April 26, 2017

Colorado Supreme Court: Use of Refusal to Consent to Blood Test as Evidence Does Not Violate Fourth Amendment

The Colorado Supreme Court issued its opinion in Fitzgerald v. People on Monday, April 17, 2017.

Searches and Seizures—Refusal to Submit to 12 Blood-Alcohol Testing—Admission of Refusal Evidence.

The Colorado Supreme Court considered whether the prosecution’s use of a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk-driving offense, in accordance with the terms of Colorado’s Expressed Consent Statute, C.R.S. § 42-4-1301.1, violates the Fourth Amendment. Because the use of such refusal evidence does not impermissibly burden a defendant’s right to be free from unreasonable searches, the court concluded that the use of such refusal evidence does not violate the Fourth Amendment. The court therefore affirmed the judgment of the district court.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Exigent Circumstances Justified Warrantless Search of Suspect’s Mouth

The Colorado Court of Appeals issued its opinion in People v. Carr on Thursday, November 17, 2016.

Vehicle—Probable Cause—Non-Consensual Search—Mouth—Unlawful Drugs—Evidence—Suppression—Fourth Amendment.

A police surveillance team identified the vehicle Carr was riding in as possibly being involved in drug sales. Officers observed the vehicle speeding and weaving into another lane and pulled it over. The officer who approached the driver’s side of the vehicle smelled alcohol and marijuana. The officers noticed that Carr was making chewing motions with his jaw and had a golf-ball sized bulge in his cheek. He refused the officers’ commands to spit out the contents of his mouth. The officers forced open Carr’s mouth and removed ten bags of drugs, which later tested positive for cocaine. Carr was charged with various crimes. He moved to suppress all evidence resulting from the search of his mouth. The court denied his motion, and he was ultimately convicted.

On appeal, Carr argued that the nonconsensual search of his mouth violated the Fourth Amendment and the court thus erred in failing to suppress the evidence obtained during that search. In addition to probable cause for the arrest of a suspect, which was not at issue in this case, the Fourth Amendment requires the state to prove three factors to render a warrantless internal body search constitutional: (1) a clear indication that incriminating evidence will be found; (2) exigent circumstances that justify the intrusion and make it impractical to obtain a search warrant; and (3) extraction of the evidence in a reasonable manner and by a reasonable method. Here, there was a clear indication that evidence would be found because the officers believed that Carr was in a vehicle that was suspected to be involved in drug dealing; they saw a large bulge in his mouth; he refused to speak to the officers or reveal what was in his mouth and was trying to chew or swallow what was in his mouth; and the officers had experience or training that indicated that suspects would attempt to swallow drugs. Exigent circumstance justified the search because Carr was attempting to chew and swallow, and it was imperative for the officers to retrieve whatever was in Carr’s mouth to preserve evidence and keep Carr from harming himself. Finally, extraction of the evidence was reasonable. Although the officers used physical force to search Carr’s mouth, they did not force him to undergo any invasive medical procedure or apply force to his throat. The minimal risk to Carr’s health and safety and the intrusion on his privacy and dignity did not outweigh the community’s interest in retrieving the bags of drugs. Therefore, the search of Carr’s mouth did not violate his Fourth Amendment rights.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Impoundment of Vehicle Unlawful Where Driver Was Not Arrested

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, October 20, 2016.

Carl Brown was pulled over for failing to make a complete stop at a stop sign. The officer who pulled him over discovered Mr. Brown was driving with a suspended license. The officer decided to issue Mr. Brown a summons, but not arrest him. The officer then impounded Mr. Brown’s car and conducted an inventory search, which revealed drugs. At that time, Mr. Brown was arrested, charged with, and ultimately convicted of possession of a controlled substance (over two grams) and possession of a controlled substance with intent to distribute.

On appeal, Mr. Brown argued that the inventory search violated the Fourth Amendment, and the contents of that search should therefore have been suppressed. Mr. Brown argued several other points of error, but because the Colorado Court of Appeals agreed with him that the initial search was illegal, it did not address his remaining contentions.

The court evaluated the impoundment statute, which allows for police to impound a vehicle when the impoundment occurs to further public safety, community caretaking functions, or to remove disabled or damaged vehicles. The officer who pulled Mr. Brown over testified that Mr. Brown’s vehicle was off the road, not blocking traffic. He testified that he impounded the vehicle because Mr. Brown’s license was suspended. The court found this insufficient to survive a Fourth Amendment analysis. The court noted that because the officer decided not to arrest Mr. Brown, there was no reason why Mr. Brown could not have stayed with his vehicle and either called a friend to drive the car or called a tow truck himself. Because the officer did not give Mr. Brown the choice of whether to take care of the vehicle himself or have the police impound it, the seizure was unlawful in violation of the Fourth Amendment.

The court of appeals reversed and remanded with orders for the trial court to grant the motion to suppress and for proceedings consistent with their opinion.

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.

Colorado Court of Appeals: State and Federal Constitutions Provide Same Protection Regarding Searches

The Colorado Court of Appeals issued its opinion in People v. Parks on Thursday, November 5, 2015.

Vehicle—Inventory Search—Evidence—Suppression—State and Federal Constitutions.

Parks was driving a van when officers pulled him over on suspicion of fictitious license plates after observing expired plates on the van. Parks did not have a valid driver’s license or registration. In preparation to impound the van, the officers searched and inventoried the contents of the van. They seized nine plastic baggies of methamphetamine, two pipes, a digital scale, a scoop, a spoon, an empty pill bottle, two wiretap detection devices, and a receipt listing a credit card allegedly belonging to Parks. The evidence gathered from the inventory search was admitted at trial. Parks was convicted of possession with intent to distribute a controlled substance, driving under suspension, failing to provide insurance, displaying fictitious license plates, driving an unregistered vehicle, and six habitual criminal counts.

On appeal, Parks contended that the trial court erred by declining to suppress the evidence gathered from the inventory search of the cooler found in his van. The state and federal constitutions are coextensive in the context of inventory searches. The Colorado Constitution does not prohibit the opening and inspection of a closed container found during a vehicle inventory search if the search was conducted in accordance with a standardized departmental policy and there is no showing that the police acted in bad faith or for the sole purpose of investigation. Here, the trial court found, with record support, that the officer’s opening of the cooler was authorized by a standardized departmental policy and the officer did not act in bad faith or solely as pretext for investigation. Accordingly, the court’s denial of the motions to suppress was affirmed.

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: No Exigent Circumstances Existed to Justify Warrantless Entry

The Tenth Circuit Court of Appeals issued its opinion in McInerney v. King on Tuesday, June 30, 2015.

Joan McInerney reportedly pushed her ex-husband’s girlfriend on the Colorado School of Mines campus in July 2009, and Officer Dennis King, a part-time officer with the Colorado School of Mines Police Department, was assigned to investigate the incident. Officer King obtained Ms. McInerney’s address from her ex-husband and went to her house at 7:40 a.m. on Sunday, July 26, 2009, to serve her with a summons for harassment. Upon arriving at her house, he found several windows and doors open and a general state of disarray in the open garage. He called the Jefferson County Sheriff’s Office for backup without knocking or otherwise announcing his presence, and Deputy Brian McLaughlin, an officer with 23 years’ experience, responded. Deputy McLaughlin asked if Officer King had tried to call Ms. McInerney, and Officer King admitted he hadn’t. Deputy McLaughlin decided to perform a welfare check and entered the house. Officer King followed. Both men had guns drawn, despite later admissions that neither thought there was an ongoing emergency. They found Ms. McInerney in her bed, awakened from sleep and partially dressed. She asserted that she was not the victim of a crime, did not need any help, and was outraged by the intrusion. She refused to sign for the summons, which Officer King left on a table near the front door.

Ms. McInerney filed a motion to dismiss the criminal harassment complaint, citing outrageous police conduct. The municipal court heard testimony from both sides and dismissed the complaint with prejudice, concluding there was no need for Officer King to take action and finding a total lack of an observable reasonable basis for the violation of Ms. McInerney’s constitutional rights. In July 2011, Ms. McInerney filed a § 1983 action against both officers, alleging her Fourth Amendment rights were violated when the officers entered her residence.

The district court denied Officer King’s F.R.C.P. 12(b)(6) motion to dismiss, which the court denied, noting the stated justification of an emergency requiring police assistance was inconsistent with the fact that Officer King waited 30 minutes for Deputy McLaughlin’s arrival. Ms. McInerney stipulated to the dismissal of the charges against Deputy McLaughlin in January 2012, and moved for summary judgment on her remaining claims against Officer King. The district court denied the summary judgment motion, noting that while there was no question Deputy McLaughlin’s conduct violated the Fourth Amendment, there was a legitimate question of whether Officer King was justified in following Deputy McLaughlin into the house. Officer King then moved for summary judgment based on qualified immunity, which the district court granted. Ms. McInerney appealed.

On appeal, Ms. McInerney contended the district court failed to view the facts in the light most favorable to her and that the evidence supported a finding that Officer King personally participated in the unlawful entry, his entry was not justified by exigent circumstances, and his entry violated her constitutional rights. Officer King countered that he did not personally participate in Deputy McLaughlin’s welfare check, and that the welfare check was based on reasonable grounds to protect the safety of individuals inside the residence. He also contended his entry was justified to protect Deputy McLaughlin and Ms. McInerney failed to show he violated a clearly established constitutional right.

The Tenth Circuit first evaluated Officer King’s argument that he was entitled to qualified immunity because he simply followed Deputy McLaughlin into the house. The Tenth Circuit rejected Officer King’s explanation, finding it undisputed that Officer King entered Ms. McInerney’s home without a warrant and his actions constituted a Fourth Amendment violation. The Tenth Circuit noted that if it justified every subsequent entry after the first officer’s Fourth Amendment violation, it would destroy the protections afforded by the Amendment.

Next, the Tenth Circuit turned to Officer King’s argument that he needed to assure the safety of Ms. McInerney’s 11-year-old daughter, because Dr. McInerney reported to Officer King that Ms. McInerney had a history of drug and alcohol abuse and the daughter lived with her part-time. The Tenth Circuit noted that Officer King did not mention the daughter or drug and alcohol abuse in Golden Municipal Court or when he filed his Rule 12(b)(6) motion to dismiss, and did not mention these facts until he filed his August 2013 motion to dismiss. The Circuit contrasted several cases where exigent circumstances justified officers’ warrantless entry and found that the facts of the instant case, viewed in the light most favorable to Ms. McInerney, did not justify the warrantless entry. The Tenth Circuit remarked, “if the nonspecific and dated information from Dr. McInerney plus a messy house and open doors and windows when the weather is warm could justify the entry on that morning, it could have justify entry on almost any occasion.” The Tenth Circuit declined to adopt such a lenient view of the Fourth Amendment’s protections.

Finally, the Tenth Circuit evaluated whether the law was clearly established at the time of the officers’ entry, and found that it was. Although it would be impossible to find an identical fact situation, the Tenth Circuit found that the officers should have known their conduct was unconstitutional.

The Tenth Circuit reversed the district court’s grant of summary judgment for Officer King and remanded for further proceedings.

Tenth Circuit: Fourth Amendment Rights are Personal and Cannot be Asserted Vicariously to Benefit Defendant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Paetsch on Wednesday, April 8, 2015.

On Saturday, June 2, 2012, a masked and armed man robbed a Wells Fargo bank in Aurora, Colorado. One of the stacks of money he grabbed contained a GPS tracking device. Seconds after the robber took the money from the teller’s drawer, it began sending a silent signal to the Aurora Police Department, which allowed the police to follow the device’s movement on a computer monitor to within a 60-foot radius. Soon after the robbery, police began dispatching field officers based on the tracking device. Following the signal’s movements, police determined the device was in a car in traffic and was stopped at a traffic signal. Police who arrived on the scene blocked the intersection so that 20 cars that were stopped at the light could not leave.

Because the responding officers did not know the robber’s physical appearance, they called an FBI task force to get a homing beacon that would narrow the range of the tracking device’s alert to 10 feet. Before the FBI agent arrived with the beacon, officers had removed the sole occupants from two of the cars near the back of the 20 because they were behaving suspiciously, including defendant Christian Paetsch. They removed the sole occupant from a third car for tactical reasons. It had been about 30 minutes since the intersection was blocked.

Approximately one hour after the intersection was blocked, the FBI agent arrived with the beacon, but he did not know how to operate it correctly. Nevertheless, it gave a weak signal at Paetsch’s vehicle. Officers then cleared every car of its occupants and did a “secondary search,” looking through car windows. This secondary search revealed a money band in Paetsch’s car. Shortly thereafter a state trooper who knew how to use the beacon arrived and quickly got a strong signal from inside Paetsch’s car. Officers searched Paetsch’s car and found $22,956 cash, two handguns, boxes of ammunition, a mask, a wig, a pair of gloves, an empty air horn package, two fake license plates, and the GPS tracking device.

Paetsch was indicted on two counts: armed bank robbery and brandishing a firearm in relation to a crime of violence. Paetsch moved to suppress statements made to police and the evidence seized from his car, arguing the initial stop was unconstitutional because police lacked individualized suspicion that any person at the intersection had committed a crime, and that the stop violated his Fourth Amendment rights because the intrusion on individuals’ interest outweighed the government’s interest. After a three-day hearing, the district court granted suppression of statements Paetsch made after invoking his right to an attorney but denied the motion to suppress evidence from Paetsch’s car. Paetsch conditionally pleaded guilty, reserving the right to appeal the denial of the suppression order.

On appeal, Paetsch argued the barricade was unreasonable at its inception, unreasonable in its duration, and unreasonable in the means used to carry it out. The Tenth Circuit determined the stop was reasonable at its inception because it was appropriately tailored to catch a fleeing bank robber. Although police lacked individualized suspicion of a particular person, it was reasonable for law enforcement to barricade the intersection since they knew the stolen money was in a car idling at the intersection. The Tenth Circuit further found justification in the stop because police knew an armed bank robber was at the intersection and because the stop was effective in finding the bank robber. And, while the Tenth Circuit sympathized with the 29 innocent people detained before officers developed individualized suspicion of Paetsch, it determined that this intrusion on their liberty interests was reasonable and justified by the circumstances. The Tenth Circuit also declined to allow Paetsch to rely on the intrusion suffered by the 29 innocent car occupants, noting that to do so would “violate the principle that ‘Fourth Amendment rights are personal rights that cannot be asserted vicariously.'”

The Tenth Circuit similarly disagreed that the duration of the detention was unreasonable, finding the officers could only act on the information they had at the time. Because the officers knew the beacon would arrive “soon” and were concerned about the possibility of a high-speed chase should they allow all 20 cars to leave, it was not unreasonable for the officers to wait until the beacon and a suitable user arrived.

The Tenth Circuit affirmed the district court’s denial of Paetsch’s motion to suppress. Chief Judge Briscoe concurred with the result but disagreed about how long it took police to develop individualized suspicion of Paetsch.

Colorado Supreme Court: Totality of Circumstances Instructive in Determining Voluntariness of Consent to Search

The Colorado Supreme Court issued its opinion in People v. Munoz-Gutierrez on Monday, February 9, 2015.

Suppression of Evidence—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing marijuana that the police discovered in a car registered to and driven by defendant. The trial court found that the People did not establish that defendant voluntarily consented to the search of his car. The Supreme Court determined that the trial court applied the wrong standard and held that defendant voluntarily consented to the search when he gave oral consent. Under the totality of the circumstances, the police’s conduct did not overbear defendant’s exercise of free will. Specifically, it was not sufficiently coercive or deceptive to a person with defendant’s characteristics in his circumstances. Accordingly, the Court reversed the trial court’s suppression order and remanded the matter to the trial court.

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

Tenth Circuit: Officers Had Ample Evidence of Defendant’s Presence When Executing Arrest Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Denson on Tuesday, December 30, 2014.

Steven Denson was convicted of armed robbery and served prison time. After being released from prison, though, he did not report to his probation officer as required. Eventually, authorities found his name on a residential Wichita utility account and secured an arrest warrant. Officers used a hand-held Doppler device and other evidence to determine that the residence had one occupant, and, when no one answered the door, forced their way into the residence, where they found Denson and a stash of guns. Denson pled guilty to possession of firearms but reserved the right to appeal the district court’s denial of his Fourth Amendment motion to suppress. He sought reversal from the Tenth Circuit on three grounds. He contended (1) officers entered his home without reason to believe he was present, (2) officers lacked a lawful basis to search his home after arresting him, and (3) officers had no right to seize his guns.

The Tenth Circuit found that the officers had probable cause to infer that Denson was home before entering the residence. Denson had opened a residential utility account in his name on only the one residence; he hadn’t reported any recent earnings, leading officers to suspect he was unemployed; he was hiding from law enforcement, making it unlikely he was out and about; and the house’s electric meter was especially active, leading officers to infer someone in the house was using electricity. Although the Tenth Circuit found the Doppler evidence to verge on an unlawful intrusion into Denson’s privacy, they found ample other evidence  to infer that someone was home when officers executed the arrest warrant.

The Tenth Circuit next addressed Denson’s argument that the search was unlawful. The Tenth Circuit relied on well-settled law to find that the officers were allowed to conduct a “quick and limited search of the premises” in order to ensure their safety. Because the officers knew Denson was a fugitive, had a history of violent crime, was a gang member, and had violent associations, they had ample reason to conduct a cursory search of the residence.

Denson’s final argument was that the officers lacked probable cause to seize the weapons. However, Denson had a prior felony conviction, and he was not allowed to possess the firearms. Addressing his contention that the weapons belonged to his roommate, the Tenth Circuit found that the possession standard is met when a felon has knowledge of and access to the weapons in question. The guns in Denson’s house were not locked and were available in a closet to anyone who wished to enter the closet. The officers were well within their rights to seize the weapons.

The district court’s judgment was affirmed.

Colorado Court of Appeals: Court’s Exclusion of Evidence Not Prejudicial Because Defendant Had Opportunity to Raise Complete Defense

The Colorado Court of Appeals issued its opinion in People v. Brown on Thursday, November 20, 2014.

Murder—Evidence—Hearsay—Residual Exception—Search Warrant.

The victim, defendant’s ex-wife, was murdered in her home in the middle of the night. Defendant was charged and found guilty of her murder.

On appeal, defendant argued that the trial court violated his rights by precluding him from presenting evidence that the police investigation into the case was deficient. Specifically, defendant contended that his cross-examination of the prosecution’s expert about the limitations of DNA testing and evidence of a suspicious vehicle in the area on the night of the murder, both of which were excluded by the court, were relevant to show that the police investigation was deficient. However, any error in these rulings was harmless because defendant was not prevented from presenting a complete defense.

Defendant also argued that the trial court erred by admitting, under the residual exception to the hearsay rule (CRE 807), statements the victim made to her sister, her mother, and two coworkers regarding the couple’s relationship. Defendant contended that the statements lacked particularized guarantees of trustworthiness. The trial court was in the best position to evaluate the proffered testimony of the witnesses and to consider the circumstances under which the declarant made the particular statements. Therefore, the trial court did not abuse its discretion in determining that the statements were sufficiently trustworthy as to satisfy CRE 807. Moreover, the court’s findings were sufficient to satisfy the Colorado Constitution’s Confrontation Clause.

Defendant further argued that the trial court erred by failing to suppress evidence police obtained when they executed the warrant because the search exceeded the scope of the warrant. Specifically, defendant contended that the backpack that defendant placed in the vehicle just before police seized his vehicle should not have been included in the search. There is no dispute that the backpack was “within” the vehicle at the time it was seized; therefore, seizing it was not outside the scope of the warrant. The judgment was affirmed.

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

Colorado Court of Appeals: Warrantless Search of Cell Phone Violated Fourth Amendment

The Colorado Court of Appeals issued its opinion in People v. Omwanda on Thursday, September 25, 2014.

Evidence Suppression of Information on Cell Phone—Theory of Defense Instruction.

Before trial, defendant sought to suppress evidence that police had recovered from his cell phone. At the suppression hearing, an officer testified that he stopped a car carrying six people, including defendant. With the driver’s permission, the officer searched inside the car, where he found electronic scales and a pill bottle containing cocaine. Two passengers said the pill bottle belonged to defendant.

The officer arrested and searched defendant. The search revealed another pill bottle and a cell phone. The second pill bottle contained a white residue. Defendant asked the officer to give the cell phone to another passenger, but the officer told him he would keep it as evidence. The officer read three text messages on the phone. All three indicated cocaine use and purchase.

The officer later applied for, and received, a warrant to search the phone. The warrant application quoted the text messages. The search of the phone pursuant to the warrant revealed additional communications and information indicative of drug dealing.

The trial court denied the motion to suppress because the search was incident to the arrest. The jury acquitted defendant of possession with intent to distribute but convicted him of possession of a controlled substance.

The Court of Appeals agreed with defendant that the initial search of the phone violated the Fourth Amendment as enunciated by the U.S. Supreme Court in Riley v. CaliforniaRiley v. California, ___ U.S. ___, 134 S.Ct. 2473 (2014). In Riley, the Court held “that a warrant is generally required before . . . a search [of information on a cell phone], even when a cell phone is seized incident to arrest.”

The People argued that even if the initial search was unlawful, the police independently discovered the information on the phone pursuant to the search warrant. A court may admit unconstitutionally obtained evidence “if the prosecution can establish that it was also discovered by means independent of the illegality.” The Court reviewed the officer’s warrant application and found probable cause to support the issuance of the warrant. The issue turns on whether the initial search of the three text messages affected the officer’s decision to seek the warrant. This required further factual findings. Accordingly, the case was remanded for further proceedings on this issue.

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