April 30, 2017

Colorado Court of Appeals: Challenge to Sentence Moot when Court Affirmed on Evidentiary Complaints

The Colorado Court of Appeals issued its opinion in People v. Valdez on Thursday, April 6, 2017.

Murder—Robbery—DNA Evidence—Collateral Estoppel—Expungement—Constitutionality—Katie’s Law—Surveillance Camera—Evidence—Jury.

A jury convicted Valdez of first degree murder after deliberation and several other charges arising from the robbery of a jewelry store during which one of the two hooded robbers shot and killed the owner. Valdez did not testify but defended based on misidentification. Valdez was sentenced to life without the possibility of parole on the first degree murder count, was consecutively sentenced to 32 years on the aggravated robbery count, and received concurrent sentences on the other counts.

On appeal, Valdez argued that the match of his DNA to the DNA evidence from the crime scene was derived from a sample unconstitutionally collected when he was arrested on an unrelated charge in a traffic case. Valdez’s DNA sample was taken during his arrest for aggravated driving under restraint—habitual offender. Although Valdez pleaded guilty to a misdemeanor in that traffic case and was eligible to apply for DNA expungement under C.R.S. § 16-23-105 (part of Katie’s Law), he failed to either move to suppress the DNA sample before pleading guilty or seek expungement based on his misdemeanor plea. The constitutionality of Katie’s Law was not determined in the traffic case. Because Katie’s Law, as applied to Valdez, is constitutional, the trial court did not err in denying his motion to suppress.

Valdez also argued that the district court erred in admitting a surveillance camera video of the robbery in progress depicting the owner’s dying moments because it was unfairly prejudicial, and further erred by improperly giving the jurors unfettered access to replay all of the videos during deliberations. The recording of the robbery in progress showed the actual crime. Therefore, it was not unfairly prejudicial, and the trial court did not abuse its discretion by admitting the surveillance video from the overhead camera. Additionally, the videos were played for the jurors only after their request, and the court clerk supervised the playback. Therefore, the trial court did not abuse its discretion in declining to limit the number of times the jury could view the videos or in refusing to impose other restrictions on the jury’s consideration of them.

Having affirmed Valdez’s convictions on all charges, including first degree murder, Valdez’s argument that it was error to impose a lesser sentence consecutively rather than concurrently is moot.

The judgment and sentence were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Consent to Search Truck Was Valid so Suppression Unnecessary

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, September 26, 2016.

Fourth Amendment—Traffic Stops—Reasonableness of Investigatory Detention—Voluntariness of Consent to Search.

The Supreme Court reversed the trial court’s order suppressing drugs found in defendant’s truck and defendant’s incriminating statements made to police after they discovered the drugs. Defendant was pulled over for a traffic violation and detained after he consented to a police search of his truck. The Supreme Court concluded that this investigatory detention, which resulted from defendant’s authorization of the search, was reasonable. After considering the totality of the circumstances, the Court also concluded that defendant’s consent to the search was voluntary and the search was lawful. Accordingly, the Court determined that no prior illegality tainted defendant’s incriminating statements. Therefore, neither the drugs nor the statements should have been suppressed.

Summary provided 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.

Colorado Court of Appeals: Peremptory Challenges Can Only Be Used on Newly Empaneled Jurors After Waiver

The Colorado Court of Appeals issued its opinion in People v. Terhorst on Thursday, August 13, 2015.

Peremptory Challenge—Waiver—Motion to Suppress—Evidence—Exigent Circumstances—Underage Drinking.

Defendant held a birthday party for his 17-year-old son at their large multistory home in Lakewood. Hundreds of teenagers attended the party, alcohol was present, and some of the teenagers were intoxicated. Police responded to the party after a neighbor reported that “underage kids” were drinking alcohol at defendant’s home. A jury found defendant guilty of four counts of contributing to the delinquency of a minor.

On appeal, defendant argued that he was improperly denied a fifth peremptory challenge during jury selection. Defendant was entitled to five peremptory challenges pursuant to CRS § 16-10-104. Defendant’s counsel used peremptory challenges to strike two potential jurors and waived the third and fourth peremptory challenges. Under Crim.P. 24(d)(2), after having previously waived the use of a peremptory challenge, counsel can only make peremptory challenges “as to jurors subsequently called into the jury box.” Because no jurors were called into the jury box after defendant’s counsel’s waiver of the fourth peremptory challenge, defense counsel lost his ability to use any additional peremptory challenges.

Defendant also argued that the trial court erred in denying his motion to suppress evidence obtained after the warrantless entry and search of his home. Exigent circumstances can justify a warrantless search where there is a risk of immediate destruction of evidence. An underage drinking party attended by hundreds of suspected teenagers creates an exigent circumstance because there is a real threat that the alcohol, which is the evidence of underage drinking, will be destroyed. Accordingly, the police officers’ entry into defendant’s home was legally justified, and the trial court did not err in admitting the evidence derived from that entry.

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

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: Anonymous Tip Was Reasonable Basis for Warrantless Search of Probationer’s House

The Tenth Circuit Court of Appeals issued its opinion in Leatherwood v. Welker on Tuesday, July 8, 2014.

Leatherwood was serving probation when his former wife called his probation officer, Denise Welker, to inform her that Leatherwood had raped his current girlfriend, who had filed a restraining order against Leatherwood. The former wife also indicated that Leatherwood might have weapons in his possession, specifically in his truck, in a safe, and on a shelf in his garage. Welker also received an anonymous email tip that Leatherwood had sent emails of a sexual nature to his girlfriend and that he possessed alcohol and sexual materials and devices. Possession of firearms and sexually explicit material was prohibited under the terms of his probation.

Welker met with other corrections officers and obtained permission to conduct a warrantless search of Leatherwood’s home. Firearms were found in the search. Leatherwood initiated litigation, seeking declaratory and monetary relief under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. Defendants moved for summary judgment on qualified immunity grounds, which was denied. Defendants appealed the denial of summary judgment.

The Tenth Circuit reversed, noting that defendants had ample reason for conducting the warrantless search, given the phone call from the former wife and the anonymous email. The Tenth Circuit has allowed  searches of probationers based on anonymous or unverified tips many times previously and found that the search was reasonable and the defendants were entitled to qualified immunity.

Tenth Circuit: Traffic Stop and Search Did Not Violate Fourth Amendment

The Tenth Circuit Court of Appeals published its opinion in United States v. Harmon on Tuesday, January 21, 2014.

Mr. Harmon, the appellant in this case, was driving a car across New Mexico with drugs in his spare tire. After weaving within his lane and crossing the fog line, Officer Lucero decided to stop the car on suspicion of violating a New Mexico statute that requires a driver to stay in his or her lane. During the traffic stop, the officer discovered the drugs, and Mr. Harmon was arrested and charged with possession with intent to distribute 500 grams or more of cocaine and possession with intent to distribute 50 kilograms of marijuana.

He moved to suppress the evidence before trial, but the district court denied that motion. On appeal, the Tenth Circuit was asked to decide, among other things, whether the stop was reasonable under the Fourth Amendment.

On appeal, Mr. Harmon made the following arguments: (1) that Officer Lucero lacked sufficient reasonable suspicion to make the initial traffic stop; (2) that the scope of the search exceeded the initial justification for the stop; (3) that his motion to reopen ought to have been granted in light of Officer Lucero’s behavior in another case the Officer was involved in; and (4) that he received ineffective assistance of counsel in entering into his plea agreement.

First, the Tenth Circuit agreed with the district court that Officer Lucero had reasonable suspicion to stop the vehicle on suspicion of impairment under New Mexico law. A traffic stop is a seizure for purposes of Fourth Amendment analysis, and the “reasonable suspicion” standard from Terry v. Ohio applies. An investigatory stop is justified at its inception if the specific and articulable facts and rational inferences drawn from those facts give rise to a reasonable suspicion a person has or is committing a crime. The court looks to the totality of circumstances to determine whether reasonable suspicion exists.

The Tenth Circuit held that Officer Lucero had reasonable suspicion that Mr. Harmon violated the New Mexico statute of driving while impaired when the tires of Mr. Harmon’s car crossed the white fog line that separates the right lane of the interstate from the shoulder. The statute states in part that “a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” Under these facts, Officer Lucero could have had a reasonable suspicion of impairment.

Mr. Harmon also argued that Officer Lucero’s investigatory stop exceeded the scope of the initial justification, thereby violating the Fourth Amendment and entitling him to suppression of the drugs discovered in the car. Not only must the initial stop be justified, but the scope of the resulting detention must remain reasonably related to the initial justification. Once the officer has satisfied his initial reasonable suspicions, unless the officer obtains a new and independent basis for suspecting the detained individual of criminal activity, his investigation must end. However, counsel conceded during oral argument that the search was consensual.

Mr. Harmon also contended that the district court improperly denied his motion to reopen and reconsider the previous denial of the motion to suppress. In that motion, he also claimed that evidence regarding Officer Lucero’s omission in a report in an unrelated case constituted impeachment material that should have been disclosed prior to the suppression hearing. The Tenth Circuit found this argument unavailing for several reasons. First, Officer Lucero did not violate the Fourth Amendment in the other case. Second, there was no obligation that the report be exhaustive. Third, law enforcement may at times have legitimate reasons to keep certain information confidential. The court concluded that the district court did not abuse its discretion in deciding that the evidence from the other case did not possess impeachment value and was unlikely to change the outcome of the suppression hearing.

The court rejected Mr. Harmon’s argument that he received ineffective assistance of counsel.

AFFIRMED.

Tenth Circuit: Seizure of Gun Did Not Justify Suppression of Evidence

The Tenth Circuit Court of Appeals published its opinion in United States v. Gordon on Monday, January 27, 2014.

On June 5, 2011, Brandi Thaxton called 911 to report an incident of domestic violence which had occurred two days earlier with her boyfriend Shawn Gordon, who had outstanding warrants for his arrest. Thaxton said she and Gordon had been arguing when Gordon grabbed a samurai sword and swung it at her. When officers arrived, they found weapons, including a gun and swords, which they seized.

Gordon was charged with being a felon in possession of a firearm. He moved to suppress the evidence found during the warrantless search of his home, most specifically the shotgun. The district court denied the motion. After the motion was denied, Gordon pled guilty but reserved the right to appeal from the denial of his motion to suppress.

The Fourth Amendment prohibits unreasonable searches and seizures. A search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of exigent circumstances. One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.

Such an exigency existed in this case. When police arrived, Thaxton was too frightened to leave the basement. She told the officers she was in fear for her life. There were weapons throughout the house in addition to the swords and gun. Further, temporary seizure of the gun was permissible to stabilize the situation and eliminate the risk of immediate harm.  Gordon was improperly deprived of his property for only a few minutes−the elapsed time between locking the house and discovering Gordon was a convicted felon−and while he was legitimately in custody. The seizure of the gun was a de minimis intrusion on Gordon’s rights and cannot justify suppression of the shotgun as evidence.

AFFIRMED.

Tenth Circuit: Denial of Motion to Suppress Affirmed Due to Inevitable Discovery Doctrine

The Tenth Circuit Court of Appeals published its opinion in United States v. Christy on Friday, January 3, 2013.

After bringing a 16-year-old girl, K.Y., he had met online and exchanged sexual messages with from California back to New Mexico, Edward Christy was charged with one count of transportation with intent to engage in criminal sexual activity, and three counts of possession of matter containing visual depictions of minors engaged in sexually explicit conduct.

He filed a motion to suppress all evidence obtained as a result of the warrantless search of his house, including his statements to the detective and all evidence obtained pursuant to the search warrants. The FBI contacted the Bernalillo County Sheriff’s Office (“BCSO”) and told them what they had found. As a result, BCSO deputies Littlefield and McKinney were dispatched to Christy’s residence to conduct a welfare check on K.Y. The district court found that the deputies violated the Fourth Amendment when they entered Christy’s house without a warrant, and granted the motion to suppress. The government then filed a motion to reconsider. After reconsideration, the district court then denied Christy’s motion to suppress, on the grounds of inevitable discovery.

In rejecting Christy’s first argument on appeal, the Tenth Circuit reaffirmed that inevitable discovery requires only that the lawful means of discovery be “independent of the constitutional violation,” and concluded that a second investigation is not required. In this case, Officer Carvo had sufficient probable cause to obtain a warrant based on the information he had before the BCSO deputies searched Christy’s residence.

The court also rejected Christy’s argument that the district court misapplied the four Souza factors in finding the evidence would have been inevitably discovered. It held that Officer Carvo would have obtained a search warrant and the evidence would have been discovered legally. The fact that he had not taken preliminary steps to obtain a warrant did not defeat inevitable discovery because such preliminary steps are but one factor. The court affirmed.

Colorado Supreme Court: Evidence Should Not Be Suppressed where Officer Entered Defendant’s Curtilage in Concern for Officer Safety

The Colorado Supreme Court issued its opinion in People v. Brunsting on Monday, July 1, 2013.

Criminal Law—Fourth Amendment—Exigent Circumstances—Safety of Officers as Justification for Warrantless Search—Search of a Curtilage—Probable Cause.

The Supreme Court considered the exigent circumstances exception to the Fourth Amendment’s warrant requirement as it pertains to a search of a residence’s curtilage motivated by concern for officer safety. The Court held that officer safety concerns fall within the exigent circumstances exception when: (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable. Here,

The deputy sheriff’s initial entry into defendant’s cartilage was justified by the exigent circumstances exception. The court of appeals did not consider conduct by law enforcement in response to observations made after officer safety concerns caused the first deputy to enter the curtilage. Accordingly, the judgment was reversed and the case was remanded to the court of appeals to consider the remainder of the issues raised on appeal concerning the conduct by law enforcement that occurred after the first deputy crossed into the defendant’s curtilage, as well as all other outstanding issues.

Summary and full case available here.