defendants removed the action to federal court and moved for summary judgment, asserting qualified immunity. The district court granted summary judgment to Ms. LaBarge, agreeing that she was entitled to qualified immunity. While the claims were still pending, A.M. filed another state court lawsuit against the assistant principal, alleging Fourth and First Amendment violations related to the strip search and retaliation for A.M.’s speaking to the media. The assistant principal removed the action to district court and argued collateral estoppel. The court granted summary judgment to the assistant principal. The district court also granted summary judgment to Officer Acosta, finding qualified immunity applicable. A.M. appealed.

The Tenth Circuit addressed A.M.’s claims regarding Officer Acosta first. A.M. contended that the district court sua sponte granted qualified immunity to Officer Acosta, but the Tenth Circuit noted that A.M. devoted most of her reply brief to the issue of qualified immunity and therefore was on notice that the defense had been raised. A.M. also contended she was deprived of the opportunity to present evidence of injuries F.M. suffered by being handcuffed, but the Circuit noted that in Officer Acosta’s response brief, he noted that any injury suffered would have been de minimus, therefore affording A.M. a chance to respond.

The Tenth Circuit next addressed the district court’s grant of qualified immunity to Officer Acosta on the claim that he arrested F.M. without probable cause in violation of the Fourth Amendment. The Tenth Circuit evaluated the New Mexico statute in question and found that Officer Acosta had arguable probable cause to arrest F.M. under the statute banning interference with the educational process. A.M. argued that burping in class did not rise to the level of seriousness contemplated by the statute, and F.M. was at worst being a class clown, conduct that “would have subjected generations of school boys to an after-school detention, writing lines, or a call to his parents.” The Tenth Circuit rejected A.M.’s contentions and determined that the broad language of the statute seemed to encompass F.M.’s conduct. The Tenth Circuit found that A.M. could not carry her burden regarding clearly established law, since the statute appeared to condemn F.M.’s conduct. The Tenth Circuit found that Officer Acosta possessed reasonable probable cause when he arrested F.M. Likewise, the Tenth Circuit agreed with the district court’s reasoning that A.M. had not shown that Officer Acosta committed a constitutional violation when he arrested F.M. The district court determined that A.M. failed to present evidence of an actual physical or psychological injury.

The Tenth Circuit next turned to A.M.’s claims against the assistant principal. The district court found that the assistant principal was entitled to qualified immunity on A.M.’s First, Fourth, and Fourteenth Amendment claims, and the Tenth Circuit agreed. Because the November 2011 search of F.M. was arguably justified at its inception, the assistant principal did not violate the Fourth Amendment by beginning the search of F.M. Likewise, because the search continued to be reasonable in its scope, it was within the strictures of the Fourth Amendment. The Tenth Circuit also dismissed A.M.’s claim that the assistant principal executed the search in retaliation for A.M.’s protected First Amendment activity, referring to its first finding that the search was reasonable at its inception and throughout its duration. A.M. also alleged a Fourteenth Amendment Equal Protection violation because the assistant principal searched F.M. more extensively than the other four students. The Tenth Circuit found that A.M. failed to set forth a legally cognizable Fourteenth Amendment claim because F.M. was not similarly situated to the other students.

Finally, A.M. argued the district court committed reversible error by granting qualified immunity to Ms. LaBarge on A.M.’s unreasonable search claim. A.M. incorporated her arguments against the assistant principal into the brief on Ms. LaBarge’s claim, and the Tenth Circuit decided to follow its previous reasoning in rejecting A.M.’s position.

The Tenth Circuit upheld the grants of qualified immunity as to all three defendants. Judge Gorsuch wrote a compelling dissent; he would have followed a previous New Mexico opinion that limited the statute in question to behavior much more serious than burping in class.

Tenth Circuit: Speedy Trial Objections Must Be Asserted Frequently and Forcefully

The Tenth Circuit Court of Appeals issued its opinion in United States v. Black on Monday, July 26, 2016.

The government charged multiple defendants, including James Black, with conspiracy to distribute cocaine in late 2007. After withdrawing and reasserting indictments, Black was eventually charged with conspiring to distribute cocaine, using a telephone in committing the conspiracy, and possessing with intent to distribute cocaine in the government’s Fifth Superseding Indictment. A jury convicted Black on all charges and he was sentenced to 360 months’ imprisonment.

On appeal, Black argued that the trial court plainly erred in calculating his Guidelines range at 360 months to life. The government conceded the error, and the Tenth Circuit agreed. Black should have been sentenced with a total offense level of 34, not 37, reducing his Guidelines range to 262 to 327 months’ imprisonment. The Tenth Circuit remanded for resentencing.

Black also argued that his Sixth Amendment speedy trial rights were violated. The Tenth Circuit evaluated the delays, finding a total delay of 23 and a half months. The Tenth Circuit considered the Barker factors, and found that the length of the delay weighed strongly in Black’s favor. The Tenth Circuit then dissected each delay, attributing portions to Black for the periods of time in which he filed motions or requested continuances and to the government for periods in which they did not vehemently prosecute Black. After carefully considering each time period, the Tenth Circuit determined that the government was responsible for about 7 months of the delay and Black was responsible for about 12 months. The Tenth Circuit next assessed whether the delays were purposeful attempts by the government to strategically position itself and agreed with Black’s concession that they were not. Next, the Tenth Circuit considered whether Black forcefully and frequently asserted his speedy trial rights, and found that only one of his speedy trial assertions was forceful. The Tenth Circuit noted that Black’s counsel’s speedy trial objections were especially weak when he remarked that he was only asserting speedy trial to preserve his previous motion. Finally, the Tenth Circuit found that Black could not show he was prejudiced by the delay. After balancing all the factors, the Tenth Circuit found that the majority weighed in favor of the government.

The Tenth Circuit remanded for resentencing but found no violation of Black’s constitutional right to a speedy trial.

Tenth Circuit: Search of Emails by Semi-Public Entity Required Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ackerman on Friday, August 5, 2016.

Walter Ackerman used his AOL account to send an email with four attachments. AOL’s server identified the hash value of one of the attachments as child pornography and forwarded the email to the National Center for Missing and Exploited Children (NCMEC). The NCMEC opened all four attachments and discovered they were all child pornography. Ackerman was indicted on charges of possession and distribution of child pornography by a federal grand jury. He pleaded guilty, reserving the right to appeal the district court’s denial of his motion to suppress the fruits of NCMEC’s investigation.

On appeal, Ackerman argued that NCMEC’s actions amounted to an unreasonable search of his email and its attachments because no one obtained a warrant or invoked a lawful basis for failing to obtain one. The Tenth Circuit first addressed whether NCMEC qualified as a governmental entity or agent and not a private party. The Tenth Circuit next questioned whether the NCMEC simply repeated the search conducted by AOL or exceeded the scope of AOL’s investigation.

The Tenth Circuit evaluated whether NCMEC is a private party or a governmental entity, noting that when a party is endowed with law enforcement powers beyond those enjoyed by a private citizen, generally police powers are engaged. The Circuit found that NCMEC’s powers extended far beyond those enjoyed by private citizens. NCMEC was created by statute to operate as a clearinghouse for missing and exploited children and to provide forensic technical assistance to law enforcement. The Circuit found that the NCMEC’s creation and functions proved it was acting as a governmental entity when it opened Ackerman’s email and viewed the attachments. The Tenth Circuit further found that even if it had determined NCMEC was a private entity, its searches may still be subject to the Fourth Amendment if the entity is acting as a government agent. The Circuit found that NCMEC was acting as an agent in this case. The Tenth Circuit rejected the government’s contention that it could reverse only if the district court clearly erred, finding that the argument advanced on appeal was a legal one regarding the definition of agency.

After determining that the NCMEC was a governmental entity or agency, the Tenth Circuit turned to whether the NCMEC’s search exceeded the scope of the search performed by AOL. The Circuit found that it did. AOL only identified one of the attached images on Ackerman’s email as child pornography, whereas NCMEC opened all four images and the email. Because NCMEC could have learned private and protected facts when it opened the email, and because Ackerman had a reasonable expectation of privacy in his email, the Tenth Circuit found that NCMEC impermissibly exceeded the scope of AOL’s intrusion.

The Tenth Circuit reversed the district court’s denial of Ackerman’s motion to suppress and remanded for further proceedings.

Colorado Court of Appeals: No Confrontation Clause Right Exists in Restitution Hearing

The Colorado Court of Appeals issued its opinion in People v. Vasseur on Thursday, July 14, 2016.

Colorado Organized Crime Control Act—Restitution—Sixth Amendment—Right of Confrontation—Hearsay—Foundation—Authentication.

Vasseur pleaded guilty to violating the Colorado Organized Crime Control Act for her participation in an Internet scam through which money was stolen from 374 victims. She was sentenced and the district court imposed $1,010,467.55 in restitution, based on a spreadsheet summarizing the criminal acts and the testimony of the primary investigator on the case.

Vasseur appealed the restitution order, contending that the district court erred when it considered the summary spreadsheet in imposing restitution because (1) it violated her Sixth Amendment right of confrontation, and (2) the spreadsheet contained inadmissible hearsay, lacked a proper foundation, and had not been properly authenticated. The right of confrontation and the Colorado Rules of Evidence do not apply to sentencing proceedings, including restitution hearings. Therefore, the district court did not abuse its discretion when it relied on the spreadsheet in determining the amount of restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Note Written by Murder Victim was Testimonial Hearsay

The Colorado Court of Appeals issued its opinion in People v. McFee on Thursday, June 30, 2016.

L.E. was an in-house manager of a residential facility for people with HIV and AIDS. One night, a resident found her lying in a pool of blood in the hallway. By the time police arrived, L.E. was dead. A few months later, police arrested Jonathan McFee, L.E.’s ex-boyfriend, for the murder. At trial, numerous witnesses testified about hearing McFee threaten to kill L.E., and the prosecution introduced an audio recording of a statement muttered by McFee during a break in interviewing that sounded like “I did it. That bitch.” A handwritten note from L.E. was admitted into evidence, which expressed that McFee had threatened to kill her and it was only a matter of time until he succeeded. The jury convicted McFee of first degree murder, and he was sentenced to life in prison without the possibility of parole.

McFee appealed, arguing that testimony of L.E.’s mother, daughter, and cousin about McFee’s intention to kill L.E. were hearsay and were improperly admitted. McFee also argued that the handwritten note was testimonial hearsay that was improperly admitted. The district court determined that the statements of the mother, daughter, and cousin were admissible under CRE 807 (residual exception), and arguably under CRE 803(3) (state of mind exception). The court of appeals agreed with the district court that the statements were properly admitted under CRE 807. The court of appeals found that L.E.’s statements were trustworthy because they were made spontaneously to close family members, they were not self-serving, and L.E. had no motive to lie about McFee’s threats. Additionally, all of the witnesses testified that L.E. seemed afraid when describing the threats. Further, the statements tended to show that L.E.’s and McFee’s relationship was volatile and he had a motive to kill. The court found that the statements were properly admitted.

Next, McFee argued that L.E.’s note was testimonial hearsay and should have been excluded because it violated his Sixth Amendment Confrontation Clause rights. The court of appeals agreed, but found that any error in admitting the note was harmless beyond a reasonable doubt. The court of appeals found that the note was created out of court to substitute for testimony in the event of L.E.’s death and therefore was “testimonial.” And because L.E. was unavailable at trial and McFee had not had prior opportunity for cross-examination, admission of the note violated McFee’s Confrontation Clause rights. However, the court found that any error in admitting the note was harmless beyond a reasonable doubt. Several witnesses testified as to threats McFee had made to kill L.E., McFee’s DNA was on the murder weapon, he had a key to the facility where L.E. lived on his key ring at the time of his arrest, he failed to contact L.E.’s daughter after the murder despite his close relationship with her, and he may have said “I did it” on the audio recording. Given the plentiful evidence of McFee’s guilt, the court found that admission of the note was harmless beyond a reasonable doubt.

The court of appeals affirmed McFee’s conviction.

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.