Tuesday, November 17, 2009

Search Warrant Not Stale, Supported by Probable Cause

US v. Potts, -- F.3d --, 2009 WL 3806681 (10th Cir. 11/16/09) - search warrant affidavit established probable cause to believe child porn would be found at Mr. Pott's residence. Witness who made report seemed credible and affidavit information was not stale by standards Tenth has endorsed in child porn cases. Possessors of child porn are likely to hoard it and keep it for significant periods of time. There was probable cause to believe that Mr. Potts kept images at home, rather than at the elementary schools where he taught. And even if warrant was overbroad by failing to state with particularity the items to be searched on the computer, evidence was admissible based on officers' objective reasonableness in limiting their search to materials connected to child porn when they executed the warrant.

Remand Regarding Voluntariness of Appeal Waiver Ordered

US v. Livingston, -- F.3d --, 2009 WL 3806675 (10th Cir. 11/16/09) - remand for evidentiary hearing to determine whether Mr. Livingston voluntarily waived his right to appeal the denial of his motion to suppress evidence seized from a search of his motel room by entering into a stipulation of the underlying facts for purposes of his bench trial. The stipulations covered all elements of the charged crimes and seemed to amount to unconditional guilty pleas that would waive all non-jurisdictional defenses. Mr. Livingston claimed he was told that he would still be able to appeal the suppression ruling.

Wednesday, November 11, 2009

Venue, Suppression, Sentencing Claims Rejected

U.S. v. Hamilton, 2009 WL 3647929 (11/5/09) (Published) - The 10th finds the evidence sufficient to establish venue in Kansas, which, in turn, depended on establishing the interdependence between the defendant's acts and those of a co-conspirator. The defendant was responsible for overt acts committed before he joined the conspiracy. Mr. Barker had been arrested when he was found with hundreds of pounds of marijuana in Kansas. The defendant agreed to travel to Cleveland to try to collect on Mr. Barker's drug debts to help defray Mr. Barker's bail and legal costs.. This was meant to further Mr. Barker's drug operation, was not a separate conspiracy and was interdependent with Mr. Barker's acts, even if the defendant's participation was a one-time incident, did not directly pertain to drug distribution and the defendant did not profit financially [the defendant felt morally obligated to help out his half-brother].

Really bad suppression waiver news. Under Fed. R. Crim. P. 12(e), if a defendant does not make a particular argument in favor of suppression, the defendant cannot succeed with that argument on appeal because that argument is waived. It cannot even be reviewed for plain error, absent good cause for failing to raise the argument below. The defendant made no effort to show good cause. The defendant's Terry argument below did not preserve an argument that the detention escalated to an arrest requiring probable cause. His contention below that he did not consent to a search did not preserve an argument that his consent was involuntary.

An officer's one-time mention of the defendant's invoking of his right to silence was error but harmless beyond a reasonable doubt, given that it was isolated and the court gave a good curative instruction. The d. ct. correctly included the defendant's drug distribution prior to his joining the conspiracy as relevant conduct. Although his acts were not part of the conspiracy, they were part of the same course of conduct as his offense of conviction. It was the same type of criminal activity. And the evidence supported a leadership enhancement under ยง 3B1.1(a). The evidence suggested the defendant took over running the trip to Cleveland.

Civil Rights Wheelchair Bound Plaintiff Has Claims Reinstated

Rhoads v. Miller, 2009 WL 3646078 (11/5/09) (unpub'd) - The 66-year-old plaintiff stated a claim for relief where he alleged an officer pulled him out of his wheelchair, tipped him over, kicked him in the ribs and stomped on his hands, resulting in dislocation of his elbow.

Unpublished Decisions

U.S. v. Villareal, 2009 WL 3526561 (11/2/09) (unpub'd) - Pro se appellant's filing of IFP motion constituted a timely filing of a notice of appeal, although the motion did not state what judgment the appellant was appealing or to what court he was appealing. The 2255 movant's prior waiver of collateral relief would not be effective if the government had breached the plea agreement containing the waiver. But the government's failure to seek a substantial-assistance downward departure did not violate the agreement because the agreement left a departure motion up to the government unless the government determined the defendant gave substantial assistance. The government did not make that determination.

Bridges v. Yeager, 2009 WL 3601241 (11/3/09) (unpub'd) - The plaintiff stated a claim for relief for excessive force where she alleged that, when she got one of her hands out of her handcuffs to reach for her prenatal vitamins, the officer pushed her down a flight of stairs and put his knee on her back, smashing her head against the ground, while she was face-down trying to protect her unborn child. It was disputed whether the plaintiff swung at the officer and a suspect's noncompliance does not authorize excessive force.

Rhoads v. Miller, 2009 WL 3646078 (11/5/09) (unpub'd) - The 66-year-old plaintiff stated a claim for relief where he alleged an officer pulled him out of his wheelchair, tipped him over, kicked him in the ribs and stomped on his hands, resulting in dislocation of his elbow.

Barrett v. Philpot, 2009 WL 3526492 (11/2/09) (unpub'd) - In a case where the plaintiff was proceeding in forma pauperis, the d. ct. abused its discretion when it dismissed two defendants for lack of service on them without inquiring of the U.S. Marshalls why they had not served those defendants.