Tuesday, March 27, 2012

U.S. v. House, No. 11-4102 (3/23/12) (Ut.) (unpub'd) - A reversal of a suppression denial. Although it established the defendant was armed, the government did not meet its burden to prove the defendant was dangerous so as to justify a frisk for weapons. An officer investigates a woman's complaint that she heard noises coming from her basement. The officer finds no evidence of a forced entry and nothing was missing. As the officer walked towards his car, he noticed the defendant walking towards the woman's house. As another patrol car approached the area, the defendant did an immediate turnaround and walked in the opposite direction he had been walking. From several feet behind, the investigating officer asks the defendant if he can ask a few questions. At first, the defendant continues walking and talking on his cell phone. The officer asks a second time and this time the defendant ended his call and turned around. The defendant kept his left hand in his coat pocket. There was a bulge in the pocket that made it seem like there was something in there in addition to a hand. The defendant denied he had any weapons, but he had a folded, folding knife protruding from his right pocket. Up to this time, the encounter was consensual, the 10th rules.
Then the officer frisks the defendant and finds a gun the defendant wasn't supposed to possess. The 10th assumes, without deciding, that an officer can frisk even if there's no reasonable suspicion ("RS") criminal activity was afoot. Importantly, the 10th says this issue is not resolved in the 10th; the statements about the legality of a patdown in U.S. v. Manjarrez, 348 F.3d 881 (10th Cir. 2003) were just dicta. The officer had reasonable suspicion the defendant was armed because of the knife and the bulge. But there was no indication the defendant was presently dangerous. Nothing suggested the defendant's involvement in a crime [he was walking toward the woman's house, not away from it]. Unlike another case, the defendant did not refuse to remove his hand from his pocket. He was fully compliant. A folded knife is not a danger to an officer 6-8 feet away. Many law-abiding folks would not consider a folded knife a weapon when asked by an officer if they had a weapon. The majority distinguishes this case from a situation where the defendant is detained. Then the defendant might have been dangerous. The government's position affords too little protection for people's Fourth Amendment and Second Amendment [perhaps the key here] rights. Just because you're armed doesn't make you dangerous. Judge Baldock in dissent worries that the decision exposes officers to unreasonable dangers. First, Judge Baldock finds no RS of a crime is needed to frisk someone. Second, he sees officers under the majority's holding consensually approaching only harmless people and avoiding dangerous ones. Third, an armed person is usually dangerous except maybe if the person is a retired police officer or a cooperative citizen licensed to carry a gun. And the court shouldn't second-guess the officer's split-second judgment that the defendant lied when he denied having a weapon, where he obviously had a knife. And knives are dangerous even from 6 feet and guns certainly are. And the officer shouldn't have to ask a person to remove his hand from his pocket before frisking.

U.S. v. Hunt, 2012 WL 936202 (3/21/12) (Okl.) (Published) - The 10th answers the question left open in U.S. v. Hernandez, 655 F.3d 1193 (10th Cir. 2011): a d. ct. may impose a term of imprisonment up to the max established by § 3583(e)(3) each time the defendant violates. There is no aggregation of prior revocation prison terms. The language in § 3583(e)(3) allowing a court to require the defendant to serve in prison "all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release" does not require aggregation by its plain language. The 10th follows the reasoning of U.S. v. Hampton, 633 F.3d 334 (5th Cir. 2011). § 3583(h) prevents indefinite revocation sentencing by calling for aggregating of prison terms in determining how long a supervised release term the d. ct. can impose. Of course, if the defendant receives a life-time term, there could be a problem.

U.S. v. Irvin, 2012 WL 974887 (3/22/12) (Kan.) (Published) - Doubtless you're thinking: "wasn't this case already reported on August 31, 2011?" The answer is: "yes it was, but the 10th granted a rehearing petition.' Not to help the defendant in any way, but to clarify the law on adopted business records. Originally the panel ruled the 10th had already held in U.S. v. Carranco, 551 F.3d 1197 (10th Cir. 1977), that a record prepared by one company and adopted into the records of the witness's company satisfies the business records hearsay exception. But now the 10th holds the government is wrong to suggest that's what Carranco stands for. The Carranco court merely assumed there was such a thing as an adoptive business record exception. But any error in admitting the evidence was harmless error,