July 21, 2019

Tenth Circuit: Seizure of Gun Did Not Justify Suppression of Evidence

The Tenth Circuit Court of Appeals published its opinion in United States v. Gordon on Monday, January 27, 2014.

On June 5, 2011, Brandi Thaxton called 911 to report an incident of domestic violence which had occurred two days earlier with her boyfriend Shawn Gordon, who had outstanding warrants for his arrest. Thaxton said she and Gordon had been arguing when Gordon grabbed a samurai sword and swung it at her. When officers arrived, they found weapons, including a gun and swords, which they seized.

Gordon was charged with being a felon in possession of a firearm. He moved to suppress the evidence found during the warrantless search of his home, most specifically the shotgun. The district court denied the motion. After the motion was denied, Gordon pled guilty but reserved the right to appeal from the denial of his motion to suppress.

The Fourth Amendment prohibits unreasonable searches and seizures. A search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of exigent circumstances. One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.

Such an exigency existed in this case. When police arrived, Thaxton was too frightened to leave the basement. She told the officers she was in fear for her life. There were weapons throughout the house in addition to the swords and gun. Further, temporary seizure of the gun was permissible to stabilize the situation and eliminate the risk of immediate harm.  Gordon was improperly deprived of his property for only a few minutes−the elapsed time between locking the house and discovering Gordon was a convicted felon−and while he was legitimately in custody. The seizure of the gun was a de minimis intrusion on Gordon’s rights and cannot justify suppression of the shotgun as evidence.


Colorado Supreme Court: Defendant Bears Burden of Proving that Search and Seizure Violated Fourth Amendment Rights

The Colorado Supreme Court issued its opinion in People v. Cunningham on Monday, December 23, 2013.

Criminal Procedure—Crim. P. 41(e)—Suppression Hearing—Defendant’s Burden of Going Forward With Evidence—Searches and Seizure Under Warrant.

The Supreme Court held that the trial court erred in suppressing evidence when it ruled that the prosecution must go forward with evidence showing that the warrant in this case was facially valid and legally executed. Whether a search or seizure is performed pursuant to a warrant or is warrantless, the defendant under Crim.P. 41(e) bears the burden of going forward to show that the search or seizure violated his or her Fourth Amendment rights. The suppression order was reversed and the case was remanded to the trial court.

Summary and full case available here.

Tenth Circuit: Fourth Amendment Search and Seizure Was Lawful

The Tenth Circuit Court of Appeals published its opinion in United States v. Harris on Friday, November 15, 2013.

Alonzo Johnson was convicted of participating in the contract killing of Neal Sweeney, a Tulsa businessman. While officers worked to build their case against Mr. Johnson, a fair number of facts began pointing to Mr. Harris’s auto shop as a place where evidence might be hidden. So officers secured a warrant to search the shop and, while executing it, came across an illegal gun and drugs belonging to Mr. Harris. As a result, Mr. Harris was convicted of federal charges. Mr. Harris appealed, arguing that the district court should have suppressed the evidence found in his shop or at least granted his motion for a new trial.

Mr. Harris acknowledged that the officers had a warrant for their search and did not contest the manner of its execution. Instead, he argued the warrant was constitutionally defective on its face because it failed to establish a “nexus” between the crime officers sought to investigate and his auto shop.

For a search to qualify as “reasonable” within the meaning of the Fourth Amendment, the court had to discern some “nexus between the contraband to be seized or suspected criminal activity and the place to be searched.” United States v. Gonzales, 399 F.3d 1225, 1228 (10th Cir. 2005). The Tenth Circuit has held that a “sufficient nexus” is established by a search warrant when the materials supporting it describe “circumstances which would warrant a person of reasonable caution [to believe] that the articles sought are at a particular place.” United States v. Biglow, 562 F.3d 1272, 1279 (10th Cir. 2009). For its part, the Supreme Court has held that “[p]robable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Grubbs, 547 U.S. 90, 95 (2006).

The Tenth Circuit held that, viewed in whole, the information in the record was enough to cause a reasonable person to believe evidence about the murder-for-hire plot could be found at the auto shop. The court held the search here was lawful, the fruits of it were untainted by any Fourth Amendment violation, the evidence presented against Mr. Harris at trial was lawful, and no lawful basis existed to undo the jury’s verdict.

The judgment was AFFIRMED.

Colorado Supreme Court: Facts and Circumstances Created Reasonable Suspicion so Evidence from Vehicle Search Admissible

The Colorado Supreme Court issued its opinion in People v. Crum on Tuesday, November 12, 2013.

Vehicular Search Incident to Arrest—Reasonable Articulable Suspicion—Reasonable Searches and Seizures—Suppression of Evidence.

The Supreme Court held that where a defendant is seen retrieving controlled substances packaged in a manner consistent with the intent to distribute from a vehicle parked late at night in an area known for high volumes of drug activity, and where the defendant attempts to conceal the substances, the facts and circumstances give rise to a reasonable articulable suspicion that the vehicle might contain more evidence of possession of a controlled substance. Under such circumstances, police officers may search the vehicle incident to the defendant’s arrest for possession of a controlled substance. The Court therefore reversed the order of the trial court suppressing evidence discovered during the search.

Summary and full case available here.

Tenth Circuit: Second-Degree Murder Conviction Affirmed of Mother Whose Daughter Died of Dehydration in Her Care

The Tenth Circuit Court of Appeals published its opinion in United States v. Christie on Tuesday, June 11, 2013.

For Rebecca Christie, life must have seemed more virtual than real. She usually awoke around noon, settled in before her computer, and logged on to World of Warcraft for gaming sessions lasting well past midnight. There she assumed a new identity in a fantastical world filled with dragons and demons where players staged heroic adventures with and against other players. All the while back in the real world Ms. Christie ignored the needs of her three-year-old daughter (“BW”). The neglect didn’t prove fatal so long as Ms. Christie’s husband Mr. Wulf was around to provide some care. But nine days after her husband left for an out-of-state deployment, the child was dead from dehydration.

Ms. Christie appealed her second-degree murder and state child abuse convictions, raising significant questions about computer searches under the Fourth Amendment and the exclusion of witnesses from trial under the Sixth Amendment. The government’s cross-appeal raised important questions, too, touching on the Assimilative Crimes Act and the Fifth Amendment’s double jeopardy guarantee.

The Tenth Circuit held that the district court handled all these questions well and carefully and saw no grounds on which to reverse its judgment in this tragic case.

Much of the evidence presented at trial came from the computer she so prized. From their forensic analysis, FBI investigators learned that Ms. Christie’s online activities usually kept her busy from noon to 3 a.m. with little pause. They learned that she was in a chat room only an hour before finding BW near death, and that she was back online soon afterwards. They learned from Ms. Christie’s messages to other gamers that she was annoyed by her responsibilities as a mother and “want[ed] out of this house fast.”

Ms. Christie contended this evidence and more from her computer was uncovered in violation of her Fourth Amendment rights and the district court should have suppressed it from her trial. Ms. Christie doesn’t question whether the government’s seizure of the computer satisfied the Fourth Amendment. Instead, Ms. Christie attacked the propriety of the two searches the government undertook once it had control of the computer. To justify its searches, the government pointed to a pair of warrants it sought and received, one for each search. It was these warrants Ms. Christie challenged.

The first warrant came some five months after authorities seized the computer. Ms. Christie argued this delay was constitutionally impermissible, should have precluded any warrant from issuing, and itself required the suppression of everything the government found.

An unreasonable delay in obtaining a search warrant can sometimes violate the Fourth Amendment. In assessing the reasonableness of a delay in seeking a warrant, we must take account of “the totality of the circumstances.” United States v. Sokolow, 490 U.S. 1, 8 (1989). The task in each case is to “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983).

Mr. Wulf was at least a co-owner of the computer, he consented to its seizure, and Ms. Christie herself raised no objection to the seizure either at the time or in the following weeks and months. There was also undisputed evidence that the government was called away on other operations in the intervening months. The Tenth Circuit held that the government’s side of the ledger revealed a colorable interest in prioritizing law enforcement efforts while Ms. Christie could point to little harm to her interests in light of her husband’s express consent and her lack of objection.

Next Ms. Christie attacked the validity of the second warrant to conduct a more thorough search of her computer. She argued this warrant violated the Fourth Amendment’s promise that “no Warrants shall issue” without “particularly describing the place to be searched, and the persons or things to be seized.” A warrant isn’t ever supposed to be a license for just “a general . . . rummaging.” United States v. Brooks, 427 F.3d 1246, 1251 (10th Cir. 2005).

No doubt the particularity requirement and its underlying purposes are fully engaged when investigators seek to search a personal computer. Personal computers can and often do hold “much information touching on many different areas of a person’s life.” United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001). They can contain (or at least permit access to) our diaries, calendars, files, and correspondence — the very essence of the “papers and effects” the Fourth Amendment was designed to protect.

The warrant in this case allowed the police to search the computer for “[a]ll records and information relating to the murder, neglect, and abuse of [BW] from June 19, 2002 (date of birth) to May 4, 2006, (date computer seized.” The Tenth Circuit found this limiting direction particular enough under the case law. See Brooks, 427 F.3d at 1252.

In her final Fourth Amendment attack, Ms. Christie returned to the theme of faulting the government for its delay in seeking the second warrant. However, after the government executed its first search warrant and found incriminating evidence, it was presumptively entitled to retain the computer through trial. The general rule is that lawfully seized property bearing evidence relevant to trial “should be  returned to its rightful owner once the criminal proceedings have terminated,” not before. United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1212 (10th Cir. 2001).

Ms. Christie further objected to the district court’s decision to exclude Mr. Wulf from the courtroom during the brief testimony of his ten-year-old daughter. Mr. Wulf’s exclusion, Ms. Christie insisted, violated her Sixth Amendment right to a public trial.

To support a partial closure of a trial, the district court need only identify a “‘substantial’ interest and document it with “sufficient findings to allow the reviewing court” to assess the decision. The Tenth Circuit held that “safeguarding the physical and psychological well-being of a minor” qualifies not just a substantial interest but a compelling one. See Globe Newspaper Co. v. Superior Court for Norfolk Cnty., 457 U.S. 596, 607 (1982).

This took the Court to the government’s cross-appeal. At the end of Ms. Christie’s trial, the jury convicted her of one federal charge (second-degree murder) and three crimes assimilated from New Mexico state law (intentional child abuse resulting in death, negligent child abuse resulting in death, and negligent child abuse not resulting in death). After receiving the verdict, the district court dismissed the two assimilated state homicide charges, leaving Ms. Christie responsible for second-degree murder and negligent child abuse not resulting in death. In explaining its dismissal of the assimilated homicide charges, the court pointed to the fact New Mexico does not permit more than one homicide conviction per death and, in this case, Ms. Christie already stood convicted for second-degree murder.

On appeal, the government argued the state assimilated homicide charges should be reinstated. The Assimilative Crimes Act (ACA), 18 U.S.C. § 13, states in part that anyone “guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed . . . within the jurisdiction of the State . . . in which [the federal enclave] is situated, . . . shall be guilty of a like offense and subject to a like punishment.” In this case, the ACA required the district court to dismiss the assimilated state law claims after trial because New Mexico prohibits the entry of convictions for child abuse-resulting-in-death alongside a conviction for any other form of homicide. See State v. Santillanes, 27 P.3d 456, 468 & n.3 (N.M. 2001).

Apart from the ACA but not wholly unrelated to it, there remains the question of double jeopardy. The Double Jeopardy Clause of the Fifth Amendment protects not only against successive trials on the same charges but also against “multiple punishments for the same offense.” Whalen v. United States, 445 U.S. 684, 688 (1980). When a federal statute contains a plainly expressed direction on the question of multiple punishments, it controls. See Garrett v. United States, 471 U.S. 773, 779 (1985). In this case, the ACA states specifically how much punishment Congress wants the Court to impose: the ACA authorizes federal courts to impose “like punishment” and no more. “Like punishment” in this case means no punishment at all because in New Mexico courts would have to dismiss both of the child-abuse-resulting-in-death convictions given the presence of another homicide conviction. So, Ms. Christie cannot stand convicted of both second-degree murder and the dismissed state offenses.

One final issue remained. Ms. Christie argued the district court erred by failing to dismiss the state homicide charges before trial, rather than after. Even assuming (without deciding) that the district court committed an error by failing to dismiss the state homicide charges before trial, the Tenth Circuit found any such error was harmless.


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.


Tenth Circuit: Bar on Reviewing Fourth Amendment Violations Applies to 28 U.S.C. § 2255 Motions

The Tenth Circuit published its opinion in United States v. Lor on Tuesday, February 5, 2013.

A Wyoming Highway Patrol trooper stopped the defendant, Lee Vang Lor. for speeding in March 2007. After gaining consent to search the vehicle, the trooper found methamphetamine. The district court denied Lor’s motion to suppress the methamphetamine, and he entered a conditional guilty plea to one count of possessing methamphetamine with intent to distribute and one count of conspiring to do the same.

After the denial of the suppression motion was affirmed, Lor filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255 on the basis of newly discovered evidence. The new evidence was that the Wyoming Highway Patrol terminated the trooper who stopped Lor because the trooper called in a false dispatch report after Lor’s arrest but before his suppression hearing. Lor argued that “he had no full and fair opportunity to litigate his Fourth Amendment claim because he did not have ‘crucial evidence needed to impeach the Government’s sole witness to establish reasonable suspicion.’”

Because the Fourth Amendment exclusionary rule is for deterrent purposes, the Tenth Circuit has extended the U.S. Supreme Court’s Stone v. Powell bar on reviewing Fourth Amendment violations in habeas proceedings to § 2255 motions, when the defendant had a full and fair opportunity to litigate his Fourth Amendment claim at trial and on direct appeal. “Absent ineffective assistance of counsel or government concealment, a defendant cannot claim that the mere existence of undiscovered material evidence deprived him of an opportunity to litigate his claim.”

Lor made no ineffective assistance of counsel claim and there was no evidence that the government withheld the potentially impeaching evidence as the trooper was not put on paid leave until four months after Lor’s suppression hearing. Additionally, the trooper had not made the false report in the unrelated case at the time of Lor’s stop and search, so it would have had no affect on his actions during the search. The court affirmed the denial of § 2255 relief.

Colorado Supreme Court: By the Time Defendant, Who Was Sleeping in His Car, Woke Up, Officer Had Reasonable Suspicion to Detain Him

The Colorado Supreme Court issued its opinion in Tate v. People on Thursday, December 20, 2012.

Criminal Law—Search and Seizure.

Walter Tate sought review of the district court’s judgment reversing a suppression order of the Arapahoe County Court. In a prosecution of Tate for driving under the influence, the trial court found that he had been stopped without reasonable articulable suspicion the moment a patrol car parked behind him, hemming in his car, even though he was asleep and unaware of the officer at the time. On interlocutory appeal by the People, the district court concluded that the earliest moment at which defendant could have been seized occurred when he awoke and became aware of his circumstances, and by then, the officer had acquired at least reasonable suspicion to justify a stop.

The Supreme Court affirmed the district court’s judgment. The Court held that a person cannot be seized within the meaning of the Fourth Amendment—even if his freedom of movement is actually restricted—without perceiving a show of authority as directed at him or his car. The case therefore was remanded for return to the county court and implementation of the district court’s remand order.

Summary and full case available here.