March 23, 2019

Archives for February 21, 2013

In Memoriam: Francis W. Jamison, University of Denver Sturm College of Law Professor Emeritus

FrankJamisonWe were greatly saddened to learn that longtime DU law professor Frank Jamison died recently at age 83. He was admitted to the Colorado Bar in 1956 and was a judge in Jefferson County prior to joining DU.

In addition to teaching Evidence to thousands of DU Law students over his 38 years at DU, he was a co-author of Colorado Evidence Courtroom Manual for many years. He will be remembered for his quick wit, generosity, and service to the legal community.

A celebration of his life will take place at 3:00 pm, Friday, February 22nd at St. Agnes Center at Holy Name Parish, 3290 W. Milan Ave., Englewood, 80110. In lieu of flowers, donations can be sent in his name to The Action Center, 8755 West 14th Ave, Lakewood, CO 80215 or www.theactioncenterco.org.

Tenth Circuit: No Fourth Amendment Violation in Search of Defendant’s Home

The Tenth Circuit published its opinion in United States v. Garcia on Wednesday, February 13, 2013.

A confidential informant told Agent Latin about a quantity of methamphetamine consistent with trafficking in Robert Garcia’s possession. The informant said the methamphetamine could be found in Garcia’s residence and described the residence as a single-wide mobile home without an address but bearing the number 32 on its west end. Latin included this description and a photograph of the residence in the affidavit and application for the search warrant he presented to a state judge. Unfortunately, he mistakenly identified the residence as 1220 Mescalero Street. The state judge issued a warrant to “search forthwith the person or place described in the Affidavit.” Although it commanded police to conduct the search “forthwith,” the search of Garcia’s residence did not occur until nine days after the warrant issued.

The police executed the search against the single-wide trailer bearing the number 32 as depicted in the photograph in Latin’s affidavit, even though that residence was not 1220 Mescalero Street. In the end, officers found approximately 54 grams of methamphetamine, marijuana, pills, around $30,000 in cash, drug paraphernalia, security cameras, ledgers, and other drug-related items inside the home.

Garcia moved to suppress the evidence. The district court denied the motion. Garcia pled guilty to possession with intent to distribute five grams or more of methamphetamine, which allowed him to appeal from the denial of his motion to suppress.

On appeal, Garcia contended the district court should have suppressed evidence obtained from a search of his residence. He argued the warrant was invalid because (1) it was stale and (2) the address on the warrant did not match his residence.

Staleness: The Tenth Circuit found no Fourth Amendment violation because the affidavit’s statements regarding continuous criminal activity situated this case within the case law making the passage of nine days less critical. The delay in the execution of the search warrant did not undermine the probable cause to search Garcia’s home. Even assuming the officers failed to abide the warrant’s instruction to execute it “forthwith,” the failure added almost nothing to the Court’s assessment of the reasonableness of the search.

Proper Premises: Regardless of the error concerning the address, the issuing judge clearly intended for the officers to search the residence described and depicted in the warrant application. There was never any doubt about which residence police should search. The Tenth Circuit held this practical reality outweighed the technical error in the warrant. The description was sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and there was no reasonable probability that another premise might be mistakenly searched.

In sum, the warrant was executed before it became stale and within the time constraints of the federal rules. And, because the warrant adopted the supporting affidavit’s unambiguous description of the residence, the address mismatch is of no consequence.

AFFIRMED.

Tenth Circuit: Unpublished Opinions, 2/20/13

On Wednesday, February 20, 2013, the Tenth Circuit Court of Appeals issued no published opinions and six unpublished opinions.

United States v. Valdovinos

Ciempa v. Jones

Patterson v. Vaughn

Hogan v. Workman

Mohamed v. Napolitano

Small v. Huddleston

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

Tenth Circuit: Unpublished Opinions, 2/19/13

On Tuesday, February 19, 2013, the Tenth Circuit Court of Appeals issued no published opinions and eight unpublished opinions.

United States v. Ramos-Carrillo

Gonzales v. Astrue

Paige v. Donovan

Anchondo v. Dunn

Underwood v. GEO Group

James v. Chavez

United States v. Wilson

Dickson v. Public Service Co.

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

HB 13-1072: Allowing Public Trustees to Purchase Crime Insurance In Lieu of Performance Bonds

On January 11, 2013, Rep. Spencer Swalm and Sen. John Kefalas introduced HB 13-1072 – Concerning the Authority for Counties to Purchase Crime Insurance Coverage for Public Trustees in Lieu of Surety BondsThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law requires public trustees to execute surety bonds covering the faithful execution of their offices. This bill authorizes counties to purchase crime insurance coverage for public trustees in lieu of purchasing surety bonds for these public officials. The bill was approved by the House on February 7 and is assigned to the Local Government Committee in the Senate.

Since this summary, the bill was referred unamended to the consent calendar of the Senate Committee of the Whole.

HB 13-1071: Allowing a Vehicle That Is at Least 32 Years Old To Be a Collector’s Vehicle

On January 11, 2013, Rep. Chris Holbert and Sen. Lois Tochtrop introduced HB 13-1071 – Concerning the Type of Vehicle that Qualifies to Register as a Collector VehicleThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, a motor vehicle qualifies to be registered as a collector’s item if it is of model year 1975 or older or has been grandfathered in. The bill includes vehicles that are 32 years old, but if the vehicle is being registered where an emissions test is required, then the vehicle must pass an emissions test. On February 7, the Finance Committee approved the bill and sent it to the Appropriations Committee.

HB 13-1068: Allowing Unannounced Inspections of Medicaid Providers Consistent with Federal Law

On January 9, 2013, Rep. Dave Young and Sen. Ellen Roberts introduced HB 13-1068 – Concerning On-site Inspections of Medicaid ProvidersThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, state law requires the department of health care policy and financing (department) to provide advance notice to a medicaid provider of a review or audit of the provider.

Federal law requires that the department require a provider to permit the department or its contractors and the federal medicaid agency or its agent to conduct on-site inspections of provider locations, unannounced and without advance notice to the provider, for purposes of ensuring the accuracy of records and compliance with federal and state medicaid requirements. The bill amends the statute to allow for unannounced inspections of medicaid providers. The bill is assigned to the Public Health Care & Human Services Committee and is scheduled for committee review on Tuesday, February 19 at 1:30 p.m.

Since this summary, the bill was amended by the House Public Health Care & Human Services Committee and sent for Second Reading by the House Committee of the Whole.

HB 13-1065: Allowing Professional Persons Licensed in Other States to Provide Mental Health Services

On January 9, 2013, Rep. Amy Stephens and Sen. Nancy Todd introduced HB 13-1065 – Concerning the Definition of Professional Persons under the Mental Health StatutesThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As amended in the House, the bill amends the definition of “professional person,” for purposes of providing care and treatment to persons with a mental illness, to include a person who is providing medical or clinical services at a treatment facility in Colorado that is operated by the United States and who is licensed to practice medicine in another state or is a psychologist certified to practice in another state. The bill was approved by the House on February 4 and is assigned to the Health and Human Services Committee in the Senate.

HB 13-1064: Allowing Certain Legal Notices To Be Published Online

On January 9, 2013, Rep. Tim Dore introduced HB 13-1064 – Concerning the On-line Publication by a Local Government of Information that is Currently Required to be Published in a NewspaperThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Currently, a board of county commissioners is required to publish certain legal notices, advertisements, and fiscal information in specified newspapers. The bill allows these items to be published on a web site maintained by the county rather than publish them in a newspaper. Assigned to the Local Government Committee.

Since this summary, the bill was postponed indefinitely by the House Local Government Committee.