October 19, 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 Court of Appeals: Law of the Case Doctrine Does Not Prohibit Officer from Requesting Warrant for Previously Illegally Obtained Evidence

The Colorado Court of Appeals issued its opinion in People v. George on Thursday, June 1, 2017.

Sexual Contact—Minor—Search—Suppression—Warrant—Independent Source Doctrine—Law of the Case Doctrine—Joinder—CRE 404(b)—C.R.S. § 16-10-301(3).

George was arrested on charges related to sexual encounters with underage girls A.R. and G.D. Following George’s arrest and inability to post bond, he was evicted from his apartment. The landlord had George’s car towed from the premises to an impound lot. The lead investigator obtained the towing company’s consent to search the car and instead of seeking a warrant, obtained the company’s consent to examine the GPS device in the vehicle. Data obtained from a forensic examination of the GPS device showed that George’s movements were generally consistent with the victims’ testimony about their meetings with him. George moved to suppress, challenging the car search and the examination of the GPS device. The court suppressed evidence obtained from examination of the device. Rather than appealing the suppression order, the prosecution directed the investigator to seek a search warrant for the GPS device from a different magistrate. When applying for the warrant, the investigator did not specifically refer to data obtained from examination of the GPS device nor disclose the suppression ruling. The warrant was issued and the GPS device was reexamined. George again moved to suppress. The court denied the motion to suppress based on the independent source doctrine. The court found that that the decision to seek the warrant had not been based on the fruits of the initial unlawful search and information from the search had not been presented to the magistrate as a basis for seeking the warrant. A jury convicted George of multiple offenses arising from his sexual contact with two young girls.

On appeal, the Attorney General argued that the data obtained from the initial warrantless search of George’s GPS device in his vehicle should not have been suppressed because the search was conducted in good faith. Because the Attorney General did not challenge the trial court’s consent ruling based on a question of law, the validity of the initial search was not properly before the court of appeals.

George argued on appeal that the trial court should have suppressed data obtained from the second examination of the GPS device because the first suppression order was the law of the case and an unchallenged order that applied the exclusionary rule. Here, had the towing company not asserted ownership of the GPS device and given its consent to examination, the investigator would have sought a warrant to search the device. Therefore, the investigator did not later seek a warrant based on the fruits of the warrantless search. Additionally, the investigator did not specifically refer to any data obtained from examination of the GPS device in the warrant application. Thus, the warrant at issue in the second suppression hearing raised a different issue—independent source—that was not and could not have been raised at the first suppression hearing, and the law of the case doctrine does not apply.

George also argued that the trial court erred in joining the cases involving A.R. and G.D. over his objection. Here, evidence related to A.R. and G.D. was sufficiently similar to establish a common plan or scheme under CRE 404(b) and C.R.S. § 16-10-301(3). Therefore, evidence from each case would be admissible in the other. Because George did not show prejudice, the trial court properly joined the trials involving A.R. and G.D.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Each Animal Subject to Neglect or Abuse Constitutes Separate Cruelty Count

The Colorado Court of Appeals issued its opinion in People v. Harris on Thursday, November 3, 2016.

After a neighbor called the Humane Society of the Pikes Peak Region to report a dead horse near his property line, Sergeant Stephanie Garcia and a fellow officer investigated Harris’s property and discovered several emaciated animals. Sergeant Garcia sought and received a search warrant (the horse warrant) for Harris’s ranch to investigate animal cruelty. While the animal protection agents executed the search warrant with accompanying law enforcement officers, they found a recently deceased donkey who appeared severely underfed, and also discovered several malnourished dogs. They sought and received another warrant for the dogs, since the horse warrant was limited in scope to livestock. Harris was charged with fifteen counts of cruelty to animals (second offense) and two counts of needlessly killing an animal.

About two weeks later, the neighbor reported that Harris had dragged three dead horses onto his property. The neighbor later observed Harris and her brother attempting to drag the horses back onto her own property. Sergeant Garcia contacted Harris and entered her property with permission. She observed two more dead horses. Harris was charged in a separate case with aggravated cruelty to animals for needlessly killing the five horses. The cases were consolidated for trial.

Several witnesses testified at trial, including an expert in veterinary medicine who was present during the search. All of the prosecution’s witnesses testified that the animals appeared severely malnourished and there was no evidence of food on the property. Harris’s theory of defense was that the water had a high sulfate level and the animals were malnourished due to the high sulfate. Harris insisted she was feeding her horses and justified the lack of food by saying she procured hay from a neighbor on a daily basis. The jury convicted Harris on all counts. In a bifurcated proceeding, the court found that the fifteen animal cruelty convictions counted as a second offense due to Harris’s 2007 convictions for misdemeanor animal cruelty. She was sentenced to concurrent 10-year sentences on all counts in the first case and concurrent three-year counts on the aggravated cruelty counts in the second case. She appealed.

In district court, Harris moved to suppress all evidence from the search on the grounds that animal protection agents are not statutorily authorized to obtain livestock warrants and both warrants lacked probable cause. The court of appeals agreed that the animal protection agent exceeded her authority in obtaining the warrants. Under the statute, only government agents are authorized to investigate livestock abuse. Because the animal protection agent was employed by a private nonprofit corporation, she was not authorized to apply for a livestock warrant. The court, however, found that the statutory deficiency did not rise to the level of a constitutional deficiency. To be valid under the United States and Colorado Constitutions, a warrant must have been issued by a neutral magistrate, those seeking the warrant must have demonstrated probable cause, and the warrant must describe with particularity the things to be seized. In this case, the warrants at issue met all three requirements. Therefore, the exclusionary rule did not apply because there was no constitutional violation.

Harris next contended that the animal cruelty was one continuous act, so she should have been charged with only one count of animal cruelty. The court noted that this argument turned on whether the statutory language contemplated animals as property or as sentient beings capable of feeling pain. The court evaluated the history of animal cruelty laws and found that there was a shift from considering animals as property to recognizing them as sentient beings. The court then analyzed the statutory language and found that because the language considered “an animal” or “any animal,” charging each act of cruelty separately was permissible.

Harris raised several other points of error, which the court addressed and rejected in turn. The court of appeals affirmed the convictions and sentences.

Tenth Circuit: Court Reluctant to Infer Illegal Activity from Disturbing Legal Activities

The Tenth Circuit Court of Appeals issued its opinion in United States v. Edwards on Tuesday, December 29, 2015.

During a sting operation, Officer Chris Cornwell discovered that Paul Edwards was using a file sharing network to exchange sexually suggestive photos of a young girl. In addition to exchanging hundreds of photos of the girl, Edwards replied to some user comments in a way that suggested he was sexually attracted to the child. None of the photos posted by Edwards were illegal child pornography; rather, they were legal child erotica. Nevertheless, Officer Cornwell prepared an affidavit for a search warrant based on his descriptions of several of the images and noting that people who collect child pornography also often collect child erotica. On the basis of the information in the affidavit, the magistrate issued a search warrant, resulting in the discovery of thousands of images of child pornography at Edwards’ residence.

A grand jury indicted Edwards on one count of possession of child pornography and five counts of receipt of child pornography. Edwards moved to suppress the evidence found in his home, claiming the search warrant was not supported by probable cause. The district court acknowledged that the warrant presented a close question, but denied Edwards’ motion, concluding that because law enforcement explained that those who collect child erotica often also collect child pornography, there was no error in the magistrate’s issuance of the warrant. The district court further found that even if the warrant were issued erroneously, the good faith exception to the exclusionary rule applied.

Edwards entered a conditional guilty plea to the first count and the district court dismissed the remaining counts on the government’s motion. Edwards was sentenced to 63 months’ imprisonment followed by 7 years’ supervised release. He appealed his conviction and sentence, arguing his motion to suppress should have been granted.

The Tenth Circuit first evaluated whether the magistrate erred in issuing the warrant, and found that based on the totality of the circumstances, the affidavit failed to establish sufficient probable cause. The Tenth Circuit noted that the investigating officers never alleged that any of the material shared by Edwards was illegal child pornography and in fact the officers agreed that the material was legal child erotica. The Tenth Circuit next evaluated the investigating officer’s assertion that people who collect child pornography also frequently collect child erotica, and found that the officer’s assertion did not necessarily indicate the reverse—that people who collect child erotica also collect child pornography. The Tenth Circuit remarked that courts are reluctant to infer illegal activity from legal activity, regardless of whether the legal activity is disturbing. Officer Cornwell’s affidavit failed to show a causal connection between people who legally collect child erotica and those who illegally collect child pornography, and the district court erred in assuming that because the inverse was true, Officer Cornwell’s affidavit was sufficient. The Tenth Circuit ruled that, in absence of any evidence that Edwards collected child pornography, the affidavit failed to establish probable cause by averring that people who possess child pornography also collect child erotica and participate in online forums. The Tenth Circuit found that the pedophiliac tendencies of a person are insufficient to establish probable cause for possession of child pornography.

However, the Tenth Circuit agreed with the district court that the exclusionary rule’s good faith exception applied. Although the magistrate should have been on notice that the affidavit did not support probable cause, the officers who executed the warrant were reasonable in their reliance on the magistrate’s determinations. Edwards argued that the officers’ reliance on the warrant was unreasonable because (1) the affidavit contained false information that the officer knew to be false, (2) the issuing magistrate wholly abandoned the judicial role, (3) the affidavit in support of the warrant was so lacking indicia of probable cause as to render belief in its existence entirely unreasonable, and (4) the warrant was so facially deficient the executing officer could not believe it was valid. The Tenth Circuit quickly disposed of Edwards’ first, second, and fourth arguments, finding no judicial misconduct nor facial deficiencies to the warrant. As to the third argument, the Tenth Circuit found reliance on the warrant was not unreasonable in this case. Although the link between Edwards’ postings and possession of child pornography was “logically fallacious,” the Tenth Circuit held it was not so unsound as to render the officers’ reliance on the warrant objectively unreasonable. The Tenth Circuit noted that both the magistrate and district overlooked the logical inconsistency of Officer Cornwell’s argument, and it was not unreasonable for him to have also overlooked that inconsistency.

The Tenth Circuit affirmed the district court’s denial of Edwards’ motion to suppress based on the good-faith exception to the exclusionary rule.

Tenth Circuit: Exclusionary Rule Applies to Search when Warrant Issued Illegally

The Tenth Circuit Court of Appeals issued its opinion in United States v. Krueger on Tuesday, November 10, 2015.

In 2013, Homeland Security Investigations (HSI) Agent Rick Moore learned that child pornography was being distributed over the internet by Zachary Krueger, a Kansas resident. He obtained a warrant from a U.S. District Court magistrate for the District of Kansas to search Krueger’s home for items such as computers and cell phones that may be used to display child pornography. When Agent Moore attempted to execute the warrant, Krueger’s roommate told him that Krueger was in Oklahoma and had taken his computer and cell phone with him. Agent Moore contacted another HSI agent in Oklahoma, who located Krueger. Agent Moore then went to a different Kansas magistrate and obtained a warrant to search the residence in Oklahoma, as well as Krueger’s vehicle, which was parked outside the Oklahoma residence. Agent Moore transmitted the second warrant (Warrant 2) to the Oklahoma agent immediately after it was issued, and a team of agents went to the Oklahoma residence to execute the warrant.

Shortly after entering the residence, one of the agents noticed that Warrant 2 had been issued by a magistrate in Kansas, rather than in the Western District of Oklahoma, and asked another agent if that was acceptable. After speaking with Agent Moore and an AUSA in Kansas, the agents decided to refrain from searching the computer until they had consent. A few weeks later, a Kansas police officer visited Krueger and obtained his written consent to search the computer. As a result, Krueger was charged with distribution of child pornography.

Krueger then filed a pretrial motion to suppress the evidence obtained in the search in Oklahoma as well as the statements he made to law enforcement. Krueger argued suppression was necessary because Warrant 2 violated Fed. R. Crim. P. 41, which only allows magistrate judges to issue warrants to persons and property located within their districts. Krueger argued Warrant 2 was illegal from the outset, necessitating suppression because the search was warrantless and unconstitutional. Krueger also argued that even if Warrant 2 was not void at the outset, he was prejudiced by the Rule 41 violation in the sense that he would not have cooperated with law enforcement had he known that the warrant was illegal. The district court granted Krueger’s suppression motion after a hearing. The government appealed.

On appeal, the government conceded that Warrant 2 was invalid because the magistrate judge in Kansas had no authority to issue a warrant concerning property in Oklahoma. However, the government urged the Tenth Circuit to reverse the suppression order, arguing the district court applied the wrong legal standard in determining Krueger had suffered prejudice as a result of the Rule 41 violation. The Tenth Circuit disagreed. The Tenth Circuit declined to consider an issue of first impression in the circuit—whether an out-of-district warrant issued by a magistrate who lacks authority rises to the level of a Fourth Amendment violation—because the warrant’s constitutionality would not affect the outcome of the appeal. The Tenth Circuit noted that the government abandoned all of its arguments except that Krueger failed to establish prejudice, and found that Krueger did indeed establish prejudice. Because suppression is the appropriate remedy for purposes of the exclusionary rule seeking to deter law enforcement from obtaining illegal warrants, the Tenth Circuit affirmed the district court.

Colorado Court of Appeals: Suppression of DNA Evidence Not Necessary Despite Warrantless DNA Collections

The Colorado Court of Appeals issued its opinion in People v. Lancaster on Thursday, July 16, 2015.

Sexual Assault—Motion to Suppress—DNA Evidence—Rape Shield Statute—Prior False Reports.

Lancaster was convicted of numerous counts of kidnapping, sexual assault, menacing, and third-degree assault. He was sentenced to an indeterminate prison term of twenty-five years to life on the sexual assault counts.

On appeal, Lancaster contended that the trial court erred in denying his motion to suppress DNA evidence that he asserted was developed as a result of violations of his federal and state constitutional rights. After Lancaster was arrested on other charges, the police took a buccal swab of Lancaster’s mouth, which resulted in a match with the DNA profile of the man who had sexually assaulted the victim in this case. Based on this initial match, the police obtained an order to collect another DNA sample from Lancaster, which was also a match with the DNA profile of the man who had sexually assaulted the victim in this case. Because neither of the subsequent crimes for which Lancaster was arrested were felonies, the police were not authorized to take the samples. However, the police’s violation of the law was not willful, and the government’s interest in the DNA sample was not outweighed by Lancaster’s privacy interests. Therefore, the trial court did not err in denying Lancaster’s motion to suppress the DNA profile that was allegedly developed as a result of the prior warrantless collections of DNA evidence from him.

Lancaster also contended that the trial court abused its discretion and violated his constitutional right to present a defense when it denied without an evidentiary hearing his motion to allow him to introduce evidence that the victim had a history of making false allegations of sexual assault. The rape shield statute requires a defendant to make an offer of proofthat the alleged victim made multiple reports of prior or subsequent sexual assaults that were false. Here, although the victim made two prior allegations of sexual assault against other individuals, Lancaster’s offer of proof that the second charge was dismissed was insufficient to demonstrate the falsity of the victim’s second report. Accordingly, Lancaster’s offer of proof demonstrated, at most, only one prior false report of sexual assault. The offer was thus insufficient to warrant a hearing under the rape shield statute. Further, because Lancaster denied that he knew the victim, he was not denied the right to present a complete defense because this evidence was contrary to his theory of the case.

Finally, Lancaster contended that the trial court misapprehended the sentencing range for sexual assault and erroneously sentenced him outside the presumptive range. Because the record was not sufficiently developed for the Court of Appeals to determine this issue, the sentences on the sexual assault counts were vacated and the case was remanded for resentencing on those counts.

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

Tenth Circuit: District Court has Wide Discretion Regarding Whether to Hold Franks Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Herrera on Monday, April 6, 2015.

Jose Herrera was suspected of drug trafficking, and an undercover officer sought a warrant to attach a GPS device to his car. In the warrant application, the officer attested that she and a confidential informant repeatedly purchased methamphetamine from Mr. Herrera, that Mr. Herrera had told them he was going to take a trip and would be unavailable, and that he was gathering funds. The officer further attested that in her experience these facts suggested Mr. Herrera was gathering funds for a meeting with an out-of-town supplier. A magistrate approved the warrant and officers attached the GPS device to Mr. Herrera’s vehicle, which showed Mr. Herrera making a quick trip to LA and heading quickly back to Colorado. Officers pulled the car over and found drugs in a hidden compartment in the vehicle.

Mr. Herrera moved to suppress the evidence from the search, arguing the warrant was unlawfully issued. The district court agreed, and the government appealed the suppression order. On appeal, the government argued that the district court erred by conducting a Franks hearing without requiring the defendant to make some showing that the officer’s affidavit contains a material reckless misstatement or omission. The Tenth Circuit disagreed, finding that the district court has broad discretion to conduct a hearing regardless of whether the defendant first makes a showing. Finding no abuse of discretion, the Tenth Circuit affirmed the district court’s allowance of a Franks hearing.

Next, the government argued the district erred in applying both aspects of the Franks test. At the first step, the district court found the officer’s affidavit recklessly created the impression Mr. Herrera had used his vehicle for drug smuggling since 2009, when in fact he did not obtain the vehicle until 2011. The district court also suggested the informant lacked more recent knowledge of the vehicle’s use in drug smuggling. However, the Tenth Circuit noted that the affidavit did not say anywhere that the vehicle dated to 2009, only that the informant knew from “past experience” that Mr. Herrera used the vehicle in drug smuggling. The Tenth Circuit further found the attesting officer seemed to have solid grounds for believing the informant. The Tenth Circuit failed to see any basis for the district court’s finding of recklessness.

Turning to the second part of the Franks test, the Tenth Circuit found the district court erroneously disregarded virtually everything the confidential informant said instead of striking the reckless statements and considering whether the affidavit could still stand. Although the confidential informant was an “unsavory character,” his information was reliable in many instances and it was erroneous for the district court to disregard his information.

The Tenth Circuit upheld the district court’s allowance of a Franks hearing but reversed the order suppressing evidence due to the district court’s misapplication of both parts of the Franks test.