August 18, 2017

Tenth Circuit: Officers Executing Warrant Acted in Objectively Reasonable Reliance

The Tenth Circuit Court of Appeals issued its opinion in United States v. Russian on Tuesday, February 21, 2017.

The Tenth Circuit Court of Appeals had to determine if the good faith exception to the exclusionary rule was properly applied in the case where police searched two cell phones belonging to the appellant after his arrest without first obtaining a valid search warrant. At trial, Mr. Russian moved to have evidence obtained from the phones suppressed for lack of particularity. The district court denied the motion, and sentenced Mr. Russian to 137 months’ incarceration. Mr. Russian appealed, claiming that the district court erred in denying his motion to suppress the phone evidence, and claiming that the 137-month sentence was above the maximum permitted by statute.

The case stems from an incident beginning in Missouri, where police received a 911 call concerning a man matching Mr. Russian’s description threatening two women with a machete and handgun. When police arrived, Russian fled, beginning a high-speed chase into Kansas. Upon Russian’s arrest, Deputy Wilson searched Russian, and found a red and black phone in his possession. Deputy Wilson then found a second phone in Russian’s vehicle, both of which he entered into evidence. Deputy Wilson later applied for a warrant to search Russian’s residence, as well as both the contents of both phones already in police possession, The state district court warrant authorized the search of cell phones that could be used to commit the crimes, and described the locations to be searched, but did not authorize the search of the phones already in police possession.

The Fourth Amendment provides that no citizen will be subjected to unreasonable search and seizure. However, the court added, that even these protections are subject to the harmless error rule, where a search may be upheld if the error is so unimportant and insignificant that they may be deemed harmless beyond a reasonable doubt, not requiring the automatic reversal of the conviction. The court stated that a search warrant must, in addition to probable cause, describe with particularity the place to be searched, and the persons or things to be seized. In this case, the court said that there is little doubt that the search warrant was invalid for lack of particularity, as it did not identify the phones or the data on those phones to be searched.

Although the warrant was invalid, the court still upheld the denial of Mr. Russian’s motion to suppress under the good faith exception. The good faith exception applies to an otherwise invalid search warrant where the officer’s reliance on the warrant was objectively reasonable under the circumstances, and asks if a reasonably well-trained officer would have known the search was illegal despite the warrant’s authorization. However, the court noted that the government is not entitled to the exception when the warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officer cannot reasonably presume it to be valid.” In analyzing Deputy Wilson’s search, the court determined that because his affidavit specifically described the phones, the warrant referenced the affidavit, and the exclusion of the evidence would not serve the purpose of the exclusionary rule (to prevent police misconduct) the good faith exception applied.

As to Russian’s second claim, the court agreed that district court erred in relying on a guidelines range that improperly took into account a fifteen year old felony conviction that was too old to be included in the sentencing range. The court also agreed with Russian that the court erred in imposing a 76-month sentence, as it is above the 60-month maximum imposed by statute.

The Tenth Circuit affirmed Russian’s convictions, but remanded for resentencing for three of the counts based on the improperly calculated guidelines range.

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

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

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

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

The trial court’s suppression order was reversed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Officer’s Observation of Used Marijuana Pipe Sufficient to Provide Probable Cause for Search of Car

The Colorado Court of Appeals issued its opinion in People v. Verigan on Thursday, September 25, 2015.

Warrantless Search of a Vehicle—Probable Cause—Motion to Suppress Evidence—Miranda Warning—Voluntary Statements.

After Verigan’s vehicle was pulled over for a routine traffic stop, in which Verigan was a passenger in the front seat, officers found methamphetamine and drug paraphernalia in the vehicle. She was found guilty of possession of two grams or less of a controlled substance and possession of drug paraphernalia.

On appeal, Verigan argued that the evidence obtained from the search of her vehicle should have been suppressed because Officer Mitchell’s observation of a used marijuana pipe and an unlabeled pill bottle, without more, did not give the officers probable cause to search the vehicle. The officer’s observation of a used marijuana pipe containing a burned substance that the officer could reasonably infer to be marijuana supported a reasonable belief that the vehicle could have contained marijuana, an illegal drug at the time of the search in 2011. Therefore, there was probable cause for the search of Verigan’s car, and the trial court properly denied her motion to suppress the evidence discovered during that search.

Verigan further argued that the trial court erred by denying her motion to suppress the statements she made to police at the scene and later at the station. Based on the totality of the circumstances, a reasonable person in Verigan’s situation would have had reason to believe that her freedom of action had been curtailed to the degree associated with a formal arrest and that she was in custody for Miranda purposes even though she had not been given a Miranda warning. Accordingly, the trial court erred by failing to suppress the statements she made to the officers before the Miranda advisement was given. However, because all of the improperly admitted statements that Verigan made in the pre-advisement interrogation were voluntary, and she repeated those statements in her properly admitted post-advisement statement, the improper admission of the pre-advisement statements was harmless beyond a reasonable doubt. The judgment was affirmed.

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

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.

Colorado Supreme Court: Scope of Search Defined by Warrant, Not by Reasonable Expectation of Privacy

The Colorado Supreme Court issued its opinion in People v. Webb on Monday, May 19, 2014.

Search Pursuant to Warrant.

In this case, the Supreme Court considered whether the search of a purse is within the scope of a search warrant. The police searched Webb’s purse when they executed a search warrant for her house, which they had obtained after identifying indicia that Webb’s adult son, A.W., was using methamphetamine in the house.

The Court held that because the purse was found in a room to which A.W. had access, and because the purse was a container in which A.W. reasonably could have hidden contraband, the search of Webb’s purse was within the scope of the search warrant. The Court therefore reversed the trial court’s order suppressing the evidence that the police found in Webb’s purse and remanded the case to that court for proceedings consistent with this opinion.

Summary and full case available here.

Tenth Circuit: Fourth Amendment Does Not Require Abandonment of Common Sense

The Tenth Circuit Court of Appeals issued its opinion in United States v. Romero on Tuesday, April 15, 2014.

Defendant Romero was convicted by a jury of assaulting and killing Naayaitch Friday. He appealed the district court’s refusal to suppress evidence found after searches of the car he drove and his bedroom, claiming that the warrant to search the car was based on an affidavit lacking a substantial basis for probable cause, and that his stepfather did not have authority to consent to the search of his bedroom.

The Tenth Circuit noted that the supporting affidavit for the search of the car contained ample reason to believe a search would uncover evidence, stating “[t]he Fourth Amendment does not require the abandonment of common sense. The officers would have been derelict in their duties had they not sought to search the [car].” The Tenth Circuit also affirmed the trial court’s allowance of evidence recovered from the search of Defendant’s bedroom, finding that under Tenth Circuit precedent, when a child lives with his or her parent, there is a presumption that the parent retains control for most purposes over the property. Since Defendant lived with his parents and there was nothing to rebut the presumption of parental control of the property, his stepfather’s consent to the search of his bedroom was sufficient.

The judgment of the trial court was affirmed.

Tenth Circuit: Good-Faith Exception to Exclusionary Rule Applied to Search of Defendant’s Home and Waiver of His Miranda Rights Was Valid

The Tenth Circuit Court of Appeals published its opinion in United States v. Augustine on Wednesday, February 19, 2014.

Defendant Dennis Augustine was convicted on two counts of conspiracy to distribute methamphetamine. Prior to trial, he filed two separate motions to suppress evidence. The first motion was to quash a warrant to search Defendant’s residence and to suppress evidence found in that search which led directly to his arrest. The second motion was to suppress Defendant’s statements to law enforcement officials after his arrest. The district court denied both motions. It denied the motion to quash and suppress evidence found in the search of Defendant’s residence by applying the good-faith exception to the exclusionary rule. The district court denied the motion to suppress Defendant’s statements based on its factual findings regarding the circumstances of Defendant’s interrogation. After the subsequent trial, the jury found Defendant guilty on both counts of conspiracy.

On appeal, the Tenth Circuit considered the denial of both motions, starting with the motion relating to the search of Defendant’s residence. Under the good-faith exception to the exclusionary rule, if a warrant is not supported by probable cause, the evidence seized pursuant to the warrant need not be suppressed if the executing officer acted with an objective good-faith belief that the warrant was properly issued by a neutral magistrate. Good faith may exist when a minimal nexus between the place to be searched and the suspected criminal activity is established. In this case, the court disagreed with Defendant that the affidavit was so lacking in indicia of probable cause and was so devoid of factual support as to prevent application of the good-faith exception to the exclusionary rule. Indeed, the affidavit readily satisfied the minimal nexus requirement. The Tenth Circuit held that the affidavit described circumstances that would warrant a person of reasonable caution in the belief that drugs, drug records, or drug paraphernalia would be found in Defendant’s residence and established a minimal nexus between Defendant’s residence and the drug-related items being sought in the warrant. Since a minimal nexus existed, the good-faith exception to the exclusionary rule was properly applied by the district court.

The court then turned to Defendant’s appeal of the denial of his motion to suppress his statements to law enforcement officers. Defendant’s argument on this point was based on the claim that his waiver of his Miranda rights was not knowingly, intentionally, and voluntarily made. Defendant claimed on appeal that his ability to properly waive his Miranda rights was impaired because he was under the influence of controlled substances during the interview, despite having explicitly told the officers during the interview he was not currently under the influence of drugs or alcohol. Defendant also claimed he was further impaired by his need for his prescription drugs. Defendant thus argued his illicit drug use combined with his need for his prescription drugs rendered his waiver of his Miranda rights invalid.

Based on the totality of the circumstances, and after considering a video recording of Defendant’s interrogation and the testimonies of the interrogating officers, the district court found that Defendant appeared sober in the recording of the interview and that any alleged presence of drugs in Defendant’s system did not render Defendant unaware of the nature of his rights and the consequences of his decision to speak with the police. The district court also found that while defendant may have been more comfortable with his medication, the absence of his medication did not cause Defendant to proceed involuntarily or in ignorance of the consequences of his actions and statements. The district court therefore denied Defendant’s motion to suppress.

Nothing in the record persuaded the Tenth Circuit that the district court’s factual finding that Defendant was in control of his faculties and his conduct throughout the interview was clearly erroneous. After reviewing the video recording of the interview and other materials in the record, the court agreed with the district court’s determination that Defendant was not so impaired that his waiver of his Miranda rights was invalid.

AFFIRMED.

Colorado Supreme Court: Facts and Circumstances Created Reasonable Suspicion so Evidence from Vehicle Search Admissible

The Colorado Supreme Court issued its opinion in People v. Crum on Tuesday, November 12, 2013.

Vehicular Search Incident to Arrest—Reasonable Articulable Suspicion—Reasonable Searches and Seizures—Suppression of Evidence.

The Supreme Court held that where a defendant is seen retrieving controlled substances packaged in a manner consistent with the intent to distribute from a vehicle parked late at night in an area known for high volumes of drug activity, and where the defendant attempts to conceal the substances, the facts and circumstances give rise to a reasonable articulable suspicion that the vehicle might contain more evidence of possession of a controlled substance. Under such circumstances, police officers may search the vehicle incident to the defendant’s arrest for possession of a controlled substance. The Court therefore reversed the order of the trial court suppressing evidence discovered during the search.

Summary and full case available here.

Tenth Circuit: Search Proper Under Leon’s Good Faith Exception

The Tenth Circuit Court of Appeals published its opinion in United States v. Ponce on Wednesday, October 30, 2013.

Julio Ponce appealed the Oklahoma district court’s denial of his motion to suppress evidence obtained pursuant to a search warrant that Ponce claimed issued without probable cause. A confidential informant (CI) told Tulsa Police officer William Mackenzie that Ponce was “selling methamphetamine from his residence,” and that Ponce also had “firearms, scales and baggies used to weigh and package” the drugs and a “large amount of U.S. currency within his residence.” The CI told Mackenzie Ponce’s address and an alias he used. Mackenzie surveilled Ponce’s home and observed drug activity. He also walked a dog outside Ponce’s garage and the dog alerted to drugs. After Mackenzie submitted an affidavit containing the above information, and that an anonymous tipster had called with similar information about Ponce, a magistrate judge issued a search warrant, the execution of which led officers to discover firearms, scales, baggies, and large quantities of cash and methamphetamine at Ponce’s residence.

At trial, Ponce moved to suppress all the evidence from his home. The district court denied the motion on the basis that probable cause did exist or, alternately, that United States v. Leon’s good-faith exception applied. Ponce pleaded guilty conditionally and appealed, arguing that the dog sniff was an illegal warrantless “search” under the Fourth Amendment. The Tenth Circuit chose to decide the appeal without deciding the Fourth Amendment issue or any of Ponce’s other lack of probable cause arguments.

The court held that the officers executing the search acted with an objective good-faith belief that the warrant was properly issued by a neutral magistrate under Leon and affirmed the district court.

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

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

Suppression of Evidence—Consent to Search.

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

Summary and full case available here.

Tenth Circuit: Wiretap and GPS Pinging Evidence Properly Admitted in Drug Conspiracy Case

The Tenth Circuit published its opinion in United States v. Barajas  on Monday, March 4, 2013.

Defendant-Appellant Samuel Barajas was convicted of drug charges and using a communication facility, a cellular telephone, in committing, causing, and facilitating the drug conspiracy. Barajas appealed the denial of his motion to suppress all evidence obtained from the wiretap surveillance and GPS pinging of certain cell phones.

The wiretaps were issued under California law, which conforms to federal law, so the Tenth Circuit applied federal standards to determine the evidence’s admissibility. After reviewing the affidavits used to obtain the wiretaps, the court found them sufficient to show the wiretaps were necessary. The government had explained why traditional investigative techniques were ineffective and why other techniques would prove ineffective if tried. The court affirmed the district court’s denial of the defendant’s motion to suppress the wiretaps.

Barajas also argued there was no probable cause in the affidavits to support the search for GPS data via pinging. The affiant had not requested GPS pinging in the affidavits, although the proposed orders contained the pinging. The Tenth Circuit assumed without deciding that pinging is a search, while pointing out the Sixth Circuit has held pinging is not a search under the Fourth Amendment. Because the affidavit did not contain an explanation of how Barajas’s location would reveal information about the conspiracy, the court found there may not have been probable cause. Even if there was not, however, the good-faith exception applied so the court affirmed the GPS data evidence’s admission.