June 24, 2019

Archives for October 2, 2012

C.R.C.P. 120.1, “Order Authorizing Expedited Sale Pursuant to Statute,” Amended Effective September 20, 2012

On Tuesday, October 2, 2012, the Colorado Supreme Court released changes to Colorado Rule of Civil Procedure 120.1, effective September 20, 2012. The changes detail time frames in which expedited hearings must be set pursuant to section 38-38-903, C.R.S. Requirements for personal service are also detailed.

The amendments to C.R.C.P. 120.1 were adopted by the court September 20, 2012, effective immediately.

Click here to review the redline of the changes to C.R.C.P. 120.1, outlined as Rule Change 2012(13).

Tenth Circuit: Report of Domestic Argument By Itself Is Not Per Se Exigent Circumstances Justifying Warrantless Arrest Within Home

The Tenth Circuit Court of Appeals published its opinion in Storey v. Taylor on Monday, October 1, 2012.

Michael Storey brought civil rights claims against police officers after they arrested him at his home during an investigation of a report of a loud domestic argument. Although Officer Taylor disputed it, viewed in the light most favorable to Storey, it appeared Taylor arrested Storey after he refused to step outside his home. The district court granted summary judgment to the defendants except for one claim that resulted in a hung jury. Storey appealed the granting of summary judgment on his wrongful arrest and retaliatory arrest claims against Taylor, who claimed qualified immunity.

Storey argued his arrest violated the Fourth Amendment because he was arrested without a warrant and no exigent circumstances existed. Unlike a warrantless search, a valid warrantless seizure requires both exigent circumstances and probable cause. The Tenth Circuit held Taylor had no probable cause to arrest Storey for failure to obey the order to exit his home because that order was not lawful in the absence of exigent circumstances. The court found that given the circumstances present here, no exigency existed. The officers heard no arguing when they arrived, they saw nothing to indicate violence, Storey said his wife had left, and the officers observed her return home while they were there. The court differentiated several cases where there was credible evidence leading officers to believe physical abuse had occurred or a potential for violence existed. The court also rejected Taylor’s argument that he was justified in arresting Storey because of the community-caretaking exception to the Fourth Amendment. There was no evidence that Taylor’s actions were necessary to protect anyone. Summary judgment was reversed.

Regarding Storey’s retaliatory arrest claim, the Tenth Circuit remanded because the district court had found the arrest lawful. Because the arrest was unlawful, summary judgment was inappropriate if “a reasonable jury could conclude that Taylor’s retaliatory motive was a but-for cause of Storey’s arrest.”

 

Colorado Supreme Court: In Interlocutory Appeal, Application of Exclusionary Rule Deemed Inappropriate; Evidence Should Not Have Been Suppressed

The Colorado Supreme Court issued its opinion in People v. Guthrie on Monday, October 1, 2012.

Criminal Law—Fourth Amendment—Suppression of Evidence—Inventory Search Subsequent to a Summary Contempt Conviction.

In this interlocutory appeal, the Supreme Court considered whether the trial court erred in applying the exclusionary rule to suppress evidence of an illegal narcotic discovered during a routine inventory search of defendant’s personal effects. The search was performed after a judge of the El Paso County Court, in a previous proceeding, ordered a deputy sheriff to jail her for direct contempt of court. The district court used suppression as an ad hoc remedy for the due process violation it deemed the judge to have committed when conducting the contempt proceeding.

The Court held that no violation of the Fourth Amendment occurred here. The inventory search the police carried out resulted directly from the county court’s order to the deputy sheriff, based on a finding of criminal contempt of court, to jail defendant. Appeal of the summary contempt conviction, which might or might not result in reversal, would be the proper recourse for the county court’s alleged due process violation. Suppressing evidence of the illegal narcotic discovered as a result of the valid inventory search would not be an appropriate remedy even if the county court erred in convicting defendant of direct contempt of court. Accordingly, the district court’s suppression order was reversed and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Supreme Court: Attorney Incompetence Exception to Invited Error Doctrine Not Applicable to Strategic Defense Moves, Only to Inadvertent Mistakes or Oversights

The Colorado Supreme Court issued its opinion in People v. Gross on Monday, October 1, 2012.

Invited Error Doctrine—Attorney Incompetence—Exception—Review of Defense—Tendered Instructions.

The Supreme Court held that the invited error doctrine precludes a defendant from appealing a jury instruction tendered by his or her own counsel. The attorney incompetence exception to the invited error doctrine, which was enunciated in People v. Stewart, 55 P.3d 107, 119 (Colo. 2002), does not apply to deliberate, strategic acts of defense counsel, but rather to inadvertent errors or oversights. The Court also found that, although the trial court should have instructed the jury on self-defense with respect to the crime of extreme indifference murder, the omission of this instruction did not amount to plain error in this case.

Summary and full case available here.

http://www.cobar.org/opinions/opinionlist.cfm?casedate=10/1/2012&courtid=2

Colorado Supreme Court: Announcement Sheet, Week of October 1, 2012

On Monday, October 1, 2012, the Colorado Supreme Court released two published opinions.

Published

People v. Guthrie

People v. Gross

The summaries for these cases are forthcoming, courtesy of The Colorado Lawyer. The case announcement sheet is available here.

http://www.cobar.org/opinions/opinionlist.cfm?casedate=10/1/2012&courtid=2

Tenth Circuit: Unpublished Opinions, 10/1/12

On Monday, October 1, 2012, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Mithcell v. Astrue

Vaquero-Cordero v. Holder

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection