June 26, 2019

Archives for September 16, 2015

Search and Seizure Law in Colorado: Update and Overview

Search-SeizureThe Fourth Amendment to the United States Constitution guarantees

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Since its ratification in 1791, the Fourth Amendment has been examined in myriad fact situations in thousands of cases. Practically every word in the Fourth Amendment has been adjudicated, in cases ranging from the mundane to the insane:

  • Illinois v. Gates, 462 U.S. 213, 238 (1983): The police received an anonymous letter implicating Susan and Lance Gates in a drug trafficking scheme. Police corroborated details of the anonymous letter and were able to obtain a warrant to search the Gates’ home and car. The search was held to be valid even though the informant was anonymous.
  • People v. Leftwich, 869 P.2d 1260 (Colo. 1994): An anonymous note claimed defendant was an active drug dealer, but the investigating officer was unable to corroborate the details of the purported drug deals. This was held so insufficient to support probable cause that the warrant was not saved by the good faith exception, and all evidence was suppressed.
  • Rochin v. California, 342 U.S. 165, 173 (1952): Police forcibly entered defendant’s room and saw him put two capsules into his mouth. They were unable to extract the pills and took the defendant to the hospital, where a doctor forced him to vomit. The Supreme Court held the warrantless conduct “shocks the conscience” and offends a “sense of justice.”
  • People v. Thompson, 820 P.2d 1160, 1164 (Colo. App. 1991): Officers doing surveillance for a drug buy saw defendant swallow something as they approached. They got a warrant for an x-ray, which showed a drug-filled balloon. The court ruled that any intrusion from the x-ray was minimal and since police clearly saw defendant swallow an object, the search was reasonable.
  • United States v. Booker, 728 F.3d 535 (6th Cir. 2013): After a valid arrest, defendant was strip-searched at the police station, and officers saw a string sticking out of his anus. Defendant tried to push it in further, and was transported to the hospital where eventually he was sedated, intubated, and paralyzed, and 5 grams of crack cocaine was retrieved from his rectum. The court held that the search, which was initially lawful, went too far without a warrant.
  • Wilson v. Arkansas, 514 U.S. 917 (1995): While executing a search warrant, officers found the door to defendant’s home open and walked in, unannounced. Defendant argued the search was unreasonable because the officers did not knock and announce their presence. The Supreme Court agreed, reversing the trial court’s order to the contrary and ruling that a search warrant executed without a knock and announce may sometimes be unreasonable.
  • People v. King, 292 P.3d 959, 963 (Colo. App. 2011): Officers executed a valid search warrant for a hotel room and found no drugs, but requested that defendant remove his pants and eventually removed drugs from his anus. The court ruled that even a valid search warrant that specifies a search “on a person” does not authorize a strip search.

These are some of the many examples of issues arising from Fourth Amendment cases as highlighted by Attorney H. Morley Swingle, author of CLE in Colorado’s new book, Search and Seizure Law in Colorado. Swingle will discuss these cases and more at his entertaining program, “Search & Seizure Law in Colorado: Update and Overview,” on Friday, September 18, 2015. Click the links below to register or call (303) 860-0608.

CLE Program: Search & Seizure Law in Colorado: Update and Overview

This CLE presentation will take place Friday, September 18, 2015 at the CLE offices. Click here to register for the live program or click here to register for the webcast.

Can’t make the live program? Order the homestudy here – CD • Video OnDemand • MP3

Elizabeth House Moulton Brodsky Appointed to Boulder County Court

On Tuesday, September 15, 2015, the Colorado State Judicial Branch announced Governor Hickenlooper’s appointment of Elizabeth House Moulton Brodsky to the Boulder County Court. The appointment, effective immediately, was occasioned by the appointment of Hon. Norma Sierra to the Twentieth Judicial District Court on August 1, 2015.

Prior to her appointment to the Boulder County Court, Judge Brodsky was a magistrate in the Twentieth Judicial District, where she oversaw a domestic relations docket. Previously, she had been managing attorney of Boulder County Legal Services and a staff attorney in the family and children’s unit of Colorado Legal Services. She had also been in private practice, where she concentrated her practice in domestic relations law. She received both her undergraduate and law degrees from the University of Colorado.

Colorado Court of Appeals: Test Drive Constituted Joint Venture Between Driver and Dealership

The Colorado Court of Appeals issued its opinion in American Family Mutual Insurance Co. v. AN/CF Acquisition Corp. on Thursday, September 10, 2015.

Summary Judgment—Vicarious Liability for Negligence—Joint Venture in Operating an Automobile.

Hart asked to test drive a car she was interested in buying from defendant Go Courtesy Ford, a car dealership. A salesman accompanied Hart as a passenger on the test drive. The salesman chose the route and told her where to turn. During the drive, Hart negligently attempted to turn left in front of oncoming traffic and collided with a car driven by Kelly.

Kelly filed a claim with her insurer (American Family) for damages. American Family paid the claim and then filed this negligence action as Kelly’s subrogee against Hart and Go Courtesy Ford to recover the amount it had paid and the deductible. Hart did not defend, and the court entered a default judgment against her. She did not appeal.

Cross-motions for summary judgment were filed. American Family argued the test drive was a joint venture between Go Courtesy Ford and Hart, making Go Courtesy Ford vicariously liable for Hart’s negligence. Go Courtesy Ford argued the test drive was not a joint venture because the participants had adverse financial interests. The district court granted Go Courtesy Ford’s motion and denied American Family’s.

The sole issue on appeal was whether, as a matter of law, the test drive constituted a joint venture. For a joint venture to exist in the operation of an automobile, “two or more persons must unite in pursuit of a common purpose” and “each person must have a right to control the operation of the automobile in question.” This doctrine has been used to hold defendant passengers vicariously liable for drivers’ negligence for nearly a century. No published Colorado case has considered the joint venture doctrine in the context of a test drive. The majority rule in other jurisdictions is that when a dealer’s representative is a passenger during the test drive, the dealer is liable for the prospective purchaser’s negligence.

The Court found the district court erred in finding that Go Courtesy Ford and Hart did not share a common purpose. The test drive itself constituted a common purpose. Further, Go Courtesy Ford’s salesman had a right to control the car because the dealership owned it. Therefore, the test drive constituted a joint venture and, as a matter of law, Go Courtesy Ford was liable for Hart’s negligence during the test drive. The judgment was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Instruction on Highest Degree of Care Unnecessary in Ambulance PI Case

The Colorado Court of Appeals issued its opinion in Bedee v. American Medical Response of Colorado on Thursday, September 10, 2015.

Negligence—Jury Instruction—Highest Degree of Care.

Bedee was a member of a medical team that transported a neonate in an ambulance owned by American Medical Response of Colorado (AMR). On the return trip, Bedee rode in the back of the ambulance, which was equipped with lap belts for occupants. The ambulance allegedly hit a series of dips in the road so severe that Bedee was lifted off her seat and slammed back down causing her lower back to twist and torque. Bedee sought damages for a lower back injury, alleging the drivers were negligent because they didn’t slow down when hitting the dips.

Before trial, Bedee submitted a trial brief arguing that a jury instruction should be given that the ambulance drivers owed its passengers the highest degree of care because of their control of the ambulance and her lack of freedom of movement during the ride. AMR rebutted this, arguing that ambulances are not common carriers under a Colorado statute and therefore the higher degree of care should not apply. The trial court did not give the instruction. The jury returned a verdict in favor of AMR, finding that AMR did not act negligently or cause Bedee’s injuries. Bedee appealed, arguing it was reversible error to not give the highest standard of care instruction.

The Court of Appeals discussed the elements of a negligence action and the factors set forth under Lewis v. Buckskin Joe’s, 396 P.2d 933 (Colo. 1964),for the highest degree of care instruction. It noted these factors have only been applied in Colorado to ski lift operators and operators of amusement rides. It also noted that a trial court may instruct a jury on the highest degree of care only where “all minds concur” that a business by its very nature is “fraught with peril to the public.” In addition, if a defendant is a “common carrier,” it has the duty to exercise the highest degree of care to its passengers.

Here, the Court found no evidence of an increased degree of risk on the return ambulance trip. Just as any other driver in Colorado, there was no reason to hold the ambulance driver to a higher degree of care than that of reasonable care. To hold otherwise would to establish precedent that every driver owes a higher degree of care than reasonable care to its passengers.

The Court also rejected the argument that the ambulance was a common carrier. The Court found that most jurisdictions based this determination on their statutes. In Colorado, the statutory definition in Title 40 does not encompass ambulances, and in fact, they are specifically excluded in CRS § 40-10.1-105(1)(d). The judgment was affirmed.

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

Colorado Court of Appeals: Hotels Lacked Standing to Challenge Economic Development Commission Decision

The Colorado Court of Appeals issued its opinion in 1405 Hotel, LLC v. Colorado Economic Development Commission on Thursday, September 10, 2015.

Standing—Timeliness—CRCP 106(b)—CRS § 24-4-106(4).

In 2009, the General Assembly enacted the Colorado Regional Tourism Act (RTA) to provide a mechanism through which as many as two local governments per year can obtain sales tax increment financing for the development of large-scale regional tourism projects. Before approving a project, the Colorado Economic Development Commission (CEDC) is required to make several specific findings and to adopt a resolution with specific funding and authorization provisions.

During the RTA’s inaugural application cycle in 2011, the City of Aurora (Aurora) submitted a proposal to build a $824 million hotel and conference center (Gaylord Project). In May 2012, the CEDC announced its intention to approve the Gaylord Project’s requested $81 million tax increment subsidy if certain conditions were met within 120 days. Later that month, the developer announced it was going to withdraw from the Gaylord Project. During the May 2013 CEDC meeting, Aurora announced that RIDA Development Corp. (RIDA) had agreed to develop a project similar to the Gaylord Project and that Marriot International would operate it (IDA/Marriot Project). Aurora did not submit a new RTA application.

In July 2013, plaintiffs, eleven hotels along Colorado’s Front Range (collectively, Hotels), joined by others, submitted a petition to the CEDC requesting it require Aurora to submit a new RTA application for the RIDA/Marriot Project. In August 2013, the Attorney General denied the petition as untimely. In October 2013, the CEDC adopted a final resolution approving Aurora’s RTA application for the RIDA/Marriot Project.

In September 2013, the Hotels filed this action against the CEDC and Aurora. In December 2013, Aurora moved for a CRCP 12(c) judgment on the pleadings as to three of its claims and for judgment on the third claim. The district court granted the motion.

The Court of Appeals first addressed the issue of whether the Hotels’ claims were untimely, thereby depriving the court of subject matter jurisdiction. CRCP 106(b) requires a party seeking judicial review pursuant to CRCP 106(a)(4) to file a complaint within 28 days after the final decision of the tribunal being challenged. CSR § 24-4-106(4) provides for a 35-day window to challenge a final agency action. The issue here was when the “point of administrative finality” was for purposes of judicial review. The Court held it was in October 2013, when the CEDC adopted a resolution memorializing the terms of the award. Consequently, the Court had to consider whether the premature filing of a complaint by the Hotels in September 2013 rendered it untimely. The Court determined it did not and held that the district court obtained jurisdiction of the earlier filed complaint in October 2013.

The Court then turned to the Hotels’ argument that it was error to find they lacked standing to bring three of their four asserted claims for relief. Standing requires establishment of an “injury in fact” to a legally protected interest. The Court concluded that the Hotels’ alleged injury was “indirect and incidental” to Aurora’s alleged wrongdoing: even if the RIDA/Marriot Project would cause the Hotels economic harm by taking customers from them, the harm is not directly caused by the CEDC or Aurora’s conduct in allegedly failing to comply with the RTA. The Hotels therefore lacked standing to bring three of their four claims for relief.

Finally, because the remaining claim turned on finding that the May 2012 approval of the Gaylord Project constituted a final agency action, and the Court found that was not the case, it did not need to address the appeal of this claim. The order was affirmed.

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

Tenth Circuit: Unpublished Opinions, 9/15/2015

On Tuesday, September 15, 2015, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

United States v. McCary

Serna v. Bureau of Land Management

Griffith v. Bryant

Thomas v. Patton

B.S.C. Holding, Inc. v. Lexington Insurance Co.

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