August 21, 2017

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: Defendant’s Appeal of Motion to Reconsider Untimely Where Not Appeal of Qualified Immunity Denial

The Tenth Circuit Court of Appeals issued its opinion in Powell v. Miller on March 7, 2017.

Powell was released from death row and sued the prosecutor responsible for his overturned conviction, Miller. Powell charged that Miller had suborned perjury from a key witness at his trial, Derrick Smith, and had hidden from the defense evidence of Miller’s agreement to help Smith with his own criminal charges. Miller filed a motion to dismiss. The district court granted the motion in part, but denied qualified immunity on certain claims. Miller did not appeal the ruling.

Three years later, Miller filed a motion to reconsider the denial of qualified immunity. The district court denied that motion because Miller did not present a substantive basis for the court to change its opinion. Miller appealed the denial of his motion to reconsider.

The Tenth Circuit held that a district court’s pretrial denial of a qualified immunity defense, to the extent it turns on an issue of law, is an appealable final decision. But here, the Tenth Circuit held that Miller did not appeal from the district court’s order denying his qualified immunity defense. Instead, Miller appealed from the district court’s order denying reconsideration of that ruling almost three years later. Therefore, the Tenth Circuit held that it lacked jurisdiction to consider the district court’s order denying Miller’s motion to reconsider. It held that Miller could not use his motion for reconsideration to resurrect his right to appeal the district court’s order denying him qualified immunity.

Therefore, the Tenth Circuit dismissed Miller’s appeal due to lack of jurisdiction.

Tenth Circuit: Unofficial Head of Small Town Police Department Did Not Have Final Policymaking Authority for Department

The Tenth Circuit Court of Appeals issued its opinion in Patel v. Hall on March 1, 2017.

On April 20, 1011, Officers Bubla and Hall arrived at Mr. Austin’s auto-repair business pursuant to a call from Ms. Austin regarding suspicious activity by their landlord, Plaintiff Chetan Patel. The officers were informed that several cars that Plaintiff brought in were missing their Vehicle Identification Number (VIN). Additionally, Mr. Austin told the officers that he suspected the VINs had been switched on certain vehicles.

The officers contacted the County Attorney’s Office after speaking with the Austins and were informed that the officers could permit the Austins to remove their belongings from the premises and seal the building pending a search warrant. The officers also photographed the trucks with missing or replaced VIN plates which Mr. Austin had pointed out to them. The officers sealed the building. The next morning, Mr. and Ms. Austin and their son submitted written statements to the police and swore to their truthfulness in front of a notary. The statements included instances where the Plaintiff told Mr. Austin he needed to remove Plaintiff’s vehicles off the premises “because they were starting to draw the state’s attention.”

Officer Hall was unable to immediately obtain a search warrant, as none of the judges in Big Horn County were available. Officer Hall contacted the County Attorney’s Office to inquire whether there was probable cause to arrest Plaintiff because Officer Hall believed Plaintiff might remove evidence from the premises. The County Attorney determined that there was probable cause to justify a warrantless arrest for felony VIN fraud. Plaintiff was arrested and the county court issued an arrest warrant the next day, along with a search warrant for the premises.

Pursuant to the search warrant, the officers discovered a syringe and white powder on a table in the premises. The officers left the building and obtained a new warrant to search for drugs as well as VIN plates inside the building. In total, the officers seized two loose VIN plates, a truck with switched VIN plates, a truck with a missing VIN plate, and an empty insurance envelope which was found laying on the floor with a claim number written on it. The officers also photographed several documents with VIN numbers written on them.

The charges against Plaintiff for felony VIN fraud were dismissed on October 4, 2011. In April 2014, Plaintiff filed the §1983 complaint. Defendants argued they were entitled to qualified immunity. Plaintiff supplied an affidavit purportedly signed by Mr. Austin. Plaintiff’s two attorneys also submitted affidavits stating they met with Plaintiff and Mr. Austin when Mr. Austin allegedly made statements that differed from his original sworn police witness statement.

The district court granted summary judgment for Defendants and refused to consider the purported Mr. Austin affidavit. The district court also disregarded Plaintiff’s attorneys’ affidavits holding that the affidavits would make the attorneys material witnesses to the case in violation of Rule 3.7 of the Wyoming Rules of Professional Conduct. The district court held that Plaintiff had not shown a constitutional violation relating to the search and seizure because (i) Mr. Austin consented to the initial search, (ii) the officers had probable cause to seize the shop while they obtained a search warrant, (iii) the subsequent search was conducted pursuant to a search warrant, and (iv) there was sufficient probable cause for Plaintiff’s arrest. The district court also rejected Plaintiff’s claim that the search was beyond the scope of the search warrant because Plaintiff had not shown the officer’s actions violated clearly established law. Finally, the district court dismissed Plaintiff’s state law claims with prejudice based on a procedural deficiency by Plaintiff and the state defense of qualified immunity.

The Tenth Circuit first addressed the district court’s grant of summary judgment in favor of Officer Hall on Plaintiff’s official-capacity claim. The claim requires evidence that the municipality “caused the harm through the execution of its own policy or customs or by those whose acts may fairly be said to represent official policy.” The police department at the time had no chief of police, and Officer Hall was the senior officer. The Tenth Circuit laid out the test to decide whether a government employee is a final policymaker whose actions can give rise to municipal liability. First, the employee must be constrained by policies not of his own making. Second, his decisions must be final. Finally, the policy decisions and actions must fall within the realm of the employee’s grant of authority.

The Tenth Circuit held that there was no evidence to indicate whether or not Officer Hall was meaningfully constrained by policies not of his own making, whether or not his decisions were final, or whether his actions fell within the realm of his grant of authority. Therefore, the Tenth Circuit held that Plaintiff failed to satisfy the municipal liability test. Simply because Hall was “in charge” before the new chief took office was not enough. The Tenth Circuit affirmed the district court’s grant of summary judgment on Plaintiff’s official-capacity claims.

The Tenth Circuit next addressed the claims against Defendants in their individual capacities. The Tenth Circuit held that because Defendants asserted qualified immunity, the burden shifted to Plaintiff to establish that the Defendants violated a constitutional right and that the right was clearly established at the time of the violation.

Plaintiff’s first claim was against Officers Hall and Bubla for violation of his Fourth Amendment right when they initially searched the shop without a warrant. The Tenth Circuit held that the search was conducted pursuant to consent. The Austins had actual or apparent authority to consent as both worked at the auto-repair business. Ms. Austin contacted police and both she and Mr. Austin were present when the officers were shown around the shop. Mr. Austin did not protest, and the Tenth Circuit held that this was non-verbal consent.

Next, Plaintiff argued that Officers Hall and Bubla violated his Fourth Amendment rights when they sealed the premises without a warrant or probable cause. The Tenth Circuit held that there was probable cause and therefore Plaintiff’s rights were not violated. Probable cause existed because of what the officers found during their initial search with the Austins, Plaintiff’s suspected criminal conduct, and what Mr. Austin had told the officers about his conversations with Plaintiff. Therefore, the Tenth Circuit held that the officers were justified in sealing the building.

Third, Plaintiff argued that Hall violated his Fourth Amendment rights by arresting him without a warrant. The Tenth Circuit held that the arrest was valid because Hall had probable cause to believe Plaintiff was fraudulently altering VIN Plates. The Tenth Circuit held that the factors justifying the warrantless seizure of the building also supported Plaintiff’s arrest.

Fourth, Plaintiff argues that the warrants to search his shop and for his arrest were defective because they were “procured with reckless insufficient information.” The Tenth Circuit stated that there only needs to be a “substantial probability” that the suspect committed the crime before making an arrest. The Tenth Circuit held that Plaintiff’s evidence did not dispute that there was a substantial probability. Further because the prior search was lawful due to consent, the Tenth Circuit held that there was probable cause for a warrant to search the shop based on the initial findings.

Fifth, Plaintiff argued that the officers exceeded the scope of the search warrant. The Tenth Circuit held that the first two ways alleged by Plaintiff were not supported by evidence. The third allegation was that the officers exceeded the scope by seizing an envelope found on the ground of the shop. The Tenth Circuit held that Plaintiff met his burden of showing that the officers were not entitled to qualified immunity on that issue. The warrant clearly specified what items were to be seized, and by seizing additional items, the officers acted unreasonably for Fourth Amendment purposes.

The Tenth Circuit next addressed the district court’s decision to disregard the affidavit purportedly signed by Mr. Austin and its holding that the attorneys’ affidavits were inadmissible based on Wyoming’s professional conduct lawyer-as-witness rule. The Tenth Circuit held that is did not need to consider whether the district courts holding was accurate because even if the information from Mr. Austin’s purported affidavit was considered, it would not have created a material dispute of fact to defeat the Defendant’s assertion of qualified immunity. Therefore, the Tenth Circuit held that any error by the district court regarding Mr. Austin’s affidavit was harmless.

Finally, the Tenth Circuit held that the district court erred in dismissing Plaintiff’s state law claims with prejudice. Because the district court did not explain why the defendants were entitled to the state qualified immunity, the Tenth Circuit remanded the issue for further consideration by the district court.

In sum, the Tenth Circuit reversed the grant of summary judgment as to the seizure of the envelope, remanded for further proceedings on the state qualified immunity issue, and affirmed the district courts grant of summary judgment in favor of all Defendants on the remaining claims.

Colorado Court of Appeals: Defendant Not Entitled to Bond in Probation Revocation Case

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, July 13, 2017.

Setting Bond—Persons Charged with Felonies Awaiting Trial—Persons Who Plead Guilty to Felonies and Are Awaiting Trial.

While Johnson was serving probation in a criminal impersonation case and deferred judgment in a menacing case, he was charged with, among other things, felony murder and robbery. Johnson was arrested, jailed, and held without bond in the latter case pending his combined preliminary hearing and bond hearing. After Johnson’s arrest in the murder case, the prosecution filed motions to revoke his deferred judgment in the menacing case and his probation in the criminal impersonation case based on the offenses charged in the murder case. The revocation court issued an arrest warrant in the menacing and criminal impersonation cases because of allegations that he had not complied with the terms of his probation. The trial court set bond in the murder case. Later the revocation court held a hearing to determine whether it would grant Johnson’s request for bond in the menacing and criminal impersonation cases. The revocation court denied these requests, drawing a distinction between these cases and the pending murder case based on the fact that the murder case was preconviction and the other cases were postconviction.

On appeal, Johnson asserted that the revocation court was “constitutionally required” to set bond in the menacing case and the criminal impersonation case and abused its discretion when it refused to set bond, with the result that Johnson is being unconstitutionally held without bond. He asserted that the motions to revoke in the menacing case and the criminal impersonation case are “new charges” for which he has a right to bond because he has not yet been “convicted” of them. The court of appeals considered whether the same set of rules governs a court’s decision to set bond in two categories of cases: cases in which bond is set for persons who have been charged with felonies and are awaiting trial, and cases in which defendants have pleaded guilty to felonies, courts have sentenced them to probation or placed them on deferred judgments, and the prosecution then files motions to revoke the probation or deferred judgments. The court decided that the same set of rules does not apply because (1) defendants in the first category are presumed to be innocent, but defendants in the second category have admitted their guilt and are not therefore entitled to many of the fundamental rights that those in the first category enjoy. In addition, probation revocation and revocation of deferred judgment proceedings are focused on whether the sentences that courts originally imposed are still appropriate; and (2) Colorado’s constitution and the pertinent bond statutes recognize the separation between the two categories. In the first, the law requires courts to set bond for defendants who await trial, subject only to a few clearly delineated exceptions. In the second, the law gives discretion to set bond.

Here, the court concluded that Johnson’s criminal impersonation and menacing cases fell into the second category; the revocation court therefore had discretion to deny his request for bond in those cases; and the court did not abuse its discretion when it denied his request for bond because the record supported its decision.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Previously Unresolved Issues Decided Against Defendant’s Position

The Colorado Court of Appeals issued its opinion in People v. Jacobson on Thursday, July 13, 2017.

Statutory DUI Affirmative Defense Instruction Not Given Sua Sponte—C.R.S. § 42-4-1301(2)(a)—Jury Instruction—Jury Questions—Invited Error.

In 2014 COA 149, the Colorado Court of Appeals reversed defendant’s conviction for failure to poll the jury about exposure to extraneous, prejudicial information. The Colorado Supreme Court reversed and remanded to the court of appeals. Before the supreme court’s mandate was issued, defendant requested that the court of appeals decide two unresolved issues, either of which could lead to reversal of the judgment of conviction entered on jury verdicts finding her guilty of vehicular homicide, driving under the influence (DUI), and other related charges arising from a collision between her truck and a taxi. The court of appeals granted the request.

Defendant first argued that the trial court erred in failing to sua sponte instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when her blood alcohol testing (BAC) occurred. Defendant testified at trial that she was sober when the accident occurred at about 10:30 a.m., but 15 minutes later, she drank a Vitamin Water bottle that contained one-half 99 proof schnapps. Defendant was contacted by two police officers at 10:58 a.m. She later failed a roadside sobriety test and was taken to a hospital for blood draws. The prosecution presented expert evidence that defendant’s BAC would have been .274 at the time of the accident. Defense counsel did not request the trial court to instruct the jury on the DUI affirmative defense of having consumed alcohol between the time she stopped driving and when the testing occurred.

It was undisputed that there was sufficient evidence to warrant an instruction on the affirmative defense. The prosecution argued that by proving that defendant was intoxicated at the time of the accident, it necessarily disproved the affirmative defense that defendant did not become intoxicated until a later time. As the supreme court stated in Montoya v. People, 2017 CO 40, a defense that operates solely by negating elements of the crime is disproved by the proving of those elements. Accordingly, the court found no error in the trial court’s failure to instruct the jury sua sponte on the affirmative defense.

Defendant then argued, for the first time, that a jury instruction and the court’s response to a related jury question reduced the prosecution’s burden. The instruction in question explained that “the amount of alcohol in the Defendant’s blood at the time of the commission of the offense, or within a reasonable time thereafter, as shown by chemical analysis of the Defendant’s blood or breath, gives rise to the following [listing of statutory presumptions].” During deliberations, the jury asked whether this was at or around 10:30 a.m. (the time of the accident) or at any time thereafter (on or around the time she was stopped by the police at 10:58 a.m.). Following discussion with counsel, the court answered that it could be either or both, but that any decision must be unanimous.

Defense counsel did not object to the instruction and participated in the formulation of the answer to the jury question. The Attorney General thus argued that defendant invited any error. The court declined to address the invited error argument because defendant did not argue there was an incorrect statement of the law. Defendant’s argument that the instruction encouraged conviction based on her intoxication “a reasonable time after” the accident is directly contradicted by another instruction that required the prosecution to prove that defendant had been intoxicated when the accident occurred. In addition, defendant did not show how the jury could have found her heavily intoxicated at 10:58 a.m. but not 28 minutes earlier. Defendant also did not produce evidence to contradict the prosecution’s expert that chugging alcohol at 10:45 a.m. would not explain the results of the three later blood draws, given how the body metabolizes alcohol. Finally, prior cases hold that 30 minutes after an accident is not “more than a reasonable time” afterward. Consequently, the court declined to reconsider whether the prosecution disproved the affirmative defense.

The court interpreted defendant’s last argument as raising a temporal discrepancy between the charging document and the references to “a reasonable time after” in the jury instruction and court’s response to the question. Based on the extensive colloquy on both the instruction and the court’s answer to the jury question, in which defense counsel actively participated, the court concluded any error was invited.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Drug Dog Sniff for Marijuana Requires Reasonable Suspicion of Criminal Activity

The Colorado Court of Appeals issued its opinion in People v. McKnight on Thursday, July 13, 2017.

Marijuana—Dog Sniff Search—Probable Cause—Reasonable Suspicion—Suppression of Evidence—Amendment 64.

At defendant’s suppression hearing, Officer Gonzales testified that he saw a truck parked in an alley that then left the alley and eventually parked outside a house for about 15 minutes. The house had been the subject of a search roughly seven weeks earlier that turned up illegal drugs. When the truck drove off, Officer Gonzales followed it, saw it turn without signaling, and pulled it over. Defendant was driving the truck. The officer recognized defendant’s passenger from previous contacts with her, “including drug contacts” involving the use of methamphetamine. At Officer Gonzales’s request, Sergeant Folks came to the scene with his certified drug-detection dog, Kilo. Kilo alerted, the truck was searched, and the officers found a “glass pipe commonly used to smoke methamphetamine” that contained white residue. Defendant was charged with possession of a controlled substance and possession of drug paraphernalia. Defendant moved to suppress the evidence found in his truck, arguing that the police violated his constitutional rights by conducting a dog sniff search without reasonable suspicion and by otherwise searching his truck without probable cause. The court denied the suppression motion, the case proceeded to trial, and defendant was convicted of both counts.

On appeal, defendant contended that under the Colorado Constitution, the deployment of the drug dog was a search requiring reasonable suspicion of criminal activity. The court of appeals first noted that Amendment 64 legalized possession for personal use of marijuana of one ounce or less by persons 21 or older. Therefore, under Colorado law, a drug dog’s alert can reveal, in addition to contraband, the presence of something in which a person has a legitimate expectation of privacy (i.e., the possession of one ounce or less of marijuana). Consequently, a dog sniff should be considered a “search” for purposed of article II, section 7 of the state constitution where the occupants of the vehicle are 21 years or older.

Defendant also argued that the dog’s alert, in combination with other relevant circumstances, did not give police reasonable suspicion to search his truck and thus the district court erred in denying his motion to suppress. A warrantless search effected by a dog sniff of the exterior of a vehicle must be supported by reasonable suspicion. Under the circumstances of this case, the police lacked the requisite reasonable suspicion, the dog sniff was invalid, and the methamphetamine recovered as a result should have been suppressed.

The judgment was reversed and the case was remanded.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Mens Rea Element of Child Sex-Trafficking Statute Satisfied Where Defendant Recklessly Disregarded Victim’s Underage Status

The Tenth Circuit Court of Appeals issued its opinion in United States v. Doung on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine whether a statutory amendment to 18 U.S.C. § 1591, relating to child sex-trafficking, altered the government’s burden in proving the requisite mens rea. The defendants, Tung Doung, William Baker, and Curtis Anthony were each charged with one count of child sex trafficking and one count of conspiracy to engage in child sex-trafficking in violation of 18 U.S.C §§ 1591 and 1594. The defendants moved to dismiss the indictment, on the basis that it did not allege the mens rea element of the child sex trafficking crime, and the district court granted the motion.

Under § 1591, the government can prove the mens rea element of child sex-trafficking pertaining to the age of a child in three ways: (1) by showing that the defendant knew the child was underage; (2) the defendant acted in reckless disregard of their age, or (3) the defendant had a reasonable opportunity to observe the victim prior to engaging in a commercial sex transaction. In the superseding indictment, the government charged the defendants only with having a reasonable opportunity to observe the victim to prove the requisite mens rea.

To interpret the statute, the court began by looking at the plain language of § 1591, stating, “the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. After looking at the plain language of the statute, the court determined that § 1591 (c) (pertaining to the language adding reasonable observation as a mens rea standard), was not ambiguous, and provides the government a third option for proving a defendant’s mens rea.

Because the section was enacted by congress as a part of the Trafficking Victims Protection Act of 2000 (TVPA), the court next addressed the congressional intent behind the addition of § 1591. The court noted that Congress’ stated purpose behind the act was to, “combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude,” and that § 1591 was added to provide federal criminal penalties for engaging in such conduct. The court then stated that because Congress added subsection 1591(b) to lessen the government’s burden as to the mens rea required regarding a child’s age, the addition of a third subsection further lessening that burden is wholly consistent with the intent of the TVPA.

The defendants argued that if the court interprets § 1591(c) as giving the government a third avenue to prove mens rea, then the section would effectively relieve the government from having to prove actual knowledge or reckless disregard of a victim’s age. The court rejected the defendant’s argument, and stated that contrary to the defendant’s assertions, the government will still have to prove actual knowledge or reckless disregard in circumstances where the defendants did not have a reasonable opportunity to observe the child victim before engaging in the commercial sex transaction. Additionally, the court stated that the defendant’s preferred interpretation actually goes against the stated objective of the TVPA of lessening the government’s burden by restricting the government’s ability to show mens rea under the reckless disregard standard.

As to the conspiracy charge, the defendants argue that the courts interpretation of § 1591(c) does not resolve if the district court properly dismissed the conspiracy charge. Relying on the seventh circuit holding in United States v. Saldago, the defendants claim that they could not have conspired to commit the crime of child sex-trafficking without knowing that the child in question was actually a minor. The court rejected this claim as well, holding that because the government is alleging the defendants had reasonable opportunity to observe the victim, the indictment specifically charges that the defendants had knowledge of the victim’s age for the purpose of the conspiracy charge as well.

The court reversed the decision of the district court in dismissing both charges against the defendants, and remanded the matter for further proceedings.

Tenth Circuit: 18 U.S.C. § 3583 Allows Sentences Greater than One Year for Violations of Terms of Supervised Release

The Tenth Circuit Court of Appeals issued its opinion in United States v. Collins on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine if the maximum allowable term of incarceration following a second violation of the terms of supervised release under 18 U.S.C. § 3583(e)(3) refers to the original crime or the violation of the terms of the supervised release. Howard Collins was originally convicted of a Class B felony for knowingly and intentionally distributing more than five grams of (in this case) crack cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). After his initial period of incarceration, he was granted supervised release. After violating his supervised release once before, upon his second violation of the terms of his release, the court sentenced him to one-year re-incarceration under the belief that § 3583(e)(3) permitted a one-year maximum term.

Section 3583(e)(3) stipulates the maximum allowable period of re-incarceration where supervised release has been revoked is the length of the supervised release authorized by statute for the offense that resulted in the supervised release. On appeal, the government asserted that the district court improperly read the statute to preclude a re-incarceration period over one year. The government argued that the language of the statute relating to the “offense that resulted in such term of supervised release” referred to the original offense for which Collins was convicted (which would allow for a three year maximum), not the violation of his supervised release. In interpreting the statute, the court noted that revocation of supervised release, while often leading to incarceration, is not in and of itself a crime and is only subject to a preponderance of the evidence standard. As incarceration for a criminal offense under a standard less than beyond a reasonable doubt would be a violation of the Due Process Clause, the court reasoned that the “offense” referenced in the statute was the original offense for which Collins was charged.

Looking to the holding in the Supreme Court case of Kellogg Brown & Root Servs. Inc. v. United States ex rel. Carter, the court stated that the interpretation of the term “offense” to be the original offense for which someone was convicted is applicable to the entirety of Title 18, (at issue here). At the outset, Collins argues that the court’s interpretation of the term original must, in his case, relate to his violation of the terms of supervised release because the phrase “resulted in” requires actual causation, and “but for” his first violation of supervised release he would no longer be on a term of supervised release to violate. The court rejects this contention, stating that Collins’ reading of the statute and the holding in Burrage v. United States to require actual and proximate cause, if adopted, would require the court to to over look the aforementioned due process issues. Furthermore, the court states that ‘but-for’ his original conviction, he could not have been sentenced to a term of supervised release upon either revocation.

In further opposition to the court’s interpretation, Collins supports his own interpretation by asserting that the statutory history of § 3583(e)(3) and (h), including its cross-reference to § 3553(a)(1) leads to an interpretation that the term ‘offense’ means violation of his supervised release. The court, again citing Kellogg to reject Collins’ interpretation, said that because the term ‘offense’ under Title 18 has been interpreted to mean the original offense for which he was convicted, the cross-reference to § 3553 (a)(1) would also carry that interpretation. In Collins’ final challenge to the court’s interpretation, he asserted that because prior to a 1994 amendment the statute referred to “the offense for which the person was convicted” (emphasis added), as opposed to the current iteration that replaced ‘convicted’ with ‘offense’, Congress specifically intended to include violations of the terms of statutory release. The court also rejected these arguments under Kellogg, stating that because Title 18 refers to crimes as the original ‘offense’, the term must be given the same meaning throughout the statutory scheme. Furthermore, the court added, the amendment worked to actually expand the sentencing court’s authority, and an interpretation that limited the court’s ability to sentence a term of imprisonment for revocation of supervised release would be inconsistent with that intention.

The Tenth Circuit Court of Appeals reversed the sentencing order of one-year, and remanded the case with the instruction that the court vacate its revocation judgment and resentence Collins.

Tenth Circuit: Sentencing Enhancement Properly Applied When Defendant Conceded to Crime of Violence

The Tenth Circuit Court of Appeals published its opinion in United States vSnyder on Tuesday, March 28, 2017.

Mr. Snyder pleaded guilty to possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) while on probation. The probation officer recommended a base offense level of 20 pursuant to United States Sentencing Guidelines (USSG) § 4B1.2(a)(2), because Mr. Snyder had a prior conviction of a crime of violence. Mr. Snyder sought a reduction to the base offense level pursuant to USSG § 2K2.1(b)(2). The district court held that Mr. Snyder’s prior conviction of voluntary manslaughter was a crime of violence and he was not entitled to a reduced sentence. Mr. Snyder appealed.

The Tenth Circuit ordered supplemental brief to determine whether the residual clause of USSG § 4B1.2(a)(2) provided a basis for Mr. Snyder’s sentencing enhancement if his prior conviction of voluntary manslaughter was a crime of violence. Mr. Snyder’s supplement brief conceded that his prior conviction was a crime of violence. Further, the Supreme Court reasoned in Beckles “the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court’s discretion in choosing an appropriate sentence with the statutory range.”

The court concluded that the district court properly applied the sentencing enhancement and affirmed Mr. Snyder’s sentence.

Colorado Court of Appeals: Remand Granted for Extended Proportionality Review

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

First Degree AssaultAbbreviated Proportionality ReviewHabitual CriminalPrior ConvictionsExtended Proportionality Review.

A jury convicted Oldright of first degree assault based on evidence that he hit the victim in the head with a metal rod. Following trial, the court conducted an abbreviated proportionality review, adjudicated Oldright a habitual criminal, and sentenced him to 64 years in prison. Oldright’s prior offenses included aggravated driving after revocation prohibited, forgery, fraud by check, theft by receiving, and theft.

On appeal, Oldright contended that the court erred in finding that the triggering offense was grave or serious. Oldright’s triggering offense, first degree assault, is a grave and serious offense because the legislature deems it a crime of violence and an extraordinary risk crime, Oldright used a deadly weapon to commit the crime, and the victim suffered serious bodily injury.

Oldright also argued that the court erred in concluding that all of his prior convictions were serious simply because they were felonies. Although first degree assault is a grave and serious offense, not all of Oldright’s prior offenses were serious because the General Assembly had reclassified three his prior felony convictions as misdemeanors (making them an ineligible basis for habitual sentencing), and one of the prior felonies from a class 4 felony to a class 5 felony. Because the court failed to consider these legislative changes in determining whether Oldright’s sentence was disproportionate, the sentence was vacated and the case was remanded for an extended proportionality review of Oldright’s habitual criminal sentence.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Evidence Sufficient to Prove Defendant Knowingly Failed to Register as Sex Offender

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

Sex Offender—Registration—Evidence—Affirmative Defense—Uncontrollable Circumstances.

Wilson was required to register as a sex offender and failed to do so. He was then convicted of failure to register as a sex offender.

On appeal, Wilson contended that the evidence was insufficient to show that he knowingly failed to register as a sex offender. Wilson argued that because he was evicted from the motel he was staying at on the last day of the five-day period, he had an additional five days to register. A defendant is guilty of failing to register as a sex offender when, as relevant here, he does not register with his local law enforcement agency within five business days after being released from incarceration. The evidence is sufficient to support the fact that Wilson knowingly failed to register as a sex offender within five days of being released. Further, the statute required Wilson to register within five days of his release without regard to where he was living or whether his location changed during that five-day period.

Wilson next contended that the trial court erred in “disallowing the affirmative defense of uncontrollable circumstances.” However, lack of a fixed residence is not an uncontrollable circumstance, and Wilson did not present any credible evidence that uncontrollable circumstances existed that prevented him from registering as a sex offender. Thus, the trial court did not err in rejecting his affirmative defense.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.