October 24, 2017

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.

Colorado Supreme Court: Officer Need Not Consider Innocent Explanations Before Conducting Investigatory Stop

The Colorado Supreme Court issued its opinion in People v. Reyes-Valenzuela on Monday, April 24, 2017.

Criminal Law—Evidence Suppression.

This interlocutory appeal required the Colorado Supreme Court to answer whether an officer with a reasonable, articulable suspicion that criminal behavior is afoot must consider the possible innocent explanations for otherwise suspicious behavior before conducting an investigatory stop. The court held that, because case law from this court and the U.S. Supreme Court does not require an officer to consider every possible innocent explanation for criminal behavior, the officers in this case justifiably performed an investigatory stop on defendant based on a reasonable, articulable suspicion of ongoing criminal activity. The court therefore reversed the trial court’s suppression order and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Reasonable Person Would Not Have Felt Free to Leave When Stopped by Officers

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Thursday, February 9, 2017.

Phillip Hernandez was charged with one count of being a felon in possession of a firearm in violation of 18 U.S.C § 922(g)(1). The district court granted his motion to suppress the evidence, as it was obtained in violation of the Fourth Amendment’s prohibition against unlawful seizure during his encounter with two police officers. The government appealed, claiming that the court should apply the subsequent decision in Utah v. Streiff, and arguing that the district court failed to properly apply the Spence factors to the seizure.

On October 20, 2014, two police officers observed Phillip Hernandez walking near a construction site in a known high crime area. The uniformed officers asked Hernandez if they could speak to him, and began asking him questions while driving along side him in their marked police car as Hernandez continued walking. The officers eventually asked Hernandez to stop so they could ask him additional questions. While questioning Hernandez, the officers discovered an active warrant against him and that Hernandez was in possession of a firearm. Hernandez filed a motion to suppress the firearm evidence, which the district court granted.

On appeal, the government asserted that the Supreme Court’s decision in Utah v. Streiff should apply to this case. In Streiff, the Supreme Court ruled that courts may admit illegally obtained evidence as long as the link between the evidence and the illegal method is sufficiently remote, in a case where the evidence in question was obtained by police officers who illegally stop someone and later discover an existing warrant against that person. The Tenth Circuit, however, rejected the application of the decision in Streiff, agreeing with Hernandez that the government had waived the right to present this argument as they had failed to assert it at the district court level.

The court next turned to the government’s argument that the lower court improperly applied the Spence factors to Hernandez’s encounter with the two officers because officers are free to approach individuals and question them. The court stated that the crucial test to determine if an unlawful seizure has occurred is if the officer’s conduct would lead a reasonable person under similar circumstances to believe they were not free to ignore the police presence and leave the situation. The court agreed with the district court’s application of the factors enumerated in United States v. Spence, stating that once the police officers asked Hernandez to stop, because there were two uniformed police officers in a police car at night without other witnesses present, a reasonable person would not have felt he could walk away.

Finally, the court addressed if the officers had reasonable suspicion to justify an investigative detention. In considering the reasonableness of the detention, the court looked at if there were “specific and articulable facts and rational inferences drawn from those facts” that gave the officers reasonable suspicion that Hernandez was involved in criminal activity. The court looked at the officer’s stated reasons for suspicion, including that Hernandez was walking near a construction site where there had been prior thefts, Hernandez was in a high crime area, Hernandez chose not to walk on the side of the street with a sidewalk, and Hernandez was dressed in all black clothing and carrying two backpacks. The court ultimately determined that, although the level of suspicion required for a Terry stop is less than that required for an arrest, the circumstances in this case did not rise to the requisite level for the officers to stop Hernandez.

Justice Briscoe dissented, stating that he believed the encounter between Hernandez and the officers was more along the lines of a consensual encounter and did not constitute an unlawful seizure considering the circumstances.

The Tenth Circuit affirmed the district court’s grant of a motion to suppress the evidence.

Colorado Supreme Court: Totality of Circumstances Informs Probable Cause Determination

The Colorado Supreme Court issued its opinion in People v. Cox on Monday, February 6, 2017.

Fourth Amendment—Probable Cause—Totality of the Circumstances—Canine Alerts.

Several factors led the trooper, who had stopped defendant’s vehicle for a traffic infraction, to suspect that there might be evidence of illegal activity in the vehicle’s trunk, including defendant’s unusual nervousness, an inconsistency in his account of his travels, the fact that he had two cell phones on the passenger seat of his vehicle, and the fact that the trooper’s canine alerted to the trunk for the presence of  drugs. The trooper searched the trunk over defendant’s objection and found  multiple sealed packages of marijuana. Defendant filed a motion to suppress the evidence found in the trunk, which the trial court granted. The trial court concluded that the canine alert could not be considered under the totality of the circumstances because the canine would alert to both legal and illegal amounts of marijuana. The trial court ultimately held that the trooper did not have probable cause to search the trunk.

The Colorado Supreme Court reversed. Under People v. Zuniga, 2016 CO 52, issued before the trial court issued its order in this case, the canine alert should be considered as a part of the totality of the circumstances. Considering the totality of the circumstances, including the canine alert, defendant’s unusual nervousness, an inconsistency in his account of his travels, and the fact that he had two cell phones on the passenger seat of his vehicle, there was probable cause to search the vehicle’s trunk.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: State of Residence Cannot Support Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in Vasquez v. Lewis on Tuesday, August 23, 2016.

Peter Vasquez was driving eastbound on I-70 through Kansas at 2 a.m., traveling from Colorado to Maryland. Officer Lewis and Officer Jimerson could not read Vasquez’s temporary tag through his car’s tinted windows so they initiated a traffic stop. Jimerson observed blankets and a pillow in the front passenger seat and back seat of the car as he approached, and assumed something was obscured by the blankets in the back seat. Vasquez responded that there was no one else in the car. Jimerson took Vasquez’s license and proof of insurance and returned to the patrol car, where he told Lewis that Vasquez appeared nervous. Jimerson sent Lewis to gauge Vasquez’s nervousness and “get a feel for him.” Upon his return, Lewis responded that Vasquez looked “scared to death.” Jimerson checked the insurance and discovered that Vasquez had insurance for two newer vehicles. Suspecting that Vasquez was transporting illegal drugs, Jimerson called for a drug sniffing dog.

Lewis returned to Vasquez’s vehicle and asked where he worked, why he wasn’t driving the newer car, and why he didn’t have more belongings in his vehicle if he was moving. Eventually, Lewis issued a warning and started to walk away, then walked back and asked Vasquez if he could ask a few more questions. Lewis asked Vasquez if there were any illegal drugs in the vehicle, which Vasquez denied. Lewis then asked to search the vehicle but Vasquez refused. After he refused, Lewis detained Vasquez and searched the vehicle, aided by the drug dog. The search revealed nothing illegal.

Vasquez brought suit against the officers under 42 U.S.C. § 1983, arguing they violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. The district court initially denied the officers’ motion to dismiss, but after discovery, it granted the officers’ motion for summary judgment based on qualified immunity, holding that Vasquez could not show the officers violated a clearly established right. Vasquez timely appealed.

The Tenth Circuit remarked that it has repeatedly admonished that once an officer establishes a temporary tag is valid, the officer should explain the reason for the initial stop and let the motorist continue on his or her way. The officers argue their extended seizure was justified by reasons other than the temporary tag. The Tenth Circuit considered only whether the search and dog sniff were valid based on Vasquez’s challenge.

The officers contended their suspicions were valid because Vasquez was driving alone late at night; he was driving from Colorado, a “drug source area”; he was driving on I-70, a “known drug corridor”; he did not have enough items in his car to support his assertion that he was moving; the items in the backseat were obscured from view; he had a blanket and pillow in his car; he was driving an older car despite owning a newer one; there were fresh fingerprints on his trunk; and he seemed nervous. The Tenth Circuit was troubled by the officers’ justification that because Vasquez was from Colorado it should establish reasonable suspicion. The Tenth Circuit strongly cautioned that

It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The Tenth Circuit continued that the continued use of state of residence as justification is impermissible.

The Tenth Circuit also found that nervousness could not be used as justification, and found that the officers’ reasoning was contradictory at points. The Tenth Circuit similarly disregarded the argument that because Vasquez was driving on I-70 there should be suspicion, noting it would be suspicious if he were driving from Colorado to Maryland and not using I-70. The Tenth Circuit concluded the officers violated Vasquez’s constitutional rights by searching his car.

Turning to whether the right to be free of unconstitutional searches was clearly established at the time of the incident, the Tenth Circuit found precedent to support that it was. In fact, the Tenth Circuit found that the same officer, Officer Jimerson, was the subject of a strikingly similar case in which the Tenth Circuit found no reasonable suspicion for the driver’s detention.

The Tenth Circuit reversed the district court’s summary judgment and remanded for further proceedings. Judge McHugh dissented; he would not have found a constitutional violation and would have distinguished the other case involving Officer Jimerson.

Colorado Supreme Court: Reasonable Suspicion Analysis Requires Examination of Totality of Circumstances

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, February 29, 2016.

Fourth Amendment—Reasonable Suspicion—Traffic Stops.

The Supreme Court held that an assessment of whether a motorist’s driving gave rise to a reasonable suspicion of a violation of CRS § 42-4-1007(1)(a), which requires a vehicle to be driven entirely within a single lane “as nearly as practicable,” requires consideration of the totality of the circumstances. The Court reversed the trial court’s suppression order, which concluded the officer lacked an objectively reasonable basis to stop defendant. Defendant’s semi-truck crossed the line separating the right lane from the shoulder twice. The Court concluded that, under the circumstances, defendant’s driving gave rise to a reasonable suspicion that the statute had been violated. Therefore, the initial stop was reasonable.

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

Tenth Circuit: Innocent Explanations Need Not Dissipate Officer’s Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in United States v. Padilla-Esparza on Friday, August 14, 2015.

Daniel Enrique Padilla-Esparza is a citizen of Mexico and a lawful permanent resident of the United States. On February 25, 2013, he was entering the United States from Mexico when a drug-sniffing dog alerted to his truck. Officers searched his truck and found an empty non-factory compartment above the gas tank. The officers released Padilla-Esparza but entered an alert on their communications system regarding Padilla-Esparza and his truck. On September 7, 2013, agents stopped Padilla-Esparza as he was traveling through a border checkpoint on his way to Mexico. CBP Officer Aguilera and his partner interviewed Padilla-Esparza. Their suspicions were raised because Padilla-Esparza had money hidden in a camera case that he had not originally declared, he could not name the last three clients of his landscaping business, he had been through border checkpoints every month for the past six months, and he had receipts for $1,300 in recent clothing purchases. Because of these inconsistencies, Officer Aguilera created a second alert for Padilla-Esparza and updated his license plate information. Officer Aguilera also set up an alert to be sent to his cell phone when Padilla-Esparza returned to the United States.

On September 10, 2013, Officer Aguilera received an alert that Padilla-Esparza had re-entered the United States. He issued a “be on the lookout” alert (BOLO) for Padilla-Esparza and his truck. Three days later, Padilla-Esparza entered the Las Cruces Border Patrol checkpoint, but an officer waved him through the checkpoint due to heavy rain. Another officer monitoring license plates recognized Padilla-Esparza’s and stopped traffic, but soon realized that Padilla-Esparza had already been waved through. Border Patrol agents with a drug-sniffing dog pursued Padilla-Esparza and pulled him over about 15 miles from the border. However, one of the agents mistakenly believed they had the wrong truck and let Padilla-Esparza go. When the agents realized their error, they again pursued Padilla-Esparza and pulled him over again. A drug-sniffing dog alerted to Padilla-Esparza’s truck. Due to the heavy rain, the agents asked him to return to the border patrol checkpoint, and he agreed. At the checkpoint, the agents found 16 kilograms of cocaine in the hidden non-factory compartment.

Padilla-Esparza was indicted on one count of possession with intent to distribute 5 kilograms or more of cocaine. He moved to suppress the evidence seized from his truck. After an evidentiary hearing, the district court denied his motion. He eventually pleaded guilty but reserved the right to appeal the district court’s denial of his motion to suppress. He was sentenced to 78 months in prison followed by two years of supervised release. He appealed.

On appeal, Padilla-Esparza argued the evidence seized from his vehicle should be suppressed because (1) the first stop was unlawful because Officer Aguilera lacked reasonable suspicion to issue the BOLO alert, and (2) the second stop was unlawful because any reasonable suspicion was dissipated after he was released from the first stop. The Tenth Circuit rejected both arguments. Although Padilla-Esparza argued there were innocent reasons for all the reasons Officer Aguilera found suspicious, the Tenth Circuit found that the mere possibility of innocence does not negate reasonable suspicion. As to Padilla-Esparza’s argument that the second stop was unlawful, the Tenth Circuit again disagreed, noting that the officers’ suspicions were not dissipated after the first stop. Rather, they erroneously released the vehicle based on a mistaken belief that it was not the correct vehicle. They did not investigate Padilla-Esparza at all at the first stop, so there was no basis on which their suspicions could have dissipated.

The district court’s order allowing introduction of the evidence from Padilla-Esparza’s vehicle was affirmed.

Tenth Circuit: Combination of Factors Sufficient to Provide Reasonable Suspicion for Vehicle Search

The Tenth Circuit Court of Appeals issued its opinion in United States v. Moore on Thursday, July 30, 2015.

Tracey Moore was driving through Oklahoma when he was pulled over for going three miles per hour over the speed limit. The trooper ordered him to get out of the car give the officer his license and registration. Moore complied, meeting the trooper in front of his patrol car. The trooper later testified that Moore seemed excessively nervous, even after he advised that he was only going to issue a warning. The trooper completed the warning, returned Moore’s documents to him, and told him to have a good day. Before Moore could go, though, Trooper Villines asked if he could speak to Moore a bit longer. The trooper asked Moore if he had ever been in trouble before. Moore said he had but did not want to discuss the details, adding he “could probably look it up easy enough.” The trooper then asked Moore if he had anything illegal in the car and Moore said no. Trooper Villines asked for consent to search the vehicle and Moore refused. At that point, the trooper advised Moore that he was being detained so a dog could sniff his vehicle.

Approximately two and a half minutes later, Trooper Fike and his dog, Jester, arrived. As they were walking around the rear of Moore’s vehicle, Jester snapped his head around and jumped through the open driver’s side window. Jester had his nose on the center console and was wagging his tail. Villines and Fike then searched Moore’s vehicle. Although they found no drugs, there was a sawed-off shotgun and ammunition in the trunk. Because Moore had a prior felony conviction, he was arrested and indicted on three counts: (1) being a felon in possession of ammunition, (2) knowingly transporting in interstate commerce a sawed-off shotgun, and (3) being a felon in possession of a firearm. He moved to suppress all evidence obtained during the traffic stop, arguing Trooper Villines lacked reasonable suspicion to detain him after the traffic stop was completed and Jester’s entry into his vehicle constituted an illegal search in violation of the Fourth Amendment. The district court denied his motion. Moore pleaded guilty to Count 1, reserving the right to appeal the denial of his motion to suppress. He was sentenced to 24 months’ imprisonment followed by three years’ supervised release.

On appeal, Moore argued the district court erred in denying his motion to suppress because the trooper’s decision to detain him unreasonably exceeded the initial scope of the traffic stop and the trooper lacked reasonable suspicion of illegal activity. The government contended that Moore’s excessive nervousness, his acknowledgment of a prior criminal history, and his admission that he had recently been added to the car’s registration were sufficient to provide reasonable suspicion to Trooper Villines. The Tenth Circuit agreed. Although none of the factors in isolation was enough to support reasonable suspicion, taken as a whole they provided sufficient basis for the dog sniff.

Moore also argued that when the dog jumped into his vehicle the search became unlawful because the dog did not properly alert before jumping into the vehicle and because Jester “was acting like a police officer when he was allowed to go inside [the] vehicle.” The Tenth Circuit disagreed. Following prior precedent, the Tenth Circuit found no error in allowing the dog to sniff the exterior of the vehicle, and because the window was open the officers did not manipulate the evidence to get their desired result.

The Tenth Circuit affirmed the district court’s denial of Moore’s suppression motion.

Tenth Circuit: Excluding Evidence Based on Search Shown Later to be Legal Exacts High Toll on Justice System

The Tenth Circuit Court of Appeals issued its opinion in United States v. Huff on Tuesday, April 14, 2015.

A vehicle stopped at an intersection over the median line, then backed up and stopped the vehicle correctly. Two Kansas City police officers witnessed the violation and initiated a traffic stop. The officers approached on either side of the vehicle, and the passenger-side officer spotted a handgun under the driver’s seat as he approached. The officers ordered the two men to put their hands on the dash, but the driver, Dana Huff, made movements toward the center console that led the officers to believe he was about to drive away. The passenger-side officer opened the door, reached into the car, and removed the keys from the ignition. He spotted another weapon, a sawed-off shotgun, when he opened the door. The officers removed the men from the vehicle and Huff was subsequently indicted on one count of being a felon in possession of a firearm and one count of possession of an unregistered short-barreled rifle.

At trial, Huff sought to suppress evidence of the firearms, arguing the officers lacked reasonable suspicion of criminal activity when searching his vehicle, and also arguing that they unlawfully arrested him without a warrant and without probable cause to believe he had committed a crime. The trial court held the initial stop to be lawful because of the moving violation, and held that the officer who removed the keys from the vehicle acted lawfully, but granted the motion to suppress the firearm evidence because at the time of the arrest the officers had found no evidence of a legal violation. The government moved to reconsider suppression, citing a Kansas City municipal ordinance that prohibits transporting uncased loaded weapons. The trial court granted the government’s motion and found the officers had probable cause for the arrest. A jury convicted Huff of being a felon in possession, but did not convict on the unregistered rifle count. Huff appealed.

The Tenth Circuit first considered whether the district court properly granted the government’s motion to reconsider. Huff argued the government provided no excuse for its failure to bring the municipal ordinance to the trial court’s attention, but the Tenth Circuit found it need not do so. The government’s motion for reconsideration related to an omission of a legal argument, not the failure to present evidence on a particular issue, so the trial court concluded there was no police misconduct to deter by suppressing the evidence. Revealing a circuit split on the issue of how district courts should handle motions to reconsider suppression orders, the Tenth Circuit found persuasive the reasoning of the Second, Fifth, Seventh, and Ninth Circuits, which do not require a bright-line justification rule. Citing Supreme Court precedent, the Tenth Circuit found that application of the exclusionary rule provides no meaningful deterrence when suppressed evidence later turns out to have been legally obtained, and instead exacts a high toll on the justice system by potentially allowing guilty defendants to go free.

The Tenth Circuit next evaluated Huff’s argument that the officers arrested him without probable cause. Huff contended that because the officer who reached into the vehicle and removed his keys did not specifically cite the municipal ordinance in his testimony, it seems unlikely that the officer’s action was based on that ordinance and therefore the officer lacked probable cause. Again following Supreme Court precedent, the Tenth Circuit found these arguments foreclosed, since an officer’s subjective reason for making an arrest may be different from the criminal offense from which probable cause arises. Upon seeing the uncased weapon, the officers in this case had probable cause to conduct a search of the vehicle and arrest Huff based on the weapons violation.

The Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Under Particular Circumstances, Officers Justified in Taking Protective Custody of Seemingly Intoxicated Individual

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gilmore on Friday, January 16, 2015.

In January 2013, National Western Stock Show workers alerted police to the presence of a disoriented and seemingly intoxicated man, Andre Gilmore, wandering near cattle tie-ins in an exhibitor parking lot at the Stock Show. The responding officers parked near Mr. Gilmore, exited their vehicle, and began walking toward him. Mr. Gilmore did not appear to notice the police officers until they spoke to him. When the officers asked if he was alright and what he was doing in the area, Mr. Gilmore did not respond. One of the uniformed officers identified himself a police officer and asked again, and Mr. Gilmore mumbled an incoherent answer. The officers determined that Mr. Gilmore was highly intoxicated and was a candidate for protective custody. They conducted a pat-down search of Mr. Gilmore and found a handgun tucked into his waistband. The officers arrested him for possessing a firearm while intoxicated in violation of C.R.S. 18-12-106(d) and drove him to the Stock Show security office. Mr. Gilmore was in and out of consciousness during this time, but he managed to provide his name and birthdate to one of the officers, who used the information to access his criminal history. They discovered he had a prior felony conviction that prohibited him from possessing a firearm, and a federal grand jury eventually charged Mr. Gilmore with one count of being a felon in possession.

Before trial, Mr. Gilmore filed a motion to suppress the gun seized during the pat-down search, arguing the officers lacked reasonable suspicion to believe he was armed and dangerous. The district court held an evidentiary hearing and determined that although the evidence did not support a reasonable suspicion that Mr. Gilmore was armed and dangerous, the police had probable cause to take Mr. Gilmore into protective custody for detoxification, and as such were justified in conducting a pat-down search before taking him into custody. After the evidentiary hearing, Mr. Gilmore signed a conditional plea agreement, reserving the right to appeal the denial of his motion to suppress. He was sentenced to 28 months in prison and timely appealed.

On appeal, Mr. Gilmore argued the district court erred in concluding the officers had probable cause to believe he was a danger to himself based on (1) his intoxication, (2) the dangerousness of the surrounding area, and (3) the danger posed by the cold weather. He conceded that if the officers had probable cause to believe he was a danger to himself, they were justified in conducting the pat-down search.

Mr. Gilmore contended that there was no evidence of his intoxication other than witness testimony that he appeared intoxicated, since there was no blood or breath analysis for alcohol intoxication. However, examining the totality of the circumstances, the Tenth Circuit found the officers were justified in finding Mr. Gilmore was a threat to himself or others due to his intoxication. His behavior suggested that he was disoriented and under the influence of alcohol or drugs, he did not initially react to the presence of the uniformed officers, and his reaction times were impaired.

Mr. Gilmore next argued that the government offered no evidence that the Stock Show was dangerous. However, officers testified that there was significant gang activity in the surrounding areas, and a disoriented person carrying a briefcase would be at risk for harm. Additionally, there were busy streets nearby, and Mr. Gilmore was at risk for wandering into traffic in his disoriented state.

As to Mr. Gilmore’s claims that he was dressed appropriately for the weather, the Tenth Circuit found evidence to support an inference that he would not have been appropriately dressed if he had passed out and been subjected to the day’s low temperature of -10 degrees Fahrenheit.

The Tenth Circuit affirmed the district court, concluding the officers had reasonable suspicion to believe Mr. Gilmore was a danger to himself because of his apparent intoxication in an environment that posed significant risks. The Tenth Circuit stressed that its finding was fact-specific and narrow, and that officers must have probable cause to take a person into protective custody.

Tenth Circuit: Fourth Amendment Search and Seizure Was Lawful

The Tenth Circuit Court of Appeals published its opinion in United States v. Harris on Friday, November 15, 2013.

Alonzo Johnson was convicted of participating in the contract killing of Neal Sweeney, a Tulsa businessman. While officers worked to build their case against Mr. Johnson, a fair number of facts began pointing to Mr. Harris’s auto shop as a place where evidence might be hidden. So officers secured a warrant to search the shop and, while executing it, came across an illegal gun and drugs belonging to Mr. Harris. As a result, Mr. Harris was convicted of federal charges. Mr. Harris appealed, arguing that the district court should have suppressed the evidence found in his shop or at least granted his motion for a new trial.

Mr. Harris acknowledged that the officers had a warrant for their search and did not contest the manner of its execution. Instead, he argued the warrant was constitutionally defective on its face because it failed to establish a “nexus” between the crime officers sought to investigate and his auto shop.

For a search to qualify as “reasonable” within the meaning of the Fourth Amendment, the court had to discern some “nexus between the contraband to be seized or suspected criminal activity and the place to be searched.” United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005). The Tenth Circuit has held that a “sufficient nexus” is established by a search warrant when the materials supporting it describe “circumstances which would warrant a person of reasonable caution [to believe] that the articles sought are at a particular place.” United States v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009). For its part, the Supreme Court has held that “[p]robable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Grubbs, 547 U.S. 90, 95 (2006).

The Tenth Circuit held that, viewed in whole, the information in the record was enough to cause a reasonable person to believe evidence about the murder-for-hire plot could be found at the auto shop. The court held the search here was lawful, the fruits of it were untainted by any Fourth Amendment violation, the evidence presented against Mr. Harris at trial was lawful, and no lawful basis existed to undo the jury’s verdict.

The judgment was AFFIRMED.

Tenth Circuit: Continued Terry Stop Violates Fourth Amendment Once Initial Reasonable Suspicion is Dispelled

The Tenth Circuit published its opinion in United States v. De La Cruz on Wednesday, January 10, 2013.

Enrique De La Cruz appealed the denial of his motion to suppress evidence obtained during an investigative seizure. Three Immigration and Customs Enforcement (“ICE”) agents were at a truck wash in Tulsa. They were looking for a man thought to be unlawfully in the United States.  The man purportedly worked at the truck wash. Because the truck wash was closed, there was no one there when the agents arrived. Soon thereafter a car with dark tinted windows drove up to the truck wash to drop off a passenger. The car’s driver was De La Cruz, not the man ICE was looking for, although ICE did not know that at the time. De La Cruz’s brother ran from the car after the ICE agents ordered De La Cruz to get out of the car. After the agents returned with the brother, they figured out De La Cruz was not who they sought but continued to detain him and asked for identification. He gave them a fake ID and they discovered he was in the U.S. illegally and had previously been deported.

In a 2-1 decision, the Tenth Circuit held that although the agents were justified in their initial stop, the duration of De La Cruz’s detention could not be justified by that initial suspicion. Once their reasonable suspicion that he was the person they sought was dispelled, “[e]ven a very brief extension of the detention without consent or reasonable suspicion violates the Fourth Amendment.” The fact that the defendant’s brother ran did not justify the continued seizure because the person who is detained must be suspected of criminal activity.

The court disagreed with the district court’s interpretation of Immigration and Naturalization Service v. Lopez-Mendoza when it held that the defendant’s identification was not suppressible even if the seizure was unlawful. The Tenth Circuit had previously held that “the “identity” language in Lopez-Mendoza refers only to jurisdiction over a defendant and it does not apply to evidentiary issues pertaining to the admissibility of evidence obtained as a result of an illegal arrest and challenged in a criminal proceeding.” Therefore, the court reversed the denial of De La Cruz’s suppression motion,