October 16, 2017

Colorado Court of Appeals: Findings of Inventory Search of Vehicle Need Not Be Suppressed Because Search Was Lawful

The Colorado Court of Appeals issued its opinion in People v. Camarigg on Thursday, September 7, 2017.

Driving Under the Influence of Alcohol—Impound—Vehicle—Inventory Search—Warrant—Prosecutorial Misconduct—Burden of Proof—Beyond a Reasonable Doubt—Evidence—Intent to Manufacture Methamphetamine.

After defendant was arrested for driving under the influence of alcohol (DUI), officers impounded his vehicle because it was parked in front of a gas pump at a gas station. The officers conducted an inventory search of the vehicle and discovered a sealed box containing items commonly used in the manufacture of methamphetamine. Based on those items, they obtained a warrant to search the vehicle and found additional items used to manufacture methamphetamine. Defendant moved to suppress the evidence obtained from the search and warrant. The trial court denied the motion. A jury convicted defendant of DUI, careless driving, and possession of chemicals, supplies, or equipment with intent to manufacture methamphetamine.

On appeal, defendant argued that the trial court should have excluded evidence discovered in the inventory search of his vehicle and under the subsequently issued warrant. A vehicle is lawfully taken into custody if the seizure is authorized by law and department regulations and is reasonable. Inventory searches are an exception to the warrant requirement and are reasonable if (1) the vehicle was lawfully taken into custody; (2) the search was conducted according to “an established, standardized policy”; and (3) there is no showing that police acted in bad faith or for the sole purpose of investigation. Here, the decision to impound the vehicle was reasonable, and the inventory search was conducted according to standard policy and was constitutional. Because the inventory search was constitutional, evidence obtained under the subsequently issued warrant could not have been tainted.

Defendant next argued that the prosecutor improperly quantified the concept of reasonable doubt and lowered the burden of proof by using a puzzle analogy during closing argument. The prosecutor used a puzzle analogy to convey the difference between proof beyond a reasonable doubt and proof beyond all doubt, which other courts have found permissible. Further, the prosecutor used the analogy to rebut the defense argument that evidence of defendant’s guilt was speculative. The Court of Appeals concluded there was no reasonable possibility that the prosecutor’s analogy contributed to defendant’s conviction. Additionally, the jury was properly instructed on the reasonable doubt standard. Therefore, any impropriety in the prosecutor’s analogy was harmless beyond a reasonable doubt.

Lastly, defendant contended there was insufficient evidence that he intended to manufacture methamphetamine. There was sufficient circumstantial evidence from which a rational jury could conclude beyond a reasonable doubt that defendant intended to manufacture methamphetamine.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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CLE Program: Discovering Discovery

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

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

Tenth Circuit: Officers Executing Warrant Acted in Objectively Reasonable Reliance

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

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

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

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

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

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

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

Tenth Circuit: Contents of Vehicle Search Suppressed Where Search Illegal at Inception

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez on February 27, 2017.

On June 21, 2013, Angela Lopez was driving eastbound in Kansas. Kansas Highway Patrol Trooper Robert Krause pulled the vehicle over for going 79 miles per hour in a 65-mile-per-hour zone. Adrienne Lopez was in the passenger seat. Throughout the encounter, Adrienne, rather than Angela, did almost all of the talking, which Krause said could be a sign of nervousness. Krause asked Angela for her license, insurance, and car-rental paperwork. Krause then looked in the back seat of the car. Upon doing so, Adrienne said, “Don’t look back there, it’s a mess.” Krause asked about their travel plans. Adrienne told him that they were going form California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” Angela provided Krause a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license, rather than her actual license.

Krause asked both occupants if they had drugs in the car, to which both replied no. Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. Krause warned Angela for speeding and turned to walk away. He immediately turned back and asked Angela if she would answer a few more questions, which she consented to. Krause asked where they were heading. Adrienne answered that she did not know the exact city because her phone did not have reception.

Krause then asked the Defendants if he could search the vehicle. They refused. Krause then detained them until a drug dog could be brought to the vehicle, which took about twenty minutes. The dog alerted Krause to the front seat where Adrienne’s purse was located. Adrienne admitted having some marijuana in her purse, which Krause found and then searched the rest of the car. He found four packages in a cooler in the back seat of methamphetamine. The packages totaled 1,766 grams of methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress the evidence of methamphetamine found in the car. The two were convicted of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. The Defendants appealed.

The Tenth Circuit first established that a traffic stop must be justified at its inception and that the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. A stop may be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring.

Here, the Defendants did not consent to the extension of the stop by Krause beyond its initial purpose. Therefore, the Tenth Circuit addressed whether Krause had reasonable suspicion that the Defendants were engaged in criminal activity, which the government bears the burden of proving.

The government put forth three suspicious factors that justified detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy, even though it was not; and (3) Defendant’s travel plans were implausible.

The Tenth Circuit first addressed Adrienne’s nervousness. It stated that it consistently assigns that factor limited significance because innocent people can be nervous in wide varieties. In order to contribute to reasonable suspicion, the Tenth Circuit held that there must be extreme nervousness, which the district court did not find, and Krause did not so testify.

Next, the Tenth Circuit held that Adrienne’s comments about the backseat gave little support for reasonable suspicion. It stated that in hindsight, the comments seemed revealing. But at the time, there was nothing incriminating in view on the backseat. Further, nothing stopped Krause from taking a closer look through the back window.

Finally, the Tenth Circuit addressed the government’s argument that the Defendants’ travel plans were implausible. The government pointed to the fact that the two only rented the car for two days, which was not enough time to drive to their destination and return. The Tenth Circuit held that the travel plans might have been overly ambitions, but they could reasonably have been done. First, the Tenth Circuit pointed to the fact that they were driving through the night, which was why two drivers were necessary. Next, because they were rescuing Adrienne’s sister from an abusive boyfriend, it was reasonable to assume they would not stay at the destination very long. Finally, because it was understandable that the sister needed to move to protect herself from her abusive boyfriend, it was reasonable that the Defendants did not need a more precise location until they were closer to the destination. Further, the Tenth Circuit stated that it has generally been reluctant to give weight to the reasonable-suspicion analysis to unusual travel purposes, except in extreme cases.

The Tenth Circuit held that the circumstances did not suffice to justify the continued detention of the Defendants. Therefore, the Tenth Circuit held that the evidence seized from the car must be suppressed.

The Tenth Circuit then quickly dispatched with the governments two remaining arguments. First, the government argued that the evidence was admissible against Adrienne because the discovery of the drugs was not the fruit of her unlawful detention. The Tenth Circuit held that because Krause seized the marijuana from Adrienne’s purse, and the detention of Adrienne’s personal property led to the search of the car and discovery of the methamphetamine, Adrienne did have standing to challenge the admission into evidence of the drugs.

Second, the government argued that the detention was lawful as to Angela because there was probable cause to arrest her for driving while not in possession of her driver’s license. The Tenth Circuit held that there was no probable cause to arrest Angela. First, the documents Angela gave Krause would likely be a “driver’s license” under the Kansas statute. Further, even if not a “driver’s license,” Krause learned from the dispatcher that she had a valid driver’s license in California, and therefore had enough information to know that she could not be convicted for the offense under the statute. The Tenth Circuit held that an officer does not have probable cause to arrest a person for a crime he know she could not be convicted of.

In sum, the Tenth Circuit reversed the Defendants’ convictions and remanded to the district court for proceedings consistent with its opinion.

Tenth Circuit: Sexual Assault Victim’s Prior Mental Health History Not Even Marginally Relevant to Assault at Issue

The Tenth Circuit Court of Appeals issued its opinion in United States v. John on February 27, 2017.

Defendant and the victim were related. At trial, the victim testified to the following facts: The victim was in the shower when Defendant showed up at her house. He started undressing in front of the shower door while the victim was still in the shower. Defendant moved towards the victim and the victim struggled to get away. Defendant pulled the towel away from the victim and pushed her head toward his “private parts.” The victim was able to get away from Defendant and grabbed a blanket before running outside. When outside, the victim called the police. Officers arrived after Defendant had left. The officers found the shower door tilted and the bathroom trashcan turned over. No forensic testing occurred. Defendant was convicted on one count of attempted aggravated sexual abuse in Indian country and one count of abusive sexual contact in Indian county after a jury trial.

At trial, Defendant wanted to cross-examine the victim about an incident that occurred in Phoenix. The district court did not allow the line of questioning and the Defendant challenged the courts ruling on appeal claiming it violated his Confrontation Clause rights under the Sixth Amendment and his right to present a complete defense under the Fifth and Sixth Amendments.

The Tenth Circuit summarized the facts of the Phoenix incident that it obtained from police reports. The victim had visited her sister in Phoenix. She alleged that her sister pressured her to drink. After the two argued, the victim tried to cut her writs. She was then taken to the hospital where she was transferred to an inpatient behavioral-health unit after telling the staff that she had been having suicidal thoughts for two years. During intake, she denied using any illicit substances, even though she told emergency staff that she used marijuana. The intake staff determined she had a mood disorder, but she was discharged without any medication needed. The victim’s sister denied to police that she gave the victim alcohol or coerced her to drink. Because the police could not determine how the victim got the alcohol, they closed the case.

On appeal, the Defendant argued that the Phoenix incident showed that the victim would falsely accuse him of sexual assault given her poorly controlled behavior and drug use revealed by the incident. It also would show her propensity to lie and accuse family members. These facts could have led the jury to draw “vital inferences” in his favor.

The Tenth Circuit held that because the Defendant only argued at trial that the Phoenix incident would show that the victim had an impaired ability to perceive events, and not the reasons given on appeal, Defendant was precluded from arguing such reasons on appeal. In fact, the Tenth Circuit points to the fact that Defendant’s counsel rejected the possibility of using the Phoenix incident for the reasons stated on appeal, which the Tenth Circuit held was an “intentional relinquishment or abandonment of a known right.”

The Tenth Circuit held that Defendant’s Sixth Amendment right to confrontation was not violated because that right is not unlimited. The Supreme Court has held that trial judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about harassment, prejudice, and confusion of the issues. The Tenth Circuit held that the Phoenix incident was not even marginally relevant to the victim’s ability to remember or relate the shower incident. It would not show that the victim was on drugs at the time of the shower incident. Therefore, the Tenth Circuit held that no lay person could draw those inferences.

Next, the Tenth Circuit addressed the Defendant’s challenges to three jury instructs concerning the assessment of evidence.

The first challenged instruction stated: “The testimony of the complaining witness need not be corroborated if the jury believes the complaining witness beyond a reasonable doubt.” Defendant argued that the instruction did no accurately reflect the government’s burden of proving each element of the charged offenses beyond a reasonable doubt. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it properly informed the jury that it could convict on the basis of the testimony of a single witness, only if they believed that witness. Further, another instruction told the jurors that they could not convict unless they found each element of each offense beyond reasonable doubt.

The second challenged instruction stated: “An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that a witness has talked to an attorney does not reflect adversely to the truth of such testimony.” Defendant argued that this instruction insulated from the jury’s scrutiny the cross-examination of the victim about being improperly influenced by the prosecutor. The Tenth Circuit held that the district court did not abuse its discretion by giving this instruction because it did not prevent defense counsel from making a commonsense suggestion that inappropriate coaching influenced the witness, which the counsel actually made.

The final challenged instruction stated: “You may infer, but you are certainly not required to infer, that a person intends the natural and probably consequences of acts knowingly done or knowingly omitted.” Defendant argues that this instruction was ambiguous, because it was not stated which element the instruction was meant to modify, and that it was confusing because it created uncertainty as to the requisite level of intent. The Tenth Circuit held that the district court did not abuse its discretion by issuing this instruction because the court made clear to the jury that the burden was on the government to prove the requisite intent beyond a reasonable doubt.

Finally, the Tenth Circuit held that the district court did not err in declining to instruct the jury that it could consider the lesser-included charge of simple assault, rather than just the charges of attempted aggravated sexual abuse and abusive sexual contact. The district court held that there was no evidence that the encounter was anything but sexual. The Tenth Circuit affirmed this decision holding that the jury could reasonably have found that the alleged incident did not occur, but that there was no reasonable grounds for believing that Defendant assaulted the victim but with no sexual intent.

The Tenth Circuit affirmed the district court’s judgment.

Tenth Circuit: No Clearly Established Right to Use Inflammatory Language in Course Assignment Without Being Criticized or Pressured to Make Revisions

The Tenth Circuit Court of Appeals published its opinion in Pompeo v. Board of Regents for the University of New Mexico on Tuesday, March 28, 2017.

Ms. Pompeo was a graduate student at the University of New Mexico (UNM). Ms. Pompeo filed a 42 U.S.C. § 1983 claim against the Board of Regents of UNM, and Caroline Hinkley and Susan Dever in their individual capacities, for violation of her First Amendment rights. Ms. Pompeo submitted a paper that contained language relating to a politically charged topic. The Defendants met with the student on several occasions to assist the student in rewriting the paper to include citable authority and language consistent for an academic audience. Ms. Pompeo did not rewrite the paper and claimed she was banned from the class. The district court granted summary judgment in favor of the individual defendants because they were entitled to qualified immunity. The UNM Board of Regents was immune under the Eleventh Amendment. Ms. Pompeo appealed.

The Tenth Circuit exercised jurisdiction under 29 U.S.C. 1291 and it reviewed the grant for summary judgment de novo.

The court evaluated the issue of whether the defendants were entitled to qualified immunity, focusing on the whether “the right at issue was clearly established.” For a right to be clearly established, “in the light of pre-existing law the unlawfulness must be apparent.” Within the specific context of the case, the particular conduct is clearly established if “existing precedent must have placed the statutory or constitutional question beyond debate.” Further, “a court must assess whether the right was clearly established against a backdrop of the objective legal reasonableness of the actor’s conduct.”

The parties agree that the dispute involved “school-sponsored speech” that “a school affirmatively promotes, as opposed to speech that it tolerates.” Educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Reviewing courts give “substantial deference to educators’ stated pedagogical concerns.” “Courts may override an educator’s judgment where the proffered goal or methodology was a sham pretext for an impermissible ulterior motive.” The educator may “limit or grade speech in the classroom in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion or political persuasion.” The court found that summary judgment was appropriate in this case because the defendants’ actions were justified as truly pedagogical.

Ms. Pompeo argued that the right is clearly established by precedent that “an instructor cannot restrict a student’s speech based on the instructor’s hostility to the viewpoint expressed in the speech and pretextual explanation for the legitimate reason for the restriction of speech will not pass constitutional muster.” The court rejected this argument. “Our jurisprudence “entrusts to educators these decisions that require judgments based on viewpoints.” Further, “clearly established law would not put defendants on notice that such conduct is unconstitutional.” Therefore, under Fleming educators are not prohibited from engaging in viewpoint discrimination.”

The court stated that the inquiry into whether the pedagogical concern not well established by case law. The inquiry is either objective or subjective. However, the Tenth Circuit did not refine the inquiry in this decision because it found that the defendants are entitled to qualified immunity under either standard. “The actions taken by Hinkley and Dever were sufficiently related to pedagogical goals that the claimed unconstitutional nature of their particular conduct was not clearly established.” Additionally, the pedagogical goals were legitimate. The defendants’ actions “encouraged critical analysis, to avoid unsupported generalizations, and maintain focus on assigned material rather than a student’s general opinions.”

The court AFFIRMED the district court’s grant of summary judgment in favor of defendants.

Colorado Court of Appeals: Defendant Waived Voluntariness Claim by Failing to Raise it At Suppression Hearing

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, June 29, 2017.

Due Process—Statements to Police—Interrogation—Voluntariness—Promises—Specific Performance—Waiver—Suppression Hearing.

Defendant petitioned for a writ of certiorari to the Colorado Supreme Court. The court granted the petition, vacated the judgment in Cardman I, and remanded to the court of appeals for reconsideration of the trial court’s failure to hold a hearing regarding the alleged promises the detective made to defendant during the interview. The specific issue on appeal was whether “the district court violated the defendant’s constitutional right to due process and reversibly erred by admitting statements the defendant made to a detective without first determining whether the statements were voluntary and whether the defendant was entitled to specific performance of direct and/or implied promises made to him by the detective during the interrogation.”

Defendant contended that statements he made in a police interview were not voluntary and that the trial court erred by not holding a hearing sua sponte on the voluntariness of the statements. Although there were serious concerns with the police interrogation tactics used in this case, defendant waived any arguments on the voluntariness issue by not raising it during the suppression hearing. Further, defendant did not request and the court was not required to sua sponte hold a hearing on voluntariness.

Defendant also contended that the court of appeals must remand for a hearing on whether he was entitled to specific performance of alleged promises made to him by police during an interview. However, defendant did not seek to enforce the alleged promises before trial and cited no cases in support of his argument.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Concealed Weapon Statute Requires Person to Carry Weapon “Unlawfully”

The Colorado Court of Appeals issued its opinion in People in Interest of L.C. on Thursday, June 15, 2017.

Protection Order—Constitutionality—Evidence—Possession of Weapon.

A police officer observed L.C. in a public park after hours. The officer contacted L.C. and discovered that he was subject to a protection order, which provided, among other things, that L.C. was not to “possess or control a firearm or other weapon.” When the officer searched L.C.’s backpack, he found a knife with a five and one-half inch blade inside a sheath. L.C. was found guilty of violating a protective order and unlawfully carrying a concealed weapon. He was adjudicated delinquent and sentenced to probation. L.C. petitioned for district court review, which was denied.

On appeal, L.C. contended that C.R.S. § 18-12-105, which defines the offense of unlawfully carrying a concealed weapon, is unconstitutionally vague and overbroad. The statute is not unconstitutionally vague, and the merits of L.C.’s overbreadth argument were not addressed because he did not raise it in the district court. L.C. also contended that the evidence was insufficient to prove that he carried a concealed knife “on or about his . . . person,” as required to sustain a conviction for the statutory violation. He argued that because the knife was in a sheath in an interior zippered compartment of his backpack, it was not readily accessible and therefore was not “on or about” his person. The Court of Appeals disagreed with L.C.’s interpretation.

L.C. further contended that because the prosecution failed to prove that he did anything directed at the protected person named in the protection order, the evidence was insufficient to establish that he violated it. Violation of a protective order does not always require proof that the accused contacted the protected person. Thus, evidence that the protection order contained a provision prohibiting L.C. from possessing a weapon and that L.C. was found in possession of a weapon was sufficient to sustain his conviction for violation of a protection order.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Nontestimonial Hearsay Statements do Not Implicate Defendant’s Right to Confrontation

The Colorado Supreme Court issued its opinion in Nicholls v. People on Monday, June 19, 2017.

Criminal Trials—Right of Accused to Confront Witnesses—Exceptions to Hearsay Rule—Statements Against Interest.

In light of the U.S. Supreme Court’s holding in Davis v. Washington, 547 U.S. 813 (2006), the Colorado Supreme Court held that nontestimonial hearsay statements do not implicate a defendant’s state constitutional right to confrontation, overruling Compan v. People, 121 P.3d 876 (Colo. 2005), which held otherwise. Because the hearsay statements at issue in this case were nontestimonial, they did not implicate Colorado’s Confrontation Clause, and the court of appeals did not err in concluding that defendant’s confrontation right was not violated. The court further held that the third requirement for the admission of inculpatory hearsay statements against interest, announced in People v. Newton, 966 P.2d 563, 576 (Colo. 1998) (requiring corroborating circumstances to demonstrate the statement’s trustworthiness), is not constitutionally required for nontestimonial statements against interest. To admit a third party’s nontestimonial statements against interest under the version of CRE 804(b)(3) that existed at the time of defendant’s 2008 trial, only two conditions needed to be satisfied: (1) the witness must have been unavailable, and (2) the statement must have tended to subject the declarant to criminal liability. The court concluded that the third party’s nontestimonial statements against interest satisfied these two requirements, and the trial court did not abuse its discretion in admitting these statements as a statement against interest under CRE 804(b)(3), as that rule existed at the time of defendant’s trial. Finally, the court held that the trial court did not abuse its discretion in admitting testimony about defendant’s response to the death of her second child because the testimony was relevant and not unduly prejudicial; nor did the trial court plainly err in admitting testimony about the cause of the second child’s death because the brief, isolated statements did not so undermine the trial’s fairness as to cast serious doubt on the reliability of defendant’s conviction. Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Encounter with Police Deemed Consensual Under Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Shoen on Monday, June 5, 2017.

Fourth Amendment—Consensual Encounters.

In this case, the Supreme Court considered whether defendant’s encounter with

police, during which he confessed to possessing a controlled substance, was consensual or whether it constituted an impermissible seizure under the Fourth Amendment. The Court concluded that under the totality of the circumstances, the encounter was consensual. Accordingly, the Court reversed the trial court’s order suppressing evidence from the encounter, and remanded the case for further proceedings consistent with this opinion.

Summary provided courtesy ofThe Colorado Lawyer .

Colorado Court of Appeals: Aggravated Incest Statute Constitutional As Applied to Stepchildren of Common Law Marriages

The Colorado Court of Appeals issued its opinion in People v. Perez-Rodriguez on Thursday, June 1, 2017.

Sexual Assault—Minor—Aggravated Incest Statute—Common Law Marriage—Stepchildren—Unconstitutionally Vague as Applied—Jury Instruction—Mens Rea—Prosecutorial Misconduct—Due Process—Admission—Involuntary.

Defendant and A.S. lived together, and though they were never formally married, they publicly referred to each other as husband and wife. J.H-S. was one of A.S.’s children from a previous marriage, and while defendant never formally adopted her, they referred to each other as father and daughter. When J.H-S. was 15 years old, defendant forced her to have sexual intercourse with him on two separate occasions and impregnated her. When defendant was taken into custody, a detective questioned him for about 40 minutes. He was advised of his Miranda rights and signed a waiver. Defendant initially denied having had sexual intercourse with J.H.-S., but after about 15 more minutes, he confessed. Defendant was convicted of two counts each of aggravated incest, sexual assault on a child by one in a position of trust as a pattern of conduct, and sexual assault with the actor 10 years older than the victim.

On appeal, defendant first contended that the aggravated incest statute is unconstitutionally vague as applied to stepchildren of common law marriages. However, there is sufficient guidance through statute, case law, and the plain meaning of “stepchild” that a person in a common law marriage has sufficient notice as to the prohibited conduct of aggravated incest.

Defendant next contended that the trial court’s elemental instruction on aggravated incest failed to properly instruct the jury on the scope of the mens rea required to sustain a conviction. Specifically, defendant claimed that the way the jury instruction was written, the “knowingly” mens rea applied only to his act of subjecting J.H-S. to sexual penetration or sexual intrusion, and not to whether he knew she was his stepchild. Regardless of whether the instruction was erroneous, however, the evidence that defendant knew J.H-S. was his stepdaughter was overwhelming. Therefore, any error was not plain error.

Defendant then argued that the prosecution misstated the law on common law marriage during rebuttal closing argument, thereby committing reversible misconduct. The court’s instruction properly defined common law marriage and cohabitation. Although the prosecutor’s simple reference to “cohabitation,” viewed in isolation, may have misstated the law, when viewed in context as rebuttal to defendant’s arguments, there was no plain error.

Finally, defendant asserted that his confession was involuntary and that its admission violated his state and federal due process rights. Based on the totality of the circumstances, defendant’s admission was voluntary and the trial court did not err in admitting it into evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.