June 26, 2019

Archives for January 2014

Colorado Court of Appeals: Announcement Sheet, 1/30/14

On Thursday, January 30, 2014, the Colorado Court of Appeals issued five published opinions and 29 unpublished opinions.

People v. Conyac

Top Rail Ranch Estates v. Walker

Walker Development v. Top Rail Ranch Estates

Taylor Morrison of Colorado v. Bemas Construction

Rose L. Watson Revocable Trust v. BP America Production

Summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Tenth Circuit: Issue Preclusion Does Not Apply in Bankruptcy Court to a Final Determination in District Court Where Party Waived Issue

The Tenth Circuit Court of Appeals published its opinion in In re Zwanziger on Tuesday, January 28, 2014.

James Hamilton and Richard Kus sued Wolfgang Zwanziger for fraud and violations of Oklahoma’s wage laws. A jury found Zwanziger liable and awarded Hamilton and Kus a combined sum of $573,000. Zwanziger appealed.

On appeal, the Tenth Circuit affirmed the jury’s verdict on liability but reversed on damages. Hamilton and Kus had failed to include damages for emotional distress in their final pretrial order, even though they listed such damages in their complaint. Thus, the Tenth Circuit concluded that the district court erred in instructing the jury to consider emotional distress damages. So the Tenth Circuit remanded to the district court to recalculate damages.

But before the district court could recalculate damages, Zwanziger declared bankruptcy. Kus and William Clark, as trustee of Hamilton’s estate, (since Hamilton had also declared bankruptcy), then filed a complaint in bankruptcy court to determine how much of Zwanziger’s liability was not dischargeable. After reviewing both sides’ damages case, the bankruptcy court awarded Clark and Kus a combined sum of $181,300 in nondischargeable damages, $50,000 of which was for emotional distress. Zwanziger appealed to the Bankruptcy Appellate Panel (BAP), arguing that res judicata precluded the bankruptcy court from including damages for emotional distress. The BAP reversed. Clark and Kus appealed the BAP’s decision.

In this appeal, the Tenth Circuit considered a novel question: Does issue preclusion apply in bankruptcy court to a final determination in district court that a party waived an issue? The court concluded issue preclusion does not apply to the waiver finding here. In this case, issue preclusion does not apply because a finding that an issue of fact or law is waived is not a decision on the merits. Waiver as a general matter is a procedural determination that governs only the case in which it is made.

Therefore, the court REVERSED the judgment of the Bankruptcy Appellate Panel and REMANDED for the bankruptcy court to REINSTATE its order.

Tenth Circuit: Disparity in Contribution Limits Among Candidates for Same Office Violated Equal Protection of Contributors

The Tenth Circuit Court of Appeals published its opinion in Riddle v. Hickenlooper on Thursday, January 23, 2014.

In 2010, three individuals ran for the Colorado House of Representatives, House District 61: Kathleen Curry, Roger Wilson, and Luke Korkowski. Curry was a write-in candidate, Wilson was the Democratic nominee, and Korkowski was the Republican nominee. Under Colorado law, individual contributions to Curry were capped at $200, and individual contributions to each of her opponents were capped at $400. Contributors to Curry’s campaign (along with others) sued state officials under 42 U.S.C. § 1983, claiming violation of the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. The district court rejected the claims and granted summary judgment to the state officials.

Amendment 27 of the state constitution limits campaign contributions to state office candidates from single contributors to $200 for the primary and $200 for the general election. In 2004, the legislature removed time limits as to when a candidate could accept and spend contributions when a primary is involved. Because Republican and Democratic candidates must run in a primary to get on the ballot even if unopposed, but minor party, unaffiliated, or write-in candidates are only required to run in a primary when multiple candidates seek the nomination, the Secretary of State interprets the amendment and statute to allow candidates with a primary to accept $400 and those without to accept only $200.

The plaintiffs made an as applied argument to the statute and challenged the disparity rather than the amount of the limit. The Tenth Circuit focused on the contributors, not the candidates, in finding that contributors to all three candidates were similarly situated. It then applied the intermediate level of scrutiny the U.S. Supreme Court applied in the First Amendment context of contribution limits — whether the limits are closely drawn to a sufficiently important governmental interest.

The court found that the defendant’s asserted interest of anticorruption was not advanced by the statute so it was not closely drawn. It held that the statutory classification violates the right to equal protection for individuals wishing to contribute to write-ins, unaffiliated candidates, and minor-party candidates when each candidate runs unopposed for the nomination. The court reversed and remanded for summary judgment to be awarded to the plaintiffs.

Tenth Circuit: Bankruptcy 11 U.S.C. § 363(m) Mootness Does not Apply to Purely Statutory Claim for Money Damages

The Tenth Circuit Court of Appeals published its opinion in In re C.W. Mining Co. on Wednesday, January 22, 2014.

These appeals arise from a Chapter 7 asset sale for the liquidating bankruptcy estate of C.W. Mining Co., a former coal mining operation in Emery County, Utah. The four appellants did business with C.W. Mining before its involuntary bankruptcy. They now claim various assets that the bankruptcy trustee, Kenneth A. Rushton, sold to an unrelated entity, Rhino Energy LLC. Under 11 U.S.C. § 363(m), the court cannot grant the appellants any relief that would affect the validity of Rushton’s sale to Rhino. The district court dismissed the appeals as moot because of this statute.

The Tenth Circuit affirmed the dismissal of all the appeals with the exception of Charles Reynolds’s appeal because he raised a statutory claim for relief that did not affect the validity of the sale. Reynolds and his family lived in the mine’s scale house. Reynolds opposed Rushton’s action to evict Reynolds and return the house to the bankruptcy estate by arguing he was the rightful owner of the house and counterclaiming under the Utah Occupying Claimant Statute (UOCS).

On appeal, Reynolds sought damages under UOCS of the value of improvements to the house, not undoing the sale to Rhino. Section 363(m) mootness does not apply to this claim, nor does equitable mootness because this is a purely statutory claim for money damages. The court reversed and remanded the dismissal of Reynolds’s claim.

HB 14-1033: Enacting the “Regulatory Reform Act of 2014”

On January 8, 2014, Rep. Libby Szabo and Sen. Lois Tochtrop introduced HB 14-1033 – Concerning State Agency Requirements for the Enforcement of New Regulatory Requirements on Small Businesses, and, in Connection Therewith, Enacting the “Regulatory Reform Act of 2014.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

This bill enacts the “Regulatory Reform Act of 2014”. The bill makes legislative declarations about the importance of businesses with 100 or fewer employees to the Colorado economy and the difficulty these types of businesses have in complying with new administrative rules that are not known or understood by these businesses. The bill defines “new rule” as any regulatory requirement in existence for less than one year prior to its enforcement by a state agency, and “minor violation” as any violation of a new rule by a business of 100 or fewer employees where the violation is minor in nature, involving record-keeping and issues that do not affect the life safety of the public or workers. The bill provides exceptions from the definition of “minor violation” for certain types of rules.

For the first minor violation of a new rule by a business of 100 or fewer employees, the bill requires a state agency to issue a written warning and engage the business in educational outreach as to the methods of complying with the new rule. The bill requires state agencies to make information on new rules available and allows this information to be made available in electronic form. The bill is assigned to the State, Veterans, & Military Affairs Committee.

HB 14-1035: Clarifying that Restitution is Part of Deferred Judgment and Can Be Collected by the Court

On January 8, 2014, Rep. Bob Gardner and Sen. Mike Johnston introduced HB 14-1035 – Concerning Collection of Restitution Ordered Pursuant to a Deferred Judgment. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that an order of restitution that is part of a deferred judgment can be collected by the court after the deferred judgment is dismissed until the judgment is satisfied. The bill has passed out of the Judiciary Committee—with amendments—and has been referred to the floor for consideration on 2nd Reading.

Since this summary, the bill passed 2nd Reading in the House with amendments and passed 3rd Reading.

HB 14-1032: Establishing Procedures for Providing Defense Counsel to Juvenile Offenders

On January 8, 2014, Rep. Daniel Kagan and Sen. Lucia Guzman introduced HB 14-1032 – Concerning the Provision of Defense Counsel to Juvenile Offenders. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Juvenile Defense Attorney Interim Committee

A promise to appear in court served upon a juvenile and the juvenile’s parent, guardian, or legal custodian shall state, in clear language that is understandable and appropriate to a juvenile:

  • That the juvenile has the right to have counsel;
  • That counsel will be appointed for the juvenile if the juvenile or the juvenile’s parent, guardian, or legal custodian lacks adequate resources to retain counsel or refuses to retain counsel for the juvenile;
  • That, if the juvenile chooses to retain his or her own counsel, then the juvenile and the juvenile’s parent, guardian, or legal custodian are advised to choose counsel that is experienced in representing juveniles in the juvenile justice system; and
  • The contact information for the local office of the state public defender (OSPD).

When a juvenile is placed in a detention facility, a temporary holding facility, or a shelter facility designated by the court, the screening team shall promptly so notify the court, the district attorney, and the local office of the OSPD.

A juvenile who is detained shall be represented at the detention hearing by counsel. If the juvenile has not retained his or her own counsel, he or she shall be represented by the OSPD or, in the case of a conflict, by the office of alternate defense counsel (OADC). This representation shall continue unless:

  • The juvenile retains his or her own counsel; or
  • The juvenile is charged with an offense for which the juvenile may waive counsel and the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel.

The scheduled time for a detention hearing must allow a juvenile’s defense counsel sufficient time to consult with the juvenile before the detention hearing. This consultation may be performed by secure electronic means if the conditions under which the electronic consultation is held allow the consultation to be confidential. The law enforcement agency that arrested the juvenile shall promptly provide to the court and to defense counsel the affidavit supporting probable cause for the arrest and the arrest report, if the arrest report is available, and the screening team shall promptly provide to the court and to defense counsel any screening material prepared pursuant to the juvenile’s arrest.

A detention hearing shall not be combined with a preliminary hearing or a first advisement. Due to the limited scope of a detention hearing, the representation of a juvenile by appointed counsel at a detention hearing does not, by itself, create a conflict in the event that such counsel is subsequently appointed to represent another individual whose case is related to the juvenile’s case.

A summons issued by a court to a juvenile shall:

  • Explain that the court will appoint counsel for the juvenile if the juvenile does not retain his or her own counsel; and
  • State the contact information for the OSPD that serves the jurisdiction of the court.

At a juvenile’s first appearance before the court, after the detention hearing or at the first appearance if the juvenile appears on a summons, the court shall advise the juvenile of his or her constitutional and legal rights, including the right to counsel. The court shall appoint the OSPD or, in the case of a conflict, the OADC for the juvenile unless the juvenile has retained his or her own counsel or the juvenile has made a knowing, intelligent, and voluntary waiver of his or her right to counsel.

Any decision to waive the right to counsel shall be made by the juvenile himself or herself after consulting with his or her defense counsel. The court may accept a waiver of counsel by a juvenile only after finding that:

  • The juvenile is of a sufficient maturity level to make a voluntary, knowing, and intelligent waiver of the right to counsel;
  • The juvenile has consulted with counsel and understands the sentencing options that will be available to the court in the event of an adjudication or conviction;
  • The juvenile has not been coerced into making the waiver;
  • The juvenile understands that the court will provide counsel if the juvenile’s parent, guardian, or legal custodian is unable or unwilling to obtain counsel for the juvenile; and
  • The juvenile understands the possible consequences that may result from an adjudication or conviction of the offense with which the juvenile is charged.

The court shall not accept a juvenile’s waiver of his or her right to counsel in any proceeding relating to a case in which the juvenile is charged with:

  • A sexual offense;
  • A crime of violence;
  • An offense for which the juvenile will receive a mandatory sentence upon his or her conviction of the offense; or
  • An offense for which the juvenile is being charged as a repeat juvenile offender, as an aggravated juvenile offender, or as a mandatory sentence offender.

The court shall not accept a juvenile’s attempt to waive his or her right to counsel if the prosecuting attorney is seeking direct file proceedings or a transfer proceeding or if the juvenile is in the custody of the state department of human services or a county department of social services.

For purposes of applying for court-appointed counsel, the indigence of a juvenile is determined only by considering the juvenile’s assets and income.

The appointment of counsel for a juvenile offender shall continue until the court’s jurisdiction is terminated, the juvenile or the juvenile’s parent, guardian, or legal custodian retains counsel for the juvenile, or the juvenile makes a knowing, intelligent, and voluntary waiver of his or her right to counsel.

A court shall not deem a guardian ad litem who is appointed by the court for a child in a delinquency proceeding to be a substitute for defense counsel for the juvenile.

The OSPD, before determining indigency, may provide limited representation to juveniles in detention hearings or adult defendants in custody who cannot post or are not allowed bond.

The OSPD, the OADC, and the judicial branch shall annually report certain data concerning juvenile delinquency proceedings.

The bill is assigned to the Judiciary Committee. The summary above relates to the bill as introduced; the sponsor is seeking input from various stakeholders to develop amendments.

Reasonably Ascertainable Value of Accrued Vacation and Accrued Sick Leave May Be Divided in Dissolution of Marriage

PFM Individual Photos LWMBy Lesleigh W. Monahan

On January 13, 2014, the Colorado Supreme Court issued its opinion in In re Marriage of Cardona and Castro. The supreme court granted certiorari review in this case to consider whether accrued vacation and sick leave may be considered marital property subject to division under C.R.S. § 14-10-113 of the Uniform Dissolution of Marriage Act (UDMA). The court considered this issue a matter of first impression in Colorado, noting, as did the court of appeals, that courts in other jurisdictions are split on this issue.

In Marriage of Cardona and Castro, wife raised the issue of husband’s accrued leave. The husband’s accrued leave had been reflected in his most recent pay stub, which indicated the total number of hours of vacation time and sick time that had accrued up until the date of dissolution. The pay stub did not indicate the cash value of the accrued leave or whether husband was entitled to cash payment for any portion of the leave. At the permanent orders hearing, the wife did not establish, nor did the husband render an opinion as to, whether husband was entitled to cash payment for any portion of the leave. In fact, the husband’s statements at the permanent orders hearing were somewhat vague and ambiguous as to his expectations—other than that he would be entitled to some form of pay for his accrued leave at the time of his termination.

The wife thereafter took the position that the husband’s accrued leave should be valued at $23,230.00. The trial court chose to divide the value of husband’s accrued vacation and sick leave as part of its division of the marital estate and required husband to pay wife $11,616.00 for “her interest in this pay.”

On appeal (which included additional issues other than those raised in the most recent supreme court opinion), the husband argued that accrued leave is not marital property. The divided panel of the court of appeals agreed and reversed. The majority reasoned that husband’s accrued leave was analogous to unvested stock options or an interest in a discretionary trust and “is thus not property subject to distribution on dissolution.” The case was remanded with direction to the trial court to reconsider the property division without considering husband’s accrued vacation and sick time. A petition for writ of certiorari, filed by wife, was granted on the following issue: “Whether the Court of Appeals erred in finding that accrued vacation and sick leave time is not marital property subject to division pursuant to section 14-10-113, C.R.S. (2010).”

The supreme court, in considering case law from other jurisdictions and relevant Colorado precedent, concluded that where a spouse has an enforceable right to be paid for accrued vacation or sick leave, as established by an employment agreement or policy, such accrued leave earned during the marriage is marital property for purposes of the UDMA. The court clarified that the value of such accrued leave at the time of dissolution must be equitably divided as part of the marital estate as long as such value can be reasonably ascertained at the time of dissolution. Alternatively, when a court cannot reasonably ascertain the value of such leave at the time of dissolution, the court should consider a spouse’s right to such leave as an economic circumstance of the parties when equitably dividing the marital estate. The supreme court found that there was not any competent evidence presented in the Cardona and Castro matter to establish that husband had an enforceable right to payment for his accrued leave and, accordingly, determined the trial court erred in considering the purported cash value of such leave as part of the marital estate. The court of appeals judgment was affirmed on narrower grounds.

The importance of this case to practitioners is clear in terms of trial preparation. As with other marital assets such as real estate, businesses, and retirement plans, it is essential for the practitioner to obtain accurate documentation and/or testimony from reliable sources such as the employer (as witness) and employer policies and procedures (as exhibits) relative to valuation of accrued sick time and leave. Based upon the detailed analysis in the supreme court decision, it will be critical for the trial court to assess whether the “value” of accrued vacation or sick leave, at the time of dissolution, may be so difficult to ascertain as to be speculative. Under many employment policies, different types of leave may be combined in one comprehensive paid time off plan, whereas other policies split vacation leave, sick leave, and personal leave into separate plans. Some employers allow leave to accrue and “roll over” from year to year, while others adopt a “use it or lose it” approach, under which accrued leave is forfeited if the employee does not take time off. Therefore, under this ruling, it is clear that accurate, demonstrative, and probative evidence must be presented to the trial court as to whether the value of accrued leave can be determined through a reasonable dollar estimate. If such an estimate cannot be demonstrated, it is clear that the accrued leave has speculative value that could lead a trial court to treat such leave as an “economic circumstance” under C.R.S. § 14-10-113(1)(c).

Justice Boatright concurred in the opinion but wrote separately to express two perceived errors in the reasoning of the majority opinion. The first relates to the inequity of “double counting” of accrued leave as both income and property. The second concern articulated by Justice Boatwright is that the ruling presents a contradiction in that “unlike calculating the present value of a pension, it will be nearly impossible to determine the present value of accrued leave.” Analysis would require consideration of a “bevy of speculative and indeterminate factors such as future illness, vacations, company policy, lifestyle changes, job changes, family needs and retirement.” In summary, the difficulties of valuing accrued leave led Justice Boatwright to the conclusion that it should be treated as income if the court orders child support and maintenance. Alternatively, if the court does not order child support or maintenance, it should only consider accrued leave as an “economic circumstance.”

Lesleigh W. Monahan, Esq. is a partner in the Lakewood firm of Polidori, Franklin & Monahan, LLC. Ms. Monahan has been practicing law exclusively in domestic relations since 1988. She received her Juris Doctor degree from the University of Colorado School of Law in 1987. Ms. Monahan has repeatedly been recognized for her accomplishments, and is a frequent speaker at continuing legal education programs. She was admitted as a Fellow in the American Academy of Matrimonial Lawyers in 2004 and was president of the Colorado chapter in 2011/2012. Ms. Monahan is also a member of the CBA Family Law Section, and was chair of that section’s executive council in 2002-2003.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Deadline Extended to Nominate Individuals for DBA Awards

The Denver Bar Association seeks nominations for its annual awards – the DBA Award of Merit, Judicial Excellence Award, Young Lawyer of the Year, Volunteer Lawyer of the Year, and Education in the Legal Community awards. The deadline for nominations has been extended to Monday, February 3, 2014.

Nominate an attorney by submitting a statement of why the nominee deserves the honor. The statement need not be a complete essay; just provide a few salient points and the committee will follow up with the nominator and nominee for complete details. You can complete and submit a nomination form online or send your nomination by email to Heather Clark. The committee will consider involvement with the DBA, community contributions outside the bar associations, career history and accomplishments. 

Click here for more information on the DBA awards and for links to nomination forms.

Tenth Circuit: Summary Judgment for Employer Reversed on FMLA and ADA Claims

The Tenth Circuit Court of Appeals published its opinion in Smothers v. Solvay Chemicals, Inc. on Tuesday, January 21, 2014.

Steven Smothers worked for Solvay Chemical, Inc. (“Solvay”) for 18 years until Solvay fired him, ostensibly because of a first-time safety violation and a dispute with a coworker. He sued Solvay, claiming the company’s true motivations were retaliation for taking medical leave from work, in violation of the Family Medical Leave Act (“FMLA”), and discrimination on the basis of his medical disability, in violation of the Americans with Disabilities Act (“ADA”). He also brought a state law claim for breach of implied contract. The district court granted summary judgment for Solvay on his FMLA and ADA claims and on his state law claim for breach of implied contract.

Smothers sought and was granted FMLA leave from Solvay for intermittent absences caused by severe neck and back pain. Solvay considered him an excellent, reliable mechanic with strong job knowledge, but managers and coworkers complained about his FMLA-protected absences.

The Tenth Circuit held that Smothers met his prima facie burden on his FMLA and ADA claims and presented a genuine dispute of material fact as to whether Solvay’s stated purpose for firing him was pretextual. After viewing the evidence in Smothers’ favor, it showed that: (1) Solvay treated Smothers differently from similarly situated employees who committed comparable safety violations; (2) Solvay’s investigation into Smothers’ quarrel with Mahaffey was inadequate; and (3) Solvay managers previously took negative action against Smothers because of his FMLA-protected absences. Together these grounds create a triable issue of fact as to whether Mr. Smothers’ FMLA leave was a substantial motivation in Solvay’s decision to fire him.

The court rejected Solvay’s argument that the group of decision makers who fired Smothers was different from groups that disciplined other employees. The court held that requiring absolute congruence of decision maker members “would too easily enable employers to evade liability for violation of federal employment laws. The district court erroneously rejected Mr. Smothers’ pretext argument by insisting that the composition of the decision maker groups be precisely the same in every relevant disciplinary decision. We disagree because there is more than enough overlap to conclude the employees identified here were similarly situated to Mr. Smothers.”

The court also rejected Solvay’s argument that evidence of previous negative comments and actions about Smother’s FMLA leave were irrelevant to support his FMLA claims as they did not qualify as adverse employment actions. These incidents were relevant to a pretext inquiry, even if they could not be used to directly support a retaliation claim.

The court reversed the grant of summary judgment to Solvay on the FMLA and ADA claims, and affirmed on the state law claim of breach of contract as Smothers failed to show how the decision to discharge him violated the terms of Solvay’s handbook.

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: Unpublished Opinions, 1/28/14

On Tuesday, January 28, 2014, the Tenth Circuit Court of Appeals issued three published opinions and three unpublished opinions.

Jameson v. Samuels

White v. State of Oklahoma

Baca v. Rodriguez

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.