July 21, 2018

Tenth Circuit: Vehicle Unlawfully Impounded when Legally Parked on Private Property

The Tenth Circuit Court of Appeals issued its opinion in United States v. Sanders on Friday, August 7, 2015.

Beverly Sanders was arrested as she was leaving a store in Aurora, Colorado, based on an outstanding warrant for failure to comply with probation conditions. Her friend with whom she had been shopping was not detained at first, but was later arrested when police found a baggie of heroin near where he had been. Although the friend offered to find someone to remove Sanders’ car, the police impounded the vehicle, claiming it was at risk for theft or vandalism. A subsequent inventory search revealed methamphetamine, Ecstasy, and paraphernalia. Sanders was indicted for possessing controlled substances with intent to distribute. She moved to suppress the contents of the inventory search, and the district court granted her motion. The government filed a timely interlocutory appeal.

The government argued that seizure of the car was necessary pursuant to the community caretaking exception to the Fourth Amendment’s warrant requirement. The Tenth Circuit explored the strictures of the community caretaking exception in depth, explaining that it generally applies to protect the public safety or promote efficient movement of traffic, and that warrantless impoundments exercised as a pretext for investigation or not exercised according to standardized criteria are unconstitutional. Applying prior case law from its circuit and other circuits, the Tenth Circuit held that “impoundment of a vehicle on private property that is neither obstructing traffic nor creating an imminent threat to public safety is constitutional only if justified by both a standardized policy and a reasonable, nonpretextual community-caretaking rationale.” In this case, the vehicle was parked legally on private property, neither obstructing traffic nor threatening public safety. The Aurora Police Department’s standardized policy regarding vehicles legally parked on private property was to either have Sanders release them from potential liability if the car was left in the lot or have it towed by a private company. They neither offered Sanders these options nor explained their failure to do so, and thus the impoundment was unlawful. Additionally, the Tenth Circuit found the Aurora policies unlawful because they do not offer an officer discretion as to which option to choose. The Tenth Circuit held the impoundment was unlawful for an independent reason: it was not justified by a reasonable, non-pretextual community caretaking rationale.

The Tenth Circuit affirmed the district court’s suppression order.

Colorado Supreme Court: Despite Counsel’s Ineffective Assistance, Defendant Knowingly, Voluntarily, and Intelligently Decided to Testify

The Colorado Supreme Court issued its opinion in People v. Quintero-Amador on Tuesday, October 13, 2015.

CAR 4.1(a)—Fifth Amendment—Sixth Amendment.

In this interlocutory appeal brought by the People pursuant to CAR 4.1(a), the Supreme Court reversed the trial court’s order suppressing at retrial the testimony given by defendant at his first trial. The Court concluded that the trial court erred in suppressing this evidence because defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights when he testified at his first trial. The Court further concluded that trial counsel’s ineffective assistance did not directly affect defendant’s prior testimony, thus precluding a finding that the admission of this testimony would violate defendant’s Sixth Amendment rights.

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

Tenth Circuit: Interlocutory Appeal of Preliminary Injunction Related to 2014 Elections Moot

The Tenth Circuit Court of Appeals issued its opinion in Fleming v. Gutierrez on Tuesday, May 5, 2015.

The 2012 general election in Sandoval County, New Mexico, was fraught with problems. Some voters waited more than five hours to vote, and others left before casting their ballots. Following the disastrous election, the Sandoval County Board of Commissioners passed two resolutions condemning the handling of the 2012 election and designating more voting centers for the 2014 election.

Several voters filed suit in federal district court after the 2012 elections, alleging equal protection and due process § 1983 violations and a violation of New Mexico’s constitutional free-and-open-elections clause. In September 2014, the district court entered a preliminary injunction against the county that essentially made any discretionary aspects of the Board’s resolutions non-discretionary. The injunction explicitly stated it was to apply through the November 2014 elections, at which point the court would reevaluate the case. The county filed an interlocutory review, seeking vacation of the injunction on the grounds that the voters lacked standing and were unlikely to prevail on the merits, and also seeking expedited review. The Tenth Circuit declined expedited review and the November 2014 election occurred under the bounds of the preliminary injunction.

The voters requested the Tenth Circuit to dismiss the appeal as moot. The county argued the election did not moot the injunction because it falls within the exception to the mootness doctrine for issues capable of repetition yet evading review, and because the injunction remains relevant to the issue of the prevailing party’s attorney fees. The Tenth Circuit addressed each contention in turn.

The Tenth Circuit held that the November 2014 election mooted the interlocutory appeal, finding any decision about the district court’s order would have no present day effect on the parties because the election and the effective time for the injunction had passed. The Circuit further found the exception to the mootness doctrine for issues capable of repetition yet evading review did not apply to the preliminary injunction, though it could apply to the case as a whole. Because the complaint, in which the voters sought permanent injunctive relief as to all future elections, was still pending in the district court, the issues were capable of review.

As to the attorney fee award, the Tenth Circuit found that the voters were the prevailing party as to the preliminary injunction but may not prevail on the suit in district court. Because no fee request had been filed, the Tenth Circuit lacked jurisdiction to address the issue.

The Tenth Circuit granted the voters’ motion to dismiss the appeal as moot and dismissed the appeal for lack of jurisdiction.

Colorado Supreme Court: Nothing in Record Showed Defendant Could Read English Therefore Both Miranda Advisements Deficient

The Colorado Supreme Court issued its opinion in People v. Carrion on Monday, March 16, 2015.

Suppression Order—Inadequate Oral Miranda Advisement—Findings of Fact—Insufficient Evidence Native Spanish Speaker Could Read Written Miranda Advisement in English.

During a custodial interrogation, investigators provided Carrion, a native Spanish speaker, a written Miranda advisement in English. The Supreme Court held that the trial court’s factual findings were supported by the record and were not clearly erroneous. The trial court found that Carrion had difficulty with the English language and that there was insufficient evidence before the court that Carrion could read English. Accordingly, the trial court suppressed statements Carrion made during the custodial interrogation. Because the trial court’s factual findings were supported by the record, the Court affirmed the trial court’s suppression order.

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

Colorado Court of Appeals: Claims Against Developers Could Lie in Tort; CGIA May Apply

The Colorado Court of Appeals issued its opinion in First National Bank of Durango v. Lyons on Thursday, February 26, 2015.

Securities Fraud—Subject Matter Jurisdiction—Colorado Securities Act Claims Lie in Tort—Scope of “Public Employment.”

Defendants William S. Lyons, Jr., William S. Lyons III, and others comprised the Board of Directors of Lincoln Creek Metropolitan District (District). The District is a special district formed to provide public facilities to Lincoln Creek Village. Defendants’ company, LCV, LLC, owned almost all of the property in the District and was the developer of Lincoln Creek Village.

In March 2006, plaintiffs (collectively, Banks) purchased $4.13 million of General Obligation Tax Bonds issued by the District to partially fund construction of Lincoln Creek Village. In July 2008, the bank that held the deed of trust securing the development loan foreclosed on the encumbered Lincoln Creek Village property. The Banks then filed this action against defendants, LCV, and the bond underwriter.

The Banks alleged that defendants misrepresented and omitted material facts in connection with the offer and sale of the bonds, in violation of CRS § 11-51-501(1) of the Colorado Securities Act (CSA). Defendants asserted the defense of governmental immunity and filed a CRCP 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, arguing that the Banks had failed to provide notice of the claims to the District, a jurisdictional prerequisite under the Colorado Governmental Immunity Act (CGIA). The district court denied the motion to dismiss, concluding that the CSA claims do not sound in tort and therefore the CGIA is inapplicable.

On interlocutory appeal, defendants argued that the Banks’ CSA claims lie in tort or could lie in tort. The Court of Appeals noted that defendants are public employees for purposes of the CGIA and that the CGIA requires that written notice of claims against a public employee must first be provided within the statutory period to the public entity where the employee is employed. Failure to comply with the notice requirement forever bars the action against the employee. It was undisputed that the Banks did not provide notice to the District of their claims against defendants. The question then became whether the claims against defendants lie in tort or could lie in tort.

The Court found that the complaint demonstrated that the injury underlying the Banks’ CSA claims was tortious in nature. Essentially, the Banks alleged that they relied on a misrepresentation of material fact by defendants. This is injury arising out of tortious conduct.

The Banks also argued that the misrepresentations were made by defendants in their capacity as private developers and not within the scope of any “public employment” with the District; therefore, the CGIA notice requirement does not apply. Defendants countered that this issue was not decided by the district court. The Court agreed with defendants and remanded the case to the district court to decide whether the claims against them are based on acts or omissions that occurred within the scope of their public employment. If it finds the misrepresentations alleged were made by defendants within the scope of their employment with the District, then it must dismiss the Banks’ claims. However, if the claims were premised on misrepresentations made by defendants as private developers and outside the scope of their employment with the District, the CGIA does not apply and statutory notice was not required.

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

Colorado Supreme Court: Historical Consumptive Use Analysis May Only Be Conducted on Water Associated with Water Right

The Colorado Supreme Court issued its opinion in Concerning the Application for Water Rights of Widefield Water & Sanitation District and the City of Fountain in Custer County: Widefield Water & Sanitation District v. Witte, Division Engineer for Water Division 2 on Monday, December 22, 2014.

Historical Consumptive Use Analysis.

In this interlocutory appeal from the water court, the Supreme Court determined whether, when a decree delineates specific acreage to be irrigated, an applicant seeking to change the decreed right may conduct a historical consumptive use analysis on acreage beyond that lawfully associated with the relevant water right. The Court held that this is impermissible and that an applicant may conduct such an analysis only on acreage lawfully irrigated in accordance with the expressly decreed appropriation. Accordingly, the Court affirmed the judgment of the water court and remanded the case to that court for proceedings consistent with this opinion.

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

Colorado Supreme Court: Defendant’s Statements to Investigators Were Voluntary and Suppression Inappropriate

The Colorado Supreme Court issued its opinion in People v. Liggett on Monday, September 22, 2014.

Suppression of Statements—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing statements that defendant made to investigators during an interview. The trial court found that defendant did not make the statements voluntarily. The Supreme Court held that, when considering the totality of the circumstances, the investigators never overbore defendant’s will; thus his statements were voluntary. Accordingly, the trial court’s suppression order was reversed and the case was remanded.

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

Colorado Supreme Court: Officer’s Stop and Search Legal and Evidence from Search Should Not Have Been Suppressed

The Colorado Supreme Court issued its opinion in People v. Vaughn on Monday, September 22, 2014.

Suppression of Evidence—Traffic Stop, Arrest, and Inventory Search.

In this interlocutory appeal, the Supreme Court reversed the trial court’s order suppressing drug evidence that was seized after a traffic stop. The officer had reasonable suspicion to stop the vehicle and probable cause to arrest defendant. After arresting defendant, who was the sole occupant of the vehicle, the officer acted pursuant to standardized departmental policy in deciding to impound the vehicle and performing an inventory search. The evidence therefore was seized as a result of a valid inventory search. The case was remanded to the trial court.

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

Colorado Supreme Court: Juvenile’s Statements Made Voluntarily and Not While in Custody

The Colorado Supreme Court issued its opinion in People v. N.A.S. on Monday, June 30, 2014.

Juvenile Custody Under Miranda—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing statements of the juvenile defendant. The trial court found that defendant was in custody when he made the statements; that he did not waive his Miranda rights knowingly, voluntarily, or intelligently; and that the statements were involuntary.

The Supreme Court held that, in light of the totality of the circumstances, defendant was not in custody when he made the statements, and he spoke voluntarily. Accordingly, the Court reversed the trial court’s suppression order and remanded for proceedings consistent with this opinion.

Summary and full case available here.

Colorado Supreme Court: Results of Warrantless Blood Draw Properly Suppressed

The Colorado Supreme Court issued its opinion in People v. Schaufele on Monday, June 2, 2014.

Warrantless Blood Draw—Suppression of Evidence.

Defendant was involved in a motor vehicle accident that resulted in injuries to himself and others. Approximately one hour later, while defendant lay unresponsive at the hospital, a police officer told a nurse to draw his blood for alcohol analysis. It is undisputed that the officer and her co-workers never considered applying for a search warrant. The People later sought to use evidence from that blood draw in prosecuting defendant for vehicular assault, driving under the influence, driving under the influence per se, and careless driving.

In this interlocutory appeal, the Supreme Court considered whether the trial court applied the proper legal test when it suppressed evidence stemming from the blood draw. The People also asked the Court to adopt a new approach in evaluating whether exigent circumstances justify a warrantless blood draw of a suspected drunk driver, an approach based solely on the length of time required to secure a search warrant.

The Court affirmed the trial court’s suppression order. The Court held that the trial court properly adhered to Missouri v. McNeely, 133 S.Ct. 1552 (2013), in suppressing evidence of defendant’s blood draw.  The Court rejected the People’s invitation to disregard the majority opinion in McNeely, which instructs a trial court to consider the totality of the circumstances and to instead adopt Chief Justice Roberts’s concurring and dissenting opinion that “a warrantless blood draw may ensue” if “an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant.”

Summary and full case available here.

Colorado Supreme Court: Defendant Not in Custody When He Made Inculpatory Statements

The Colorado Supreme Court issued its opinion in People v. Begay on Tuesday, May 27, 2014.

Miranda Advisement—Custodial Interrogation—Suppression of Statements.

In this interlocutory appeal, the People challenged the trial court’s order suppressing statements defendant made while waiting for a “show-up” identification and before having received a Miranda advisement,. The trial court trial noted that whether a defendant is in custody is an objective assessment; however, under the totality of the circumstances, a reasonable person would not have believed that he or she was free to leave that situation.

The People conceded that defendant’s questioning constituted interrogation, but they contended that he was not in custody until he was formally arrested. They argued that the trial court erred by applying the wrong legal standard when it analyzed whether defendant felt “free to leave” instead of whether a reasonable person in defendant’s position would have believed himself to be deprived of his freedom to a degree associated with a formal arrest.

The Supreme Court agreed, finding that defendant was not in custody for the purposes of Miranda until he was formally arrested and read his Miranda rights. The trial court erred by suppressing the statements after applying the standard governing seizure under the Fourth Amendment instead of custody under the Fifth Amendment. Accordingly, the trial court’s suppression order was reversed and the case was remanded for further proceedings.

Summary and full case available here.

Colorado Supreme Court: Defendant’s Statements to Deputy were Voluntary and Need Not Be Suppressed

The Colorado Supreme Court issued its opinion in People v. McIntyre on Tuesday, May 27, 2014.

Suppression of Statements—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing inculpatory statements made by defendant. The trial court found that defendant did not voluntarily make the statements. The Supreme Court disagreed, holding that, when considering the totality of the circumstances, the police did not improperly coerce defendant into making the statements and defendant instead spoke voluntarily. Accordingly, the Court reversed the trial court’s suppression order and remanded the case to the trial court.

Summary and full case available here.