September 24, 2016

Colorado Court of Appeals: Breath Test Must Occur Within Two Hours of Driving for Revocation Proceedings

The Colorado Court of Appeals issued its opinion in Edwards v. Colorado Department of Revenue, Motor Vehicle Division on Thursday, September 22, 2016.

Robin Edwards was pulled over for speeding at 8:51 a.m. on September 7, 2014. The officer who pulled her over observed that Edwards had bloodshot eyes and slurred speech, and requested that she perform roadside sobriety maneuvers. Her stumbling and lack of balance indicated she was intoxicated, so the officer informed Edwards of Colorado’s express consent law and asked if she would complete a blood or breath test. She agreed to a breath test and was transported to the local police department.

Due to problems during the testing sequence, Edwards’ breath tests were not completed until 10:52 a.m. and 10:56 a.m. The intoxilyzer report from the two samples showed Edwards’ BAC to be .229 grams of alcohol per two hundred ten liters of breath, well above the .08 limit for revocation. The Department initiated proceedings to revoke Edwards’ driver’s license.

The arresting officer testified at the revocation hearing that Edwards’ .229 BAC result was based on breath samples taken more than two hours after the initial traffic stop. Edwards argued that her driver’s license should not be revoked because she provided valid breath samples after the two-hour time period required by the revocation statute. The hearing officer found that Edwards’ breath samples were obtained outside the two-hour window, but ruled that the test administrator performed in “substantial accordance” with the statute, and, because the testing began at 10:50 a.m., it commenced within two hours of when Edwards stopped driving. The hearing officer revoked Edwards’ driver’s license based on excessive BAC. The district court affirmed the hearing officer on different grounds, finding that based on Edwards’ excessive BAC, it was more probable than not that she had driven with an excessive BAC.

Edwards appealed, contending the hearing officer erroneously interpreted the revocation statute, and because her breath samples were obtained outside the statutory two-hour window, her results could not be used at the revocation hearing. The Colorado Court of Appeals analyzed C.R.S. § 42-2-126(2)(b), finding that the statute mandated that breath or blood results must be obtained within two hours after driving. The court found ample legislative and case law support that the two-hour window is mandatory, and that test results obtained outside the window must not be considered. Because Edwards’ test results were obtained after the two-hour window expired, they could not be considered at the revocation hearing.

The court of appeals reversed the district court with instructions to set aside the order of revocation. The court of appeals also remarked that its findings would not affect the criminal proceedings against Edwards.

Colorado Court of Appeals: Plea of Guilty Constitutes Conviction for Purposes of Revocation Proceedings

The Colorado Court of Appeals issued its opinion in People v. Blackwell on Thursday, September 22, 2016.

Aaron Blackwell pleaded guilty to theft from an at-risk victim and received a deferred judgment with the condition that he could violate no federal, state, or local criminal law during the deferral period. He later pleaded guilty in an unrelated case to driving after revocation prohibited (DARP), a class 1 misdemeanor. The district court also deferred the judgment in the DARP case. The prosecution then filed a motion to revoke the deferred judgment in the theft case based on Blackwell’s guilty plea in the DARP case. The district court revoked the deferred judgment.

Blackwell appealed, contending his guilty plea in the DARP case was not sufficient to prove that he violated a state criminal law. The Colorado Court of Appeals evaluated whether a guilty plea constitutes a “conviction” for purposes of the revocation hearing statute. The court evaluated C.R.S. § 16-7-206(3), which provides that a court’s acceptance of a guilty plea acts as a conviction for the offense. The court of appeals concluded the district court did not abuse its discretion by revoking Blackwell’s deferred judgment. Blackwell argued that the Colorado Supreme Court’s decision in Kazadi v. People, 2012 CO 73, ruled that a guilty plea resulting in a deferred judgment is not a judgment of conviction, but the court of appeals disagreed, finding that the supreme court has distinguished between a “conviction” and a “judgment of conviction.”

The court of appeals affirmed the district court.

Tenth Circuit: Jurisdictional Time Limit Not Tolled When Rule 4(a)(4)(A) Requirements Not Met

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Akers on Tuesday, September 20, 2016.

George Rouse hanged himself shortly after being booked into the Grady County Law Enforcement Center in Oklahoma. His mother, Regina Williams, brought suit under 42 U.S.C. § 1983, arguing the defendants knew he was suicidal but failed to inform jail staff of that fact. Defendants asserted qualified immunity and moved to dismiss Williams’ § 1983 claim. The district court denied the motion on October 8, 2014, concluding Williams’ complaint adequately alleged facts showing defendants’ violated Rouse’s clearly established Fourth Amendment rights.

Eight months later, defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. The district court denied the motion on July 31, 2o15. Defendants then filed an appeal of the October 2014 motion with the Tenth Circuit. Noting the jurisdictional defect, the Tenth Circuit requested additional briefing from the parties on August 24, 2015. Defendants argued that because their notice of appeal was filed only four days after the district court denied their motion to reconsider, it was timely filed as to the October 2014 motion to dismiss.

The Tenth Circuit disagreed. The Tenth Circuit noted that Fed. R. App. P. 4(a)(4)(A)(vi) allows a party to enlarge the 30-day time limit for filing an appeal if that party timely files a Rule 60(b) motion, in which case the time limit is tolled until 30 days after the entry of the order disposing of the motion for reconsideration. The Tenth Circuit remarked that it appears that defendants believed they could enlarge the time for filing their notice of appeal from the October 2014 order by filing a motion for reconsideration. However, because the motion for reconsideration was not filed within Rule 4(a)(4)(A)’s mandated 30-day time limit, the notice of appeal was not timely.

The Tenth Circuit also addressed the defendants’ attempt to change the focus of the appeal after the Tenth Circuit requested additional briefing on jurisdiction. Although the Tenth Circuit could look to the notice of appeal, the docketing statement, and the request for the district court to stay proceedings as evidence of defendants’ intent, the Tenth Circuit found only an intent to appeal the October 2014 order, not the July 2015 order. Due to the untimeliness of the appeal from the October 2014 order, the Tenth Circuit lacked jurisdiction to consider the defendants’ arguments.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Residual “Crime of Violence” Definition in INA is Unconstitutionally Vague

The Tenth Circuit Court of Appeals issued its opinion in Golicov v. Lynch on Monday, September 19, 2016.

Constantine Fedor Golicov, a lawful permanent resident, was convicted in Utah state court of failing to stop at a police officer’s command, a third-degree felony. He was sentenced to five years’ imprisonment. While serving his sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his Utah conviction constituted an aggravated felony under the Immigration and Nationality Act (INA). Golicov denied the charge and moved to terminate removal. An immigration judge agreed with Golicov, denying the charge and terminating removal proceedings. DHS appealed, and the BIA reversed the immigration judge and remanded to the IJ to “explore Golicov’s potential eligibility for relief.”

On remand, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). The IJ rejected his argument on remand, and the BIA affirmed the IJ. Golicov appealed to the Tenth Circuit.

The Tenth Circuit noted that the Due Process Clause of the Fifth Amendment requires specificity in order to properly apprise ordinary people of the conduct that is prohibited. The government initially argued that because a removal proceeding is civil, the criminal law holding in Johnson should not apply. The Tenth Circuit disagreed, noting that because deportation proceedings can strip non-citizens of their rights, statutes that impose the penalty of deportation are subject to Fifth Amendment vagueness challenges.

The Tenth Circuit reviewed Johnson‘s holding that the residual clause in the Armed Career Criminal Act was void for vagueness, and noted the similarity between the ACCA residual clause and the INA’s residual definition of “crime of violence.” The Tenth Circuit remarked that two circuits have addressed the identical issue and both determined that the INA residual definition was void for vagueness, and two other circuits addressed the issue in a criminal context and also determined the INA’s definition was unconstitutionally vague. The Tenth Circuit agreed with its sister circuits that the INA’s residual “crime of violence” definition is void for vagueness.

The Tenth Circuit vacated the order of removal and remanded to the BIA for further proceedings.

Tenth Circuit: Categorical Approach Applies to Sentence Enhancement When Statutory Definition Differs from Guidelines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez-Cruz on Monday, September 12, 2016.

Jesus Domingo Martinez-Cruz and a friend were walking along I-10 in New Mexico when they were stopped by border patrol agents. They admitted to carrying contraband across the border, and Martinez-Cruz admitted that he was not supposed to be in the United States. The backpacks Martinez-Cruz and his companion were carrying were filled with marijuana. Martinez-Cruz pleaded guilty to three counts: possession with intent to distribute more than 50 kilograms of marijuana, conspiracy to possess with intent to distribute more than 50 kilograms of marijuana, and reentering the United States after removal.

The presentence report recommended an adjusted offense level of 16 for the drug offenses and a base offense level of 8 for the immigration violation. The PSR then enhanced his immigration offense level by 12 levels for having previously been convicted of a felony drug trafficking conspiracy, to which enhancement Martinez-Cruz objected. After a hearing, the district court overruled Martinez-Cruz’s objection, and he was sentenced to 33 months’ imprisonment.

Martinez-Cruz appealed, arguing that the statute under which he was previously convicted did not define “conspiracy,” so the categorical approach should apply. Because the generic definition of conspiracy requires an overt act and he did not perform an overt act, Martinez-Cruz argued he should only receive an 8-level enhancement for his prior conviction.

The Tenth Circuit began by evaluating its prior precedent and that of other circuits. The Tenth Circuit relied on United States v. Dominguez-Rodriguez, 817 F.3d 1190, 1194 (10th Cir. 2016), to support the use of the categorical approach to determine whether a prior conviction qualifies as a drug trafficking offense. The Tenth Circuit focused on the word “conspiring” because Martinez-Cruz’s offense was a conspiracy offense. The generic definition of “conspiracy” requires an overt act, but the statute under which Martinez-Cruz was convicted did not. The government argued that the Tenth Circuit should not apply the categorical approach at all, but if it did, it should hold that an overt act is not required in furtherance of a conspiracy. The government relied on various cases from other circuits to support its position. Because the Sentencing Commission did not “expressly intend” to include § 846 conspiracy convictions in enhancements under § 2L1.2, the Tenth Circuit found the government’s arguments unpersuasive. The Tenth Circuit agreed with Martinez-Cruz that the generic definition of “conspiracy” was a categorical mismatch with § 846, and he should receive an 8-level enhancement instead of a 12-level enhancement. Although the Tenth Circuit’s conclusion differed from that enunciated by the Fifth, Sixth, and Ninth Circuits, the Tenth Circuit found that under its own precedent it was required to apply the categorical approach.

The Tenth Circuit remanded for resentencing.

Colorado Court of Appeals: No Time Limit Exists for Prosecuting Sexual Assaults Where DNA Proves Defendant’s Identity

The Colorado Court of Appeals issued its opinion in People v. Shores on Thursday, September 8, 2016.

Sexual Assault—Statute of Limitations—CRE 404(b) Evidence.

In 1994, an elderly woman was found badly beaten and sexually assaulted. No suspect was initially identified. The victim died in 2000 from cancer. In 2010, the DNA evidence from the victim’s case was matched to Shores’s DNA, but the district attorney’s office chose not to file charges against Shores at that time. Several years later, the Denver Police Department learned that Shores had been tied, through DNA, to a 2013 sexual assault of a woman, D.B., in Texas. This information led to the 2014 charges against Shores for first degree sexual assault and a crime of violence enhancer. Shores was convicted as charged.

On appeal, Shores argued that the trial court erred in denying his motion to dismiss for failure to file charges within the 10-year statute of limitations in effect in September 1994. The change in the statute, however, provides that there is no time limit for prosecuting certain sexual assaults committed after July 1, 1991, if (1) the defendant’s identity is determined in whole or in part by DNA and (2) the offense is reported to a law enforcement agency within 10 years after its commission. Shores conceded that his identity was determined by DNA but argued that the second prong was not met because the victim herself did not report the crime to law enforcement. The statute does not require that the victim be the person who reported the offense, only that the offense was reported. Here, the police had known about the physical assault on the victim from their response to the initial call, and they received further information from the hospital about her condition, including the results of the sexual assault examination kit.  Accordingly, there was no statutory time limit in which to file charges against Shores, and the trial court correctly denied his motion to dismiss.

Shores next argued that the trial court abused its discretion in admitting CRE 404(b) evidence of the 2013 sexual assault in Texas. The evidence relating to D.B. was probative of the ultimate fact of whether Shores committed the offense charged and was logically relevant independent of bad character evidence because it had a tendency to make it more probable that the victim did not consent than it would be without the evidence. The court acted within its discretion in determining that the danger of unfair prejudice did not outweigh the probative value of this evidence.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Request to Change Restitution Payee Is Not New Restitution Request

The Colorado Supreme Court issued its opinion in Johnson v. People on Monday, September 12, 2016.


This case presents the narrow question of whether the People’s motion to change a restitution payee from one victim identified in a restitution order to other victims identified therein (whom the first victim was obliged to pay but did not pay) constitutes a new restitution request that must comply with the statutory requirements for making restitution requests. The county court rejected petitioner’s argument that the People’s request to change the restitution payee was effectively a new restitution request and was untimely, and it granted the People’s motion to change the restitution payee. The district court affirmed on appeal, and the Supreme Court then granted certiorari. Like the district court, the Court concluded that on the facts presented here, the People’s motion to change the restitution payee did not constitute a new restitution request. Accordingly, the Court affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Confrontation Clause Rights Not Violated by Video Conference Deposition

The Colorado Court of Appeals issued its opinion in People v. Hebert on Thursday, September 8, 2016.

Michelle Ann Hebert convinced an elderly gentleman to give her loans totaling several hundred thousand dollars and did not repay him. The elderly gentleman called the police, and Hebert was charged with theft from an at-risk adult. A public defender was appointed for Hebert, and the prosecution moved that same day to depose the victim. The prosecution requested that the victim be deposed from his own home via video conference due to his failing health. The defense argued that allowing a video conference deposition would violate Hebert’s Confrontation Clause rights, and that his assistance would be ineffective because he did not have time to prepare. The district court granted the prosecution’s motion after a hearing, but ordered that the deposition be held in five weeks in order to give the defense time to prepare. Six weeks later, the victim was deposed via video conference and the deposition was recorded. The victim died before trial, so the recorded deposition was admitted at trial.

After the deposition but before trial, Hebert retained private counsel. Shortly thereafter, the People charged Hebert with additional tax-related offenses, and her private counsel moved to withdraw. Hebert requested appointed counsel, but the public defender’s office determined she was ineligible. She represented herself at trial and was convicted on all counts. She appealed, arguing that the district court erred in failing to make its own findings after the district court found her ineligible for appointed counsel, and by admitting the recorded deposition at trial.

The Colorado Court of Appeals first addressed Hebert’s contention about appointed counsel. In her application, Hebert contended she had meager assets, was responsible for three children, and was separating from her husband. On her joint tax return, she claimed approximately $76,000 in income for that year. The district court considered the tax return and Hebert and her husband’s testimony. Her husband testified that they had never separated, and Hebert admitted she had only claimed they were separating so she could qualify for a public defender. The district court considered the evidence and determined Hebert was not qualified for a public defender. The court of appeals determined the district court’s findings were supported by evidence and therefore there was no abuse of discretion.

The court of appeals next evaluated Hebert’s claims that she was denied a fair trial when the district court admitted the video testimony before her counsel had adequate time to prepare for the deposition. The court of appeals perceived no error. The district court specifically postponed the deposition so that counsel would be able to prepare prior to the deposition.

Hebert also argued her Confrontation Clause rights were violated because she did not have the opportunity to confront her accuser face-to-face. The court of appeals noted that the right to confront an accuser face-to-face is not absolute, and when public policy concerns warrant and the reliability of testimony is otherwise assured, testimony may be obtained other than face-to-face. The court found that the victim in this case was medically unavailable due to his fragile health, crediting two letters and an affidavit from the victim’s doctor that stated that being in the same room with Hebert would cause the victim’s blood pressure to rise to a potentially fatal level. The court of appeals agreed with the district court that the victim’s fragile health necessitated a video conference deposition from the victim’s home. The court found the video reliable, because he gave testimony under oath, was contemporaneously cross-examined by Hebert’s counsel, and the jury was able to assess his demeanor in the video. The court also found no Crawford violation from the video testimony, because the victim was deceased at the time of trial and Hebert was fully able to cross-examine him during the deposition.

The court of appeals affirmed the conviction and sentence.

Colorado Court of Appeals: District Court Had Discretion Whether to Award Presentence Confinement Credit

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, August 25, 2016.

Presentence Confinement Credit—Youthful Offender System.

Defendant was charged as an adult with multiple felonies in two cases for offenses he committed while a juvenile. The cases were resolved through a disposition in which defendant pleaded guilty to one felony in each case. The parties stipulated to concurrent sentences in the custody of the Department of Corrections (DOC) with a controlling sentence of 18 years. The parties also agreed that each DOC sentence would be suspended if defendant successfully completed six years in the Youthful Offender System (YOS). The district court refused to award presentence confinement credit (PSCC) at sentencing.

Defendant appealed the court’s refusal to award PSCC. C.R.S. § 18-1.3-407(2)(a)(I) provides that the court “may award an offender sentenced to the [YOS] credit for presentence confinement; except that such credit shall not reduce the offender’s actual time served in the [YOS] to fewer than two years.” Defendant argued that this section was not discretionary, and that “may” meant “shall.” The Court of Appeals disagreed. The language of the statute is not ambiguous. The use of the word “may” is indicative of a grant of discretion by the legislature, particularly where it is used in the same sentence with the word “shall.” The Court noted that if defendant does not successfully complete his six-year YOS sentence and is resentenced to DOC, he will be entitled to an award of PSCC under C.R.S. § 18-1.3-405.

Alternatively, defendant argued that even if “may” is permissive, the district court abused its discretion in refusing to award PSCC. The Court held it was not an abuse of discretion for the district court not to award PSCC for the 358 days defendant spent in jail before he was sentenced in one case and the 418 days in the other. The Court found ample documentation in the record to support the district court’s decision.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Officer Justified in Conducting Pat-Down Search Before Allowing Person to Enter his Vehicle

The Colorado Court of Appeals issued its opinion in People v. Gow on Thursday, August 25, 2016.

Tommy Gow was walking in a residential neighborhood at about 2:15 a.m. when a police officer approached him. Gow told the officer he had just purchased an iPad from a friend, and, when the officer verified that Gow had no outstanding warrants, he told Gow he was free to leave. Gow started to leave, but then flagged down the officer and asked for a ride to another house a few blocks away. The officer told Gow he would have to pat him down to check for weapons before Gow could enter his car, and also wanted to look in the iPad box. When Gow opened the box, two small baggies fell to the ground, which Gow told the officer contained “speed.” Gow was arrested and ultimately convicted of possession of methamphetamine and possession of a schedule I controlled substance. He appealed, arguing the officer’s pat-down search violated his Fourth Amendment rights and therefore the evidence should have been suppressed.

On appeal, the Colorado Court of Appeals evaluated Gow’s claim that the pat-down search, including the search of the box, was unconstitutional because under People v. Berdahl, 2012 COA 179, “an officer may not, in the course of providing a courtesy ride, search the individual to be transported without a reasonable, articulable suspicion that the individual is armed and dangerous.” Because the officer in this case did not have a reasonable suspicion that Gow was armed and dangerous, the pat-down search was unconstitutional and the resulting evidence should have been suppressed. The trial court did not cite Berdahl, but its holding that the pat-down was reasonable was directly at odds with Berdahl‘s holding that Colorado does not recognize an “officer safety” exception to the rule that an officer must have a reasonable, articulable suspicion before searching a person.

The court of appeals disagreed with Berdahl, finding that the out of state cases relied on by the division in Berdahl did not stand for the position that an officer may never conduct a pat-down search without reasonable suspicion. The court concluded that the reason for the search was determinative, and in cases where the officer was conducting a pat-down search for his or her own safety prior to transporting individuals in his or her car, it was reasonable for the officer to conduct a pat-down for weapons. The court found it would be illogical to require an officer to compromise his or her safety by allowing individuals in his or her car without patting them down for weapons, and the unintended result would be that officers would be reluctant to offer courtesy rides. The court noted that the Berdahl division was rightly concerned about eroding Fourth Amendment protections, but noted that by only permitting pat-down searches prior to allowing individuals to receive rides, the Fourth Amendment would not be violated.

The court of appeals affirmed the trial court’s denial of Gow’s suppression motion.

Public Comment Period Open for Changes to 10th Circuit Local Rules

On Friday, August 26, 2016, the Tenth Circuit Court of Appeals released proposed changes to the Tenth Circuit Rules, effective January 1, 2017. These rule changes are in addition to the changes to the Federal Rules of Appellate Procedure that take effect December 1, 2016. The changes include a reduction in word count for briefs; primary brief word limits have been reduced from 14,000 to 13,000 and reply brief word limits have been reduced from 7,000 to 6,500. The word limit changes are summarized in a new Appendix to the Federal Rules of Appellate Procedure. The changes to the rules also address when filings are timely under F.R.A.P. 4, clarify service dates when filings are completed electronically, and require attorneys to explain the criminal process and right to object in a defendant’s native language.

Comments regarding any of the changes may be submitted via email to For a memo outlining the various amendments, click here. For a redline of the changes, click here.

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.