August 18, 2017

Tenth Circuit: Contents of Vehicle Search Suppressed Where Search Illegal at Inception

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez on February 27, 2017.

On June 21, 2013, Angela Lopez was driving eastbound in Kansas. Kansas Highway Patrol Trooper Robert Krause pulled the vehicle over for going 79 miles per hour in a 65-mile-per-hour zone. Adrienne Lopez was in the passenger seat. Throughout the encounter, Adrienne, rather than Angela, did almost all of the talking, which Krause said could be a sign of nervousness. Krause asked Angela for her license, insurance, and car-rental paperwork. Krause then looked in the back seat of the car. Upon doing so, Adrienne said, “Don’t look back there, it’s a mess.” Krause asked about their travel plans. Adrienne told him that they were going form California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” Angela provided Krause a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license, rather than her actual license.

Krause asked both occupants if they had drugs in the car, to which both replied no. Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. Krause warned Angela for speeding and turned to walk away. He immediately turned back and asked Angela if she would answer a few more questions, which she consented to. Krause asked where they were heading. Adrienne answered that she did not know the exact city because her phone did not have reception.

Krause then asked the Defendants if he could search the vehicle. They refused. Krause then detained them until a drug dog could be brought to the vehicle, which took about twenty minutes. The dog alerted Krause to the front seat where Adrienne’s purse was located. Adrienne admitted having some marijuana in her purse, which Krause found and then searched the rest of the car. He found four packages in a cooler in the back seat of methamphetamine. The packages totaled 1,766 grams of methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress the evidence of methamphetamine found in the car. The two were convicted of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. The Defendants appealed.

The Tenth Circuit first established that a traffic stop must be justified at its inception and that the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. A stop may be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring.

Here, the Defendants did not consent to the extension of the stop by Krause beyond its initial purpose. Therefore, the Tenth Circuit addressed whether Krause had reasonable suspicion that the Defendants were engaged in criminal activity, which the government bears the burden of proving.

The government put forth three suspicious factors that justified detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy, even though it was not; and (3) Defendant’s travel plans were implausible.

The Tenth Circuit first addressed Adrienne’s nervousness. It stated that it consistently assigns that factor limited significance because innocent people can be nervous in wide varieties. In order to contribute to reasonable suspicion, the Tenth Circuit held that there must be extreme nervousness, which the district court did not find, and Krause did not so testify.

Next, the Tenth Circuit held that Adrienne’s comments about the backseat gave little support for reasonable suspicion. It stated that in hindsight, the comments seemed revealing. But at the time, there was nothing incriminating in view on the backseat. Further, nothing stopped Krause from taking a closer look through the back window.

Finally, the Tenth Circuit addressed the government’s argument that the Defendants’ travel plans were implausible. The government pointed to the fact that the two only rented the car for two days, which was not enough time to drive to their destination and return. The Tenth Circuit held that the travel plans might have been overly ambitions, but they could reasonably have been done. First, the Tenth Circuit pointed to the fact that they were driving through the night, which was why two drivers were necessary. Next, because they were rescuing Adrienne’s sister from an abusive boyfriend, it was reasonable to assume they would not stay at the destination very long. Finally, because it was understandable that the sister needed to move to protect herself from her abusive boyfriend, it was reasonable that the Defendants did not need a more precise location until they were closer to the destination. Further, the Tenth Circuit stated that it has generally been reluctant to give weight to the reasonable-suspicion analysis to unusual travel purposes, except in extreme cases.

The Tenth Circuit held that the circumstances did not suffice to justify the continued detention of the Defendants. Therefore, the Tenth Circuit held that the evidence seized from the car must be suppressed.

The Tenth Circuit then quickly dispatched with the governments two remaining arguments. First, the government argued that the evidence was admissible against Adrienne because the discovery of the drugs was not the fruit of her unlawful detention. The Tenth Circuit held that because Krause seized the marijuana from Adrienne’s purse, and the detention of Adrienne’s personal property led to the search of the car and discovery of the methamphetamine, Adrienne did have standing to challenge the admission into evidence of the drugs.

Second, the government argued that the detention was lawful as to Angela because there was probable cause to arrest her for driving while not in possession of her driver’s license. The Tenth Circuit held that there was no probable cause to arrest Angela. First, the documents Angela gave Krause would likely be a “driver’s license” under the Kansas statute. Further, even if not a “driver’s license,” Krause learned from the dispatcher that she had a valid driver’s license in California, and therefore had enough information to know that she could not be convicted for the offense under the statute. The Tenth Circuit held that an officer does not have probable cause to arrest a person for a crime he know she could not be convicted of.

In sum, the Tenth Circuit reversed the Defendants’ convictions and remanded to the district court for proceedings consistent with its opinion.

Tenth Circuit: Drug Dog Search Illegal Where Warning Given for Speeding and Consent to Search Refused

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lopez on February 27, 2017.

On June 21, 2013, Angela Lopez was driving eastbound in Kansas. Kansas Highway Patrol Trooper Robert Krause pulled the vehicle over for going 79 milers per hour in a 65-mile-per-hour zone. Adrienne Lopez was in the passenger seat. Throughout the encounter, Adrienne, rather than Angela, did almost all of the talking, which Krause said could be a sign of nervousness. Krause asked Angela for her license, insurance, and car-rental paperwork. Krause then looked in the back seat of the car. Upon doing so, Adrienne said, “Don’t look back there, it’s a mess.” Krause asked about their travel plans. Adrienne told him that they were going from California and headed to “Kansas City or Nebraska” to rescue her sister “because she was getting beat up by her boyfriend.” Angela provided Krause a receipt from the California Department of Motor Vehicles that was issued to her when she reported losing her license, rather than her actual license.

Krause asked both occupants if they had drugs in the car, to which both replied no. Krause relayed Angela’s information to the dispatcher and learned that she had a valid driver’s license and no criminal history. Krause warned Angela for speeding and turned to walk away. He immediately turned back and asked Angela if she would answer a few more questions, which she consented to. Krause asked where they were heading. Adrienne answered that she did not know the exact city because her phone did not have reception.

Krause then asked the Defendants if he could search the vehicle. They refused. Krause then detained them until a drug dog could be brought to the vehicle, which took about twenty minutes. The dog alerted Krause to the front seat where Adrienne’s purse was located. Adrienne admitted having some marijuana in her purse, which Krause found and then searched the rest of the car. He found four packages in a cooler in the back seat of methamphetamine. The packages totaled 1,766 grams of methamphetamine.

The United States District Court for the District of Kansas denied Defendants’ motions to suppress the evidence of methamphetamine found in the car. The two were convicted of possessing more than 500 grams of methamphetamine with intent to distribute, and of conspiracy to do the same. The Defendants appealed.

The Tenth Circuit first established that a traffic stop must be justified at its inception and that the officer’s actions during the stop must be reasonably related in scope to the circumstances that initially justified it. A stop may be extended beyond that scope if the person stopped consents to the extension or if the police have a reasonable suspicion that other illegal activity has occurred or is occurring.

Here, the Defendants did not consent to the extension of the stop by Krause beyond its initial purpose. Therefore, the Tenth Circuit addressed whether Krause had reasonable suspicion that the Defendants were engaged in criminal activity, which the government bears the burden of proving.

The government put forth three suspicious factors that justified detention: (1) Adrienne was nervous; (2) Adrienne asked Krause not to look at the backseat because it was messy, even though it was not; and (3) Defendant’s travel plans were implausible.

The Tenth Circuit first addressed Adrienne’s nervousness. It stated that it consistently assigns that factor limited significance because innocent people can be nervous in wide varieties. In order to contribute to reasonable suspicion, the Tenth Circuit held that there must be extreme nervousness, which the district court did not find, and Krause did not so testify.

Next, the Tenth Circuit held that Adrienne’s comments about the backseat gave little support for reasonable suspicion. It stated that in hindsight, the comments seemed revealing. But at the time, there was nothing incriminating in view on the backseat. Further, nothing stopped Krause from taking a closer look through the back window.

Finally, the Tenth Circuit addressed the government’s argument that the Defendants’ travel plans were implausible. The government pointed to the fact that the two only rented the car for two days, which was not enough time to drive to their destination and return. The Tenth Circuit held that the travel plans might have been overly ambitions, but they could reasonably have been done. First, the Tenth Circuit pointed to the fact that they were driving through the night, which was why two drivers were necessary. Next, because they were rescuing Adrienne’s sister from an abusive boyfriend, it was reasonable to assume they would not stay at the destination very long. Finally, because it was understandable that the sister needed to move to protect herself from her abusive boyfriend, it was reasonable that the Defendants did not need a more precise location until they were closer to the destination. Further, the Tenth Circuit stated that it has generally been reluctant to give weight to the reasonable-suspicion analysis to unusual travel purposes, except in extreme cases.

The Tenth Circuit held that the circumstances did not suffice to justify the continued detention of the Defendants. Therefore, the Tenth Circuit held that the evidence seized from the car must be suppressed.

The Tenth Circuit then quickly dispatched with the governments two remaining arguments. First, the government argued that the evidence was admissible against Adrienne because the discovery of the drugs was not the fruit of her unlawful detention. The Tenth Circuit held that because Krause seized the marijuana from Adrienne’s purse, and the detention of Adrienne’s personal property led to the search of the car and discovery of the methamphetamine, Adrienne did have standing to challenge the admission into evidence of the drugs.

Second, the government argued that the detention was lawful as to Angela because there was probable cause to arrest her for driving while not in possession of her driver’s license. The Tenth Circuit held that there was no probable cause to arrest Angela. First, the documents Angela gave Krause would likely be a “driver’s license” under the Kansas statute. Further, even if not a “driver’s license,” Krause learned from the dispatcher that she had a valid driver’s license in California, and therefore had enough information to know that she could not be convicted for the offense under the statute. The Tenth Circuit held that an officer does not have probable cause to arrest a person for a crime he know she could not be convicted of.

In sum, the Tenth Circuit reversed the Defendants’ convictions and remanded to the district court for proceedings consistent with its opinion.

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.