May 24, 2013

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Colorado Supreme Court: Where Home is Occupied by Two People, Only One Needs to Consent to Search

May 21, 2013 by Leave a Comment

The Colorado Supreme Court issued its opinion in People v. Fuerst on Monday, May 20, 2013.

Suppression of Evidence—Consent to Search.

The Supreme Court held that respondent Kim Maurice Fuerst’s decision to silently remain behind a locked door inside his home did not constitute an express refusal of consent to a police search. Therefore, Fuerst’s wife’s free and voluntary consent to the search of the couple’s home was valid as to Fuerst. The trial court’s order granting Fuerst’s motion to suppress evidence obtained during the search was reversed.

Summary and full case available here.

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Colorado Court of Appeals: No Hearsay Exception Applied to Allow Introduction of Defendant’s Self-Serving Out-of-Court Statements

May 14, 2013 by Leave a Comment

The Colorado Court of Appeals issued People v. Zubiate on Thursday, May 9, 2013.

Driving After Revocation Prohibited—Driving While Ability Impaired—Driving Under Restraint—Hearsay—Merger—Lesser Included Offense.

Defendant appealed her convictions entered following a jury trial for aggravated driving after revocation prohibited (aggravated DARP) and driving while ability impaired (DWAI). She also appealed her driving under restraint (DUR) conviction entered following her guilty plea to that offense, and the sentence imposed. The convictions were affirmed.

Defendant contended that the trial court erred in excluding an out-of-court statement concerning her fear of needles and, consequently, deprived her of her constitutional right to present evidence in her own defense. Specifically, defendant argued that the court erred in excluding her statement to Officer Rayside concerning her fear of needles because it was (1) offered for a non-hearsay purpose, (2) a statement against interest, and (3) a statement concerning her state of mind. Here, the statement was relevant only if it was offered for the truth of the matter asserted—namely, that defendant feared needles. Accordingly, it was hearsay. Because defendant’s statement was self-serving and the prosecution did not introduce evidence that defendant refused the test, none of the hearsay exceptions applied.

Defendant also contended that her DARP and DUR convictions should merge because DUR is a lesser included offense of DARP. The offenses do not merge, however, because proving the DARP elements does not necessarily establish DUR. DUR applies to offenses committed only on public ways. DARP, in contrast, does not require that the driver operate the vehicle on a highway. Accordingly, DARP is not limited to the highway and applies to private ways, as well. Because DUR requires proof of an additional fact that DARP does not—namely that a motor vehicle was driven on a highway—DUR is not a lesser included offense of DARP. Furthermore, because one could operate a vehicle without necessarily driving it, the offenses do not merge under the strict elements test. Therefore, DUR is not a lesser included offense of DARP. Accordingly, defendant’s convictions and sentences for both offenses do not merge.

Summary and full case available here.

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Colorado Court of Appeals: Evidence of SANE Examination and Examiner’s Report Admissible in Sexual Assault Case

May 1, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Tyme on Thursday, April 25, 2013.

Sexual Assault—Hearsay—Sexual Assault Nurse Examiner—Medical Diagnosis or Treatment.

Defendant Justyn E. Tyme appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of sexual assault, third-degree assault, and false imprisonment. The judgment was affirmed.

This case stems from Tyme’s sexual assault of the victim, G.A. Five days after the assault and at the request of law enforcement, G.A. submitted to a Sexual Assault Nurse Examiner (SANE) examination that was performed by Sue Goebel. At trial, Goebel testified, as an expert witness, about information she had learned from G.A. during the exam. Both Goebel’s testimony and her report were allowed as evidence at trial.

On appeal, Tyme contended that the trial court abused its discretion in concluding that both the SANE testimony and her report were admissible under the medical diagnosis or treatment hearsay exception because the purpose of the SANE examination was to collect evidence, not to treat or diagnose the victim. Generally, statements made for purposes of medical diagnosis or treatment, including a SANE exam, are admissible if (1) the statement is reasonably pertinent to treatment or diagnosis; and (2) the content of the statement is such that it is reasonably relied on by a physician in treatment or diagnosis. Here, Goebel testified that she relied on the medical history to guide her examination and used it “to diagnose and treat,” thereby satisfying the first prong of the reliability test. She also testified that SANEs normally rely on similar histories to “guide the[ir] diagnosis and treatment,” thereby demonstrating the reasonableness of her reliance on G.A.’s statements in satisfaction of the second prong of the reliability test. Accordingly, the trial court did not abuse its discretion in admitting Goebel’s testimony or her report.

Summary and full case available here.

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Colorado Court of Appeals: Defendant’s Conviction Affirmed But Case Remanded for Longer Sentence

April 30, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Lahr on Thursday, April 25, 2013.

Aggravated Robbery—Other Act Evidence—Relevance—Illegal Sentence—Extraordinary Risk Crime.

Defendant Jacob John Lahr appealed the judgment of conviction entered on jury verdicts finding him guilty of aggravated robbery, menacing, aggravated motor vehicle theft, possession of a controlled substance, and possession of a weapon by a previous offender (POWPO). The People appealed the district court’s sentence. The judgment was affirmed, the aggravated robbery sentence was vacated, and the case was remanded for entry of a corrected sentence.

According to the prosecution’s evidence, defendant stole a car, robbed a Motel 6, robbed a Fascinations store, and later stole an SUV. Defendant contended that the district court erred by incorrectly applying the second part of the Spototest for admission of other act evidence. [See People v. Spoto, 795 P.2d 1314, 1319 (Colo. 1990).] Defendant’s theory of the case was that another person committed both the Motel 6 robbery and the SUV theft. However, there were sufficient similarities between the two robberies. Therefore, the district court did not abuse its discretion when it ruled that evidence of the Fascinations robbery was logically relevant, because it tended to make more probable the material fact that defendant was the person who robbed the Motel 6 and/or stole the SUV.

Defendant also contended that the district court erred by denying his motion for a new trial. A verdict form regarding the POWPO charge against defendant, which was part of a bifurcated case, was inadvertently given to the jury. The court told the jurors that the POWPO verdict form had been included in error and asked them to hand their copies to the bailiff. Assuming the court gave an instruction to disregard the form, the reference was clearly not so prejudicial that any resulting prejudice could not have been remedied by the instruction. Further, even if the court did not so instruct, the reference was not so prejudicial that the drastic remedy of declaring a mistrial was required. Therefore, any error was harmless, and the district court did not abuse its discretion by denying defendant’s motion for a new trial.

The People contended that the district court imposed an illegal sentence for defendant’s aggravated robbery conviction. Aggravated robbery is a class 3 felony and is an extraordinary risk crime that is subject to the modified presumptive sentencing range. The court imposed a forty-eight-year prison sentence for defendant’s aggravated robbery conviction. However, CRS § 18-1.3-801(2) required a sentence of sixty-four years for a defendant convicted of aggravated robbery and adjudicated a habitual criminal. Therefore, the district court’s sentence for the aggravated robbery conviction was illegal and the case was remanded to the district court for resentencing.

Summary and full case available here.

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Tenth Circuit: Rules of Evidence Apply to Admission of First Trial’s Testimony at Second Trial; Dismissal Without Prejudice Proper for Violation for Speedy Trial Act

April 30, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Toombs on Friday, April 26, 2013.

In 2008, a jury found Marlo Toombs guilty on seven counts of drug and firearm felony offenses. On appeal, the Tenth Circuit reversed and remanded his case for violations of the Speedy Trial Act. After the district court dismissed Toombs’ indictment without prejudice, the government filed a new indictment and a jury subsequently found Toombs guilty of six charges.

On appeal, Toombs argued that the district court abused its discretion by admitting his entire testimony from the first trial into evidence at the second trial. The Tenth Circuit held that while the district court should have evaluated the first trial testimony under the Rules of Evidence before admitting it in the second trial, the admission was harmless error given the overwhelming evidence against Toombs and the limiting instruction given.

Toombs also argued the district court erred by dismissing the first indictment without prejudice. After considering the factors contained in 18 U.S.C. § 3162(a)(2) that govern dismissals for violation of the Speedy Trial Act, the court found no abuse of discretion in the decision to dismiss without prejudice. Toombs’ offenses were serious and he failed to establish the delay was “a result of intentional dilatory conduct or a pattern of neglect.”

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Colorado Court of Appeals: Reliance on Previous Exclusionary Order by Trial Court Error Where Balancing Test Under CRE 403 Not Performed

April 29, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Osorio-Bahena on Thursday, April 25, 2013.

Sexual Assault Against an At-Risk Adult—Rape Shield Statute—Prior Sexual Conduct—Mental Capacity—Competency—Involuntary Psychiatric Evaluation.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted sexual assault. The judgment was affirmed.

St. Paul’s House is a residential-care facility for boys with developmental and mental health issues. In 2007, S.S., an 18-year-old resident of the facility with the mental capacity of a 5-year-old, reported that defendant, who worked at the facility, had sexually assaulted him. Defendant was charged with sexual assault against an at-risk adult.

Defendant contended that the exclusion of evidence that described S.S.’s prior incidents of oral and anal sex, offered to explain an alternative source of S.S.’s sexual knowledge, was an abuse of discretion. Evidence of S.S.’s prior sexual conduct was not relevant to show an alternative source of S.S.’s sexual knowledge because (1) S.S.’s limited mental capacity may have given rise to an inference of a lack of sexual knowledge; (2) evidence of prior incidents may show an alternative source of sexual knowledge, regardless of whether the prosecution injects the issue into the trial; and (3) the dissimilarities here did not tend to negate such knowledge. The case was remanded to the trial court to evaluate the admissibility of the evidence under CRE 403.

Defendant contended that the trial court erred by denying his motion for an involuntary psychiatric competency evaluation of S.S. and finding that S.S. was competent to testify. The pretrial testimony by the director of the facility and the videotaped interviews of S.S. both support the trial court’s findings that S.S. could recall the incident and understand the difference between the truth and a lie. Accordingly, the trial court did not abuse its discretion in refusing to order an involuntary examination or finding S.S. competent to testify.

Defendant also contended that the trial court erred by allowing the jury to view a photograph of his bare chest, taken during trial but outside the jury’s presence. He asserted that taking the photograph violated Crim.P. 41.1 and his Fifth Amendment right against self-incrimination. The Court ruled that the photograph was relevant merely to support S.S.’s statements about defendant, and thus rejected defendant’s assertions.

Defendant further argued that the trial court erred when it rejected his request to allow his wife to testify that he was uncircumcised. However, because S.S. was never asked about this particular fact, the evidence was not relevant.

Summary and full case available here.

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Tenth Circuit: Defendant’s Robbery Conviction Affirmed

April 15, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Baker on Thursday, April 11, 2013.

Abasi Baker was convicted in the United States District Court for the District of Kansas on seven counts each of robbery affecting commerce, use of a firearm in relation to a crime of violence and being a convicted felon in possession of a firearm. Defendant appealed his convictions, raising two arguments: (1) that use of a global-positioning-system (GPS) tracking device on his car violated his Fourth Amendment rights, and (2) that the evidence was insufficient to convict him on the eight firearms counts associated with the first four robberies.

The Tenth Circuit did not reach the merits of Defendant’s Fourth Amendment argument because he waived the argument by failing to raise it before trial, and he did not show good cause why it was not raised before trial as required by Federal Rule of Criminal Procedure 12.

The Tenth Circuit also rejected Defendant’s argument that the evidence was insufficient for a rational jury to find that he possessed the identified firearm at the times charged. Viewing the evidence in the light most favorable to the verdict, the record contained ample evidence for  any rational trier of fact to have found the defendant guilty beyond a reasonable doubt.

AFFIRMED.

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Tenth Circuit: Defendant’s Conviction of Conspiracy to Possess with Intent to Distribute Cocaine Affirmed

April 9, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Patterson on Friday, April 5, 2013.

The events that gave rise to Adrian Patterson’s indictment stem from a Drug Enforcement Administration (DEA) investigation into whether Bernard Redd was distributing cocaine in Wichita, Kansas. A substantial portion of the evidence presented against the co-conspirators was obtained through wiretaps of their telephone conversations, which was presented at trial. Patterson was convicted by jury trial of a number of drug charges, including conspiracy to possess with intent to distribute five kilograms or more of cocaine.

On appeal, Patterson raised a number of challenges to his conviction and sentence. He contended:

(1) The district court erred in denying his request for a pretrial hearing to determine his competency to stand trial.

A defendant’s right to a competency hearing is governed in part by 18 U.S.C. § 4241(a), which requires a district court to grant a motion for a hearing in limited circumstances. These include “if there is  reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense. Based on the district court’s observations of Patterson, the Tenth Circuit held the district court did not abuse its discretion in denying his request for a competency hearing.

(2) The evidence offered by the government was insufficient to support his conviction and to provide a basis for the admission of testimony under the coconspirator exception to the hearsay rule.

The Tenth Circuit found that the district court’s factual finding as to the existence of a conspiracy was not clearly erroneous. Further, in the light most favorable to the government, a rational juror could draw the conclusion from the evidence that Patterson was involved in a conspiracy to distribute cocaine.

(3) His Sixth Amendment rights under the Confrontation Clause were violated when hearsay testimony linking him to the conspiracy was introduced at trial.

Patterson argued that the admission of hearsay testimony violated principles established by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Bruton v. United States, 391 U.S. 123 (1968). The Court held that the admission of statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial.

(4) The district court improperly instructed the jury.

The district court made statements about its schedule. Patterson argued the statements exerted undue coercion on the jury. The Tenth Circuit held Patterson’s interpretation of the comments as coercive had no basis in the record or in the law. The district court did not plainly err in its interaction with the jury over scheduling matters.

(5) The district court’s finding at sentencing that he was responsible for the distribution of fifteen kilos of cocaine is clearly erroneous.

Patterson next challenged the district court’s factual finding at sentencing that he was responsible for distributing fifteen kilograms of cocaine. The Tenth Circuit found Patterson did not meet his burden of showing clear error. The testimony supported a finding that up to sixty kilograms of cocaine was actually or intended to be distributed during the conspiracy.

(6) The indictment was insufficiently specific as to the counts charged against him.  

The two principal criteria by which the sufficiency of an indictment is assessed are “first, whether the indictment contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, secondly, in case any other proceedings are taken against him for a similar offense[,] whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” United States v. Washington, 653 F.3d 1251, 1259 (10th Cir. 2011).

Based on this standard, the Tenth Circuit found no error.

(7) The district court erred in failing to exclude evidence obtained in violation of his Fourth Amendment rights.

Patterson’s last claim is that the district court erred in not granting his motion to suppress evidence obtained from the government’s alleged illegal use of cell site location information. By failing to develop any argument on this claim in the Tenth Circuit, Patterson waived this claim.

AFFIRMED.

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Colorado Court of Appeals: Board of Assessment Appeals Did Not Abuse Discretion in Accepting Assessor’s Property Valuation

March 19, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in CTS Investments, LLC v. Garfield County Board of Equalization on Thursday, March 14, 2013.

Property Tax Valuation—Evidentiary Issues before the Board of Assessment Appeals.

In this property tax case, petitioner CTS Investments, LLC (CTS) appealed the order of the Board of Assessment Appeals (BAA) denying its petition challenging the valuation placed on its property by respondent Garfield County Board of Equalization (BOE) for the 2011 tax year. The order was affirmed.

CTS owns two parcels of vacant land in Garfield County. One comprises 10.766 acres, and the other comprises 61.26 acres. Both are located within the 640-acre Castle Valley Ranch Planned Unit Development in the town of New Castle.

For the 2011 tax year, the BOE valued the 10.766 acre property at $307,800 (or roughly $28,500 per acre), and the 61.26 acre property at $1,836,480 (or roughly $30,000 per acre). CTS asserted to the BAA that the property should be valued at approximately $2,200 per acre. Its argument was based in part on the sale of an adjoining property in April 2010. In that transaction, GMAC ResCap sold to CVR Investors, Inc. approximately 120 acres of vacant land and thirteen finished townhome lots for $700,000 (CVR sale). The property had been acquired by GMAC through foreclosure of a loan to Village Homes. Village Homes had purchased the property from CTS in 2007 and 2008 for approximately $8.9 million. The loan to Village Homes at the time of the foreclosure had an outstanding principal balance of more than $10 million.

CTS asserted that the CVR sale was the most comparable sale. The county assessor excluded the sale from her appraisal because it was not an “arm’s length transaction,” due to her opinion that GMAC was under duress when it sold the property. The assessor testified that she looked at four comparable sales and adjusted them as required by statute for time, size, and location. Her comparable sales were completed before the applicable one-and-a-half-year base period. She did this because she concluded there were no comparable sales during the base period. CTS presented its tax consultant, whose valuation included the CVR sale.

The BAA denied CTS’s petition. Its order stated that it found the assessor’s valuation more persuasive and that it agreed with the exclusion of the CVR sale because it did not meet the definition of an arm’s-length transaction. However, the order did not include the BAA’s reasoning for that ruling.

On appeal, the Court of Appeals considered CTS’s objection to the introduction of various articles attached to the assessor’s appraisal discussing the financial status of GMAC. The assessor’s decision not to consider the CVR sale an arm’s-length transaction was based partially on these articles, which came from general and financial news outlets. All but one of the articles included the author’s name, none referenced the CVR sale, and some of the articles made the same or similar assertions. Therefore, the Court inferred that the authors were not biased concerning the parties to the transaction. In addition, CTS had sufficient access to the statements before the BAA hearing, because it had been included in the assessors’ report, which had been issued at least eight months before the BAA hearing began. Furthermore, much of the information contained in the articles already had been admitted without objection through the assessor’s testimony.Given these facts, the Court concluded that the BAA did not abuse its discretion in admitting the articles.

CTS then argued that by not considering the CVR sale, the BAA refused to compile a representative body of comparable sales and therefore erred as a matter of law. The Court first stated that whether the CVR sale was not an arm’s length transaction and therefore appropriately excluded was a matter of fact, not law. Although the record presented conflicting evidence on this issue, there was enough support for the BAA’s finding that the Court would not reverse it on appeal.

CTS asserted that reversal was appropriate because the BAA order did not specify why it credited the assessor’s conclusion that the CVR sale was not an arm’s length transaction. The Court stated that although the better practice is for the BAA to make findings and provide its reasoning for its ruling, its findings may be express or implied and its decision need only be supported by the record.

Finally, CTS asserted there was no competent evidence in the record to support the BAA’s valuation of the property. A reviewing court may set aside a decision of the BAA only if there is no supporting competent evidence or the decision reflects a failure to abide by the statutory scheme for calculating property tax assessments. Here, there was ample competent evidence in the record to support the BAA’s decision.

Summary and full case available here.

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Colorado Court of Appeals: Other Bad Act Evidence Admissible to Show Knowledge But Conviction Reversed on Fourth Amendment Grounds

March 18, 2013 by Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Pollard on Thursday, March 14, 2013.

Possession of More Than One Gram of Cocaine—Habitual Offender for Sentencing—Other Bad Acts Evidence—Fourth Amendment Refusal to Consent to Search.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of possession of more than one gram of cocaine. He also appealed his adjudication as a habitual offender, for sentencing purposes. The judgment was reversed and the case was remanded for a new trial.

The police spotted defendant’s unoccupied car at 3:00 a.m. in an otherwise vacant parking lot in a park. An officer, looking inside the car, noticed on the center console a plastic bag he believed to be crack cocaine. When defendant returned to his vehicle with a female friend, he told the police that the car was his and the substance was probably bubble gum.

Defendant refused to give the police consent to search his car. He was arrested, and the bag—containing 2.66 grams of cocaine—was seized from the vehicle. Drug paraphernalia (a crack pipe, a glass vial, and two re-sealable cloth bags) were found only in his female friend’s purse.

At trial, defendant asserted the cocaine belonged to his friend and that he did not know it was in his car. The friend testified that the cocaine belonged to her, she had brought it with her in her purse, defendant didn’t know she had it, and she had put it on the car console only after defendant had gotten out of the car. Defendant argued he was charged and prosecuted due to racial stereotyping—that because he is black and his friend is a white woman, he was using the cocaine to obtain sex from her.

For purposes of showing motive, knowledge, identity and absence of mistake or accident, the prosecution presented evidence of a drug transaction that occurred fourteen months after the charges arose in this case. In that case, defendant sold crack cocaine to a woman in a grocery store parking lot. He was apprehended shortly thereafter and crack cocaine was recovered from the center console of his car.

The jury convicted defendant as charged. The trial court adjudicated him as a habitual offender and sentenced him to twenty-four years’ incarceration.

On appeal, defendant argued it was error to admit evidence of his subsequent drug transaction with the woman in the grocery store parking lot. The Court of Appeals disagreed. Defendant objected that the evidence was inadmissible under CRE 404(b). An abuse of discretion by a trial court will be found only on a showing that the court misconstrued or misapplied the law or otherwise reached a manifestly arbitrary, unreasonable, or unfair result. Evidence of other bad acts is inadmissible if its relevance depends only on an inference that the person has a bad character and acted in conformity therewith. Under CRE 410, 403, and 404(b), a trial court may admit evidence of a defendant’s other bad acts if (1) the evidence is offered for a proper purpose; (2) the evidence is logically relevant to a material issue in the case; (3) its relevance is independent of the intermediate inference that the defendant has a bad character; and (4) its probative value is not substantially outweighed by the danger of unfair prejudice. The Court concluded that the trial court acted within the scope of its discretion in admitting evidence of defendant’s subsequent possession and distribution of crack cocaine, particularly for the purpose of establishing his knowing possession in this case.

Defendant also argued that reversal was required because the prosecution improperly elicited evidence of, and commented on, his refusal to consent to a search of his car. The Court agreed. The prosecution repeatedly elicited evidence from the officer on the scene that when asked to consent to search of his car, defendant responded by saying, “Nobody searches my car.” Because defendant did not object to this and related statements, reversal was warranted only if it constituted plain error. The Court found it did. The Fourth Amendment gives a defendant a constitutional right to refuse to consent to entry and search. Evidence of a person’s refusal to consent to a warrantless search may not be used to support an inference of guilt. It is even more egregious to argue to the jury that such evidence is probative of guilt. The error in admitting this type of evidence in this case was so clear cut that the trial judge should have been able to avoid it without benefit of objection. Moreover, this was a substantial error because it was seriously prejudicial. Accordingly, the Court reversed defendant’s conviction and the case was remanded for a new trial.

Summary and full case available here.

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Tenth Circuit: No Fourth Amendment Violation in Search of Defendant’s Home

February 21, 2013 by Leave a Comment

The Tenth Circuit published its opinion in United States v. Garcia on Wednesday, February 13, 2013.

A confidential informant told Agent Latin about a quantity of methamphetamine consistent with trafficking in Robert Garcia’s possession. The informant said the methamphetamine could be found in Garcia’s residence and described the residence as a single-wide mobile home without an address but bearing the number 32 on its west end. Latin included this description and a photograph of the residence in the affidavit and application for the search warrant he presented to a state judge. Unfortunately, he mistakenly identified the residence as 1220 Mescalero Street. The state judge issued a warrant to “search forthwith the person or place described in the Affidavit.” Although it commanded police to conduct the search “forthwith,” the search of Garcia’s residence did not occur until nine days after the warrant issued.

The police executed the search against the single-wide trailer bearing the number 32 as depicted in the photograph in Latin’s affidavit, even though that residence was not 1220 Mescalero Street. In the end, officers found approximately 54 grams of methamphetamine, marijuana, pills, around $30,000 in cash, drug paraphernalia, security cameras, ledgers, and other drug-related items inside the home.

Garcia moved to suppress the evidence. The district court denied the motion. Garcia pled guilty to possession with intent to distribute five grams or more of methamphetamine, which allowed him to appeal from the denial of his motion to suppress.

On appeal, Garcia contended the district court should have suppressed evidence obtained from a search of his residence. He argued the warrant was invalid because (1) it was stale and (2) the address on the warrant did not match his residence.

Staleness: The Tenth Circuit found no Fourth Amendment violation because the affidavit’s statements regarding continuous criminal activity situated this case within the case law making the passage of nine days less critical. The delay in the execution of the search warrant did not undermine the probable cause to search Garcia’s home. Even assuming the officers failed to abide the warrant’s instruction to execute it “forthwith,” the failure added almost nothing to the Court’s assessment of the reasonableness of the search.

Proper Premises: Regardless of the error concerning the address, the issuing judge clearly intended for the officers to search the residence described and depicted in the warrant application. There was never any doubt about which residence police should search. The Tenth Circuit held this practical reality outweighed the technical error in the warrant. The description was sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and there was no reasonable probability that another premise might be mistakenly searched.

In sum, the warrant was executed before it became stale and within the time constraints of the federal rules. And, because the warrant adopted the supporting affidavit’s unambiguous description of the residence, the address mismatch is of no consequence.

AFFIRMED.

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SB 13-077: Amending Certain Provisions of the Colorado Probate Code

February 13, 2013 by Leave a Comment

On Tuesday, January 22, 2013, Sen. Ellen Roberts introduced SB 13-077 – Concerning Certain Provisions of the Colorado Probate Code.  This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies provisions concerning the circumstances under which each party and person in interest with a party shall be allowed to testify regarding an oral statement of a person incapable of testifying when such statement is sought to be admitted into evidence.

The bill clarifies that, subject to certain limitations, a personal representative, a person with priority for appointment as personal representative, and a court-appointed fiduciary:

  • May ascertain the testator’s probable intent or estate planning purpose on issues involving the decedent’s estate; and
  • Shall have standing to prosecute or defend that intent or purpose, at the expense of the estate, in probate proceedings.

Under current law, a personal representative must give certain information concerning his or her appointment to the heirs and devisees of the estate not later than 30 days after his or her appointment. The bill adds a requirement that this information must include a notice that any individual who has knowledge that there is a valid, unrevoked designated beneficiary agreement in which the decedent granted the right of intestate succession should give written notice of such knowledge to the personal representative of the decedent’s estate. The bill also makes changes to this law to align it with a provision of the Colorado rules of probate procedure.

The bill amends the probate code to grant a higher statutory priority to payment of child support claims in decedent’s estates. The bill gives a trustee of an intentionally defective grantor trust the discretionary authority to reimburse the grantor for payment of the income taxes attributable to the trust. This authority does not subject the trust to the grantor’s creditors or cause the trust to be included in the grantor’s estate.

The bill allows a trustee to acquire or retain a life insurance policy on the life of a person for whom the trustee has an insurable interest as a trust asset; however, a trust may expressly provide that this provision does not apply to the trust. A trustee is not relieved of liability with respect to any life insurance policy purchased from an affiliated company, or with respect to which the trustee or any affiliated company of the trustee receives any commission, unless either:

  • The trustee has given written notice of such intended purchase to all qualified beneficiaries of the trust or their legal representatives, and receives written consent to such purchase; or
  • The trust agreement contains a provision that permits purchases of life insurance from an affiliate; however, consent shall be conclusively presumed by any qualified beneficiary who has not responded to written notice by the trustee within 30 days after the mailing of such notice to the qualified beneficiary at his or her last known address.

The bill clarifies the applicability of the effective date of the Colorado probate code to conform Colorado law to the Uniform Probate Code’s effective date provisions. The bill is assigned to the Judiciary Committee; the committee will take the bill up on Wednesday, Feb. 13 at 1:30 p.m.

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