April 20, 2018

Colorado Supreme Court: Warrantless Searches Justified by Probable Cause or Exigent Circumstances

The Colorado Supreme Court issued its opinion in People v. Ball on Monday, December 18, 2017.

Scope of an Investigatory Stop—Domestic Violence—Custodial Interrogation—Automobile Exception.

The People filed an interlocutory appeal, as authorized by C.R.S. § 16-12-102(2) and C.A.R. 4.1, from an order of the district court suppressing statements made by, and contraband seized from, Ball. Although the district court found her initial stop to be supported by reasonable articulable suspicion, it nevertheless found that before she made any inculpatory statements, the seizure of her person had exceeded the permissible scope of an investigatory stop; that she was already under arrest by the time she was interrogated without the benefit of Miranda warnings; and that her subsequent consent to search her purse and car was not voluntary.

The Colorado Supreme Court reversed the district court’s suppression order and remanded the case for further proceedings. The court held that the district court either misapprehended or misapplied the controlling legal standards governing investigatory stops, arrests, and custodial interrogations, and that the warrantless searches of defendant’s car and purse were justified on the basis of probable cause and exigent circumstances, without regard for the voluntariness of her consent or compliance with the dictates of C.R.S. § 16-1-301, the statute governing consensual vehicle searches in this jurisdiction.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Interactions Between Police and Defendant Non-Custodial for Miranda Purposes

The Colorado Supreme Court issued its opinion in People v. Garcia on Monday, December 11, 2017.

Miranda Warnings.

In this interlocutory appeal, the Colorado Supreme Court held that the interactions between law enforcement officers and defendant inside her home and in her front yard did not constitute custody for Miranda purposes. Under the totality of the circumstances, the court concluded that a reasonable person in defendant’s position would not have believed her freedom of action had been curtailed to a degree associated with formal arrest. Therefore, the court reversed the trial court’s suppression order.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Defendant Not In Custody at Time of Interview so Suppression Order Reversed

The Colorado Supreme Court issued its opinion in People v. Sampson on Monday, October 30, 2017.

Miranda Warnings.

In this interlocutory appeal, the Colorado Supreme Court concluded that a conversation between defendant and a law enforcement officer that took place in a hospital did not constitute custody for Miranda purposes. Under the totality of the circumstances, the court concluded that a reasonable person in defendant’s position would not have believed that his freedom of action had been curtailed to a degree associated with a formal arrest. Assuming without deciding that giving Miranda warnings can be considered in determining whether a suspect is in custody, the court concluded that defendant was not in custody during any part of his conversation with the law enforcement officer. Therefore, the court reversed the trial court’s suppression order.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: General Personal Jurisdiction Only Appropriate when Business “Essentially at Home” in Colorado

The Colorado Supreme Court issued its opinion in Clean Energy Collective, LLC v. Borrego Solar Systems, Inc. on Monday, April 17, 2017.

Constitutional Law—Personal Jurisdiction—General Jurisdiction—Corporations and Business Organizations.

The Colorado Supreme Court issued a rule to show cause to review the trial court’s  conclusion that defendant Borrego Solar Systems, Inc. is subject to general  personal jurisdiction in Colorado. Because the trial court did not assess whether Borrego was essentially at home in Colorado, the court concluded it did not fully apply the test announced in Magill v. Ford Motor Co., 2016 CO 57, 379 P.3d 1033, and therefore erred in exercising general personal jurisdiction over Borrego. Applying the complete test, the court further concluded that Borrego is not subject to general jurisdiction in this state. The rule to show cause was made absolute and the case was remanded for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Complaint Filed After Denial of Motion to Reconsider was Untimely

The Colorado Court of Appeals issued its opinion in Sterling Ethanol, LLC v. Colorado Air Quality Control Commission on Thursday, February 23, 2017.

Interlocutory Appeal—Motion to Dismiss for Lack of Subject Matter Jurisdiction.

Sterling Ethanol, LLC and Yuma Ethanol, LLC (collectively, Companies) are ethanol manufacturing plants that are sources of air pollution in northeastern Colorado. They are required to operate in accordance with air permits issued by the Colorado Air and Pollution Control Division (Division). After the Division issued two compliance orders addressing the Companies’ alleged violations of their air permits, Companies sought timely administrative review from the Air Quality Control Commission (Commission), which operates pursuant to the Colorado Air Pollution Prevention and Control Act (APPCA). Following an evidentiary hearing, the Commission issued a final order affirming the Division’s orders.

Companies filed a motion to reconsider, which the Commission denied. Companies then filed a complaint in the district court 69 days after the Commission issued its final order and 35 days after the Commission denied its motion to reconsider. The Commission filed a motion to dismiss for lack of subject matter jurisdiction, arguing the complaint was untimely filed. The district court denied the motion. The district court, on the Commission’s request, certified for review the question whether the State Administrative Procedure Act (APA), the APPCA, and the Commission’s procedural rules, read together, compel the conclusion that the complaint was untimely filed, thus depriving the court of appeals of subject matter jurisdiction.

The court held that the district court erred in denying the motion to dismiss because Companies’ complaint was untimely. The party seeking judicial review must file a complaint within 35 days of the effective date of the Commission’s final order, even if that party first filed a motion to reconsider, and the Commission declined to reconsider its order. The plain language of the APPCA, the APA, and the Commission’s procedural rules required such a conclusion.

The order was reversed and the case was remanded for entry of an order dismissing the action.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Officer Had Reasonable and Articulable Basis to Conduct Protective Search of Vehicle

The Colorado Supreme Court issued its opinion in People v. Delacruz on Monday, December 5, 2o16.

Fourth Amendment—Traffic Stops—Protective Search of a Vehicle.

In this interlocutory appeal, the Supreme Court reviewed the trial court’s order suppressing a firearm that police seized from a vehicle in which defendant was a passenger. The Court concluded that the firearm was discovered during a valid protective search of the vehicle under Michigan v. Long, 463 U.S. 1032 (1983), given the circumstances confronting the officer at the time of the search. The officer had an articulable and objectively reasonable basis to conduct a protective search of the passenger compartment of the vehicle because (1) the investigatory stop occurred in an area the officer testified was known for frequent criminal activity; (2) defendant appeared to have given the officer a false name; and (3) the officer observed a large knife on the front floorboard near defendant’s feet when the officer asked him to step out of the vehicle for questioning. The Court further concluded that the officer did not exceed the lawful scope of a protective search by looking behind the driver’s seat because the rear floorboard is an area of sufficient size to conceal a weapon and would have been within the reaching distance of a vehicle occupant.

The trial court’s suppression order was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: “For Sale” Sign Only Invites Viewer to Contact Listing Agent, Not Enter Property

The Colorado Court of Appeals issued its opinion in Rucker v. Federal National Mortgage Association on Thursday, July 28, 2016.

Ellyn and David Rucker decided to purchase a house that their daughter, Kristin, would rent from them. David placed an offer on a house for which Kristin had had a showing with a Heter & Co. listing agent, but Ellyn had not seen the property, so Kristin took Ellyn to the house. There was a “For Sale” sign in the yard and a small notice on the door warning that trespassers would be prosecuted. After walking around the house and looking through some windows, Ellyn started walking from the house down the paved walkway to return to the car. She fell and sustained injuries.

Ellyn sued Federal National Mortgage Association (FNMA) and Heter for damages, alleging she was an invitee under the Premises Liability Act (PLA) because the “For Sale” sign constituted an implied invitation to the public. She also argued that she was an invitee because she was present on the property for purposes of a business transaction. The trial court disagreed and concluded Ellyn was a trespasser, finding that because she never obtained the express or implied consent of the landowner, she did not have an invitation to enter the property. The court did not address Ellyn’s business transaction argument. Upon Ellyn’s request, the court certified its “For Sale” sign order for immediate appeal. The court of appeals dismissed her appeal without prejudice, finding the issues were not ripe. Ellyn again raised the “For Sale” sign and business transaction issues in the trial court, and again the court ruled that Ellyn was not an invitee and rejected her arguments. She again requested the court to certify its order for immediate appeal.

Ellyn filed a second interlocutory appeal, seeking review of both the “For Sale” and business transaction orders. The court of appeals limited its review to the “For Sale” sign issue because the trial court declined to certify the business transaction issue for interlocutory appeal. On appeal, Ellyn contended that the “For Sale” sign created an implied representation that the public was requested, expected, or intended to enter the premises. The court of appeals disagreed. After examining case law from other jurisdictions, the court of appeals found that the “For Sale” sign created only an invitation to contact the listing agent, not to enter the property. Because the listing agent or landowner did not have a practice of allowing others to enter the property without express permission, Ellyn could not show that her entrance on the property was as an invitee.

The court of appeals affirmed the trial court.

Colorado Court of Appeals: Person with Permission to Enter Property but Not Express Invitation is Licensee Under PLA

The Colorado Court of Appeals issued its opinion in Legro v. Robinson on Thursday, December 31, 2015.

Interlocutory Appeal—Premises Liability Act—Dog Bite Statute—Colorado Recreational Use Statute.

The Robinsons are sheep ranchers who hold a permit issued by the U.S. Forest Service (USFS) that allows them to graze sheep within the White River National Forest (subject land). Ms. Legro sustained serious injuries when two of the Robinsons’ predator control dogs attacked her on a road on the subject land while she was participating in a bike race sponsored by the Vail Recreation District. Both the Robinsons and the District had permit authorization to access the road. The Legros sued, asserting claims of negligence, negligence per se, loss of consortium, and strict liability under the dog bite statute.

The Robinsons moved for summary judgment, arguing that the Colorado Premises Liability Act (PLA) preempted the Legros’ common law claims and they were not subject to liability under the dog bite statute because of the working dog exemption. The district court granted the motion. The Legros appealed, and a division of the Court of Appeals in Legro Iaffirmed that the Robinsons were landowners under the PLA, but concluded it was error to find the working dog exemption defeated the Legros’ strict liability claim. The Supreme Court granted certiorarito consider whether the Court in Legros Icorrectly interpreted the working dog exemption. The Supreme Court found it had been incorrect and that the working dog exemption insulates a dog owner from strict liability if a person is bitten by a working dog while (1) on the property of the dog owner or (2) the dog is working under the control of the dog owner on either public or private property.

On remand, the Legros were granted leave to amend their complaint to add a claim for relief under the PLA. In a CRCP 56(h) motion, the Robinsons asked the district court to determine the duty they owed Ms. Legro under the PLA. They argued that the Colorado Recreational Use Statute (CRUS) applied, so Ms. Legro was a trespasser. Alternatively, they argued Ms. Legro was neither an invitee nor a licensee under the PLA.

The district court held that the CRUS did not apply to this case and that Ms. Legro was a trespasser as to the Robinsons under the PLA. Sua sponte, it also ruled that the working dog exemption barred the Legros’ strict liability claim because the Robinsons’ grazing permit created a sufficient property interest to satisfy the exemption.

The Legros argued it was error to find that Ms. Legro was a trespasser, and the Court of Appeals agreed. The grazing permit from the USFS provided a sufficient basis to infer that, by accepting the permit, the Robinsons consented to Ms. Legro’s entry on the property. The permit allows the USFS to determine who may enter the property, and therefore the Robinsons impliedly consented to entry on the property by anyone the USFS allowed. The Court then looked to whether Ms. Legro was affirmatively invited (invitee) or merely permitted (licensee). Because the USFS merely permitted Ms. Legro’s entry as part of the permit for the bike race, she was a licensee, not an invitee.

The Legros also argued it was error to hold that the working dog exemption applied so as to insulate the Robinsons from strict liability under the dog bite statute. The Court agreed, finding that the grazing permit did not confer a property interest in the subject land and therefore the exemption did not apply. The district court’s order was reversed and the case was remanded.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Warrantless Seizure of Laptop Computer Satisfied Plain View Exception

The Colorado Supreme Court issued its opinion in People v. Swietlicki on Monday, November 23, 2015.

Warrantless Seizures—Plain View Exception—Fellow Officer Rule.

In this interlocutory appeal, the Supreme Court reversed the trial court’s order  suppressing evidence found on defendant’s laptop computer after police seized the laptop without a warrant. The Court held that the warrantless seizure was justified under the plain view exception to the warrant requirement. In so holding, the Court clarified that the “immediately apparent” requirement of the plain view exception demands only that the seizing officer have probable cause to associate the item with criminal activity without conducting a further search. The Court also determined that the fellow officer rule applies to probable cause determinations in the context of plain view seizures.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Search of Cell Phone Exceeded Scope of Warrant

The Colorado Supreme Court issued its opinion in People v. Herrera on Monday, October 26, 2015.

Searches and Seizures—Criminal Law.

The Supreme Court held that neither the warrant permitting the police to search defendant Herrera’s cellphone for indicia of ownership nor the plain  exception to the warrant requirement authorized the police to seize evidence of text messages between Herrera and a juvenile girl named Faith W. The warrant did not permit the police to search every folder in the phone for indicia of ownership because if it did, it would qualify as a general warrant in violation of the Fourth Amendment’s particularity requirement. The warrant authorizing a search for text messages between Herrera and “Stazi” (the name used by an officer posing as a juvenile girl) rendered the police’s initial intrusion into the text messaging application legitimate, and the incriminating nature of the particular folder they searched was immediately apparent under the circumstances. However, the third requirement of the plain view doctrine—that the police have lawful access to that folder’s contents—was not met because there was no objective basis for the police to believe that it would contain messages from “Stazi.” Accordingly, the Court affirmed the trial court’s suppression of the evidence seized from the folder.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Vehicle Unlawfully Impounded when Legally Parked on Private Property

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sanders on Friday, August 7, 2015.

Beverly Sanders was arrested as she was leaving a store in Aurora, Colorado, based on an outstanding warrant for failure to comply with probation conditions. Her friend with whom she had been shopping was not detained at first, but was later arrested when police found a baggie of heroin near where he had been. Although the friend offered to find someone to remove Sanders’ car, the police impounded the vehicle, claiming it was at risk for theft or vandalism. A subsequent inventory search revealed methamphetamine, Ecstasy, and paraphernalia. Sanders was indicted for possessing controlled substances with intent to distribute. She moved to suppress the contents of the inventory search, and the district court granted her motion. The government filed a timely interlocutory appeal.

The government argued that seizure of the car was necessary pursuant to the community caretaking exception to the Fourth Amendment’s warrant requirement. The Tenth Circuit explored the strictures of the community caretaking exception in depth, explaining that it generally applies to protect the public safety or promote efficient movement of traffic, and that warrantless impoundments exercised as a pretext for investigation or not exercised according to standardized criteria are unconstitutional. Applying prior case law from its circuit and other circuits, the Tenth Circuit held that “impoundment of a vehicle on private property that is neither obstructing traffic nor creating an imminent threat to public safety is constitutional only if justified by both a standardized policy and a reasonable, nonpretextual community-caretaking rationale.” In this case, the vehicle was parked legally on private property, neither obstructing traffic nor threatening public safety. The Aurora Police Department’s standardized policy regarding vehicles legally parked on private property was to either have Sanders release them from potential liability if the car was left in the lot or have it towed by a private company. They neither offered Sanders these options nor explained their failure to do so, and thus the impoundment was unlawful. Additionally, the Tenth Circuit found the Aurora policies unlawful because they do not offer an officer discretion as to which option to choose. The Tenth Circuit held the impoundment was unlawful for an independent reason: it was not justified by a reasonable, non-pretextual community caretaking rationale.

The Tenth Circuit affirmed the district court’s suppression order.

Colorado Supreme Court: Despite Counsel’s Ineffective Assistance, Defendant Knowingly, Voluntarily, and Intelligently Decided to Testify

The Colorado Supreme Court issued its opinion in People v. Quintero-Amador on Tuesday, October 13, 2015.

CAR 4.1(a)—Fifth Amendment—Sixth Amendment.

In this interlocutory appeal brought by the People pursuant to CAR 4.1(a), the Supreme Court reversed the trial court’s order suppressing at retrial the testimony given by defendant at his first trial. The Court concluded that the trial court erred in suppressing this evidence because defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights when he testified at his first trial. The Court further concluded that trial counsel’s ineffective assistance did not directly affect defendant’s prior testimony, thus precluding a finding that the admission of this testimony would violate defendant’s Sixth Amendment rights.

Summary and full case available here, courtesy of The Colorado Lawyer.