Tuesday, May 13, 2014

Divided Court Upholds Search of Passenger in Traffic Stop

U.S. v. Garcia, -- F.3d --, 2014 WL 1876264 (5/12/14) - Denial of suppression motion affirmed. Client was a passenger in a car pulled over for a cracked windshield; the driver turned out to have a suspended license. As an intrepid protector of public safety, the officer realized the vehicle could not be safely driven and must be towed. Roswell Police Department regulations required him to inventory the car's contents before towing. By 2-1, with a dissent by Judge Ebel, the court says there was reasonable suspicion justifying the pat-down of Mr. Garcia for weapons--resulting in discovery of ammunition--because: (1) he had exhibited combative behavior during a prior encounter with the officer and had to be tased then; (2) the officer knew of Mr. Garcia's violent criminal history that included an armed robbery; (3) the officer was by himself at the time of the stop, which was at night on a lightly traveled road; and (4) Mr. Garcia acted nervous and put on his jacket when getting out of the car, in which he could have secreted a weapon.

Judge Ebel writes a nice dissent, noting that Supreme Court precedent requires reasonable suspicion that the suspect was both armed and dangerous and while the officer had reasonable suspicion that Mr. Garcia was dangerous, there was not reasonable suspicion he was armed. The judge points to the facts that Mr. Garcia was unarmed during the prior encounter and the occurrence of the stop in a light-traffic area around 7:45 p.m., which does not make the driver more likely to possess a weapon than an average citizen.

Monday, May 05, 2014

Reminder of Rule Change

An announcement from the Tenth Circuit includes a reminder that 10th Cir. R. 46.3, regarding responsibilities of counsel in criminal and postconviction cases, has changed regarding duties of counsel who intend to move to withdraw. The rule states:

10th Cir. R. 46.3 Responsibilities in criminal and postconviction cases.
(A) Prosecution of appeal. Trial counsel must continue to represent the defendant until either the time for appeal has elapsed and no appeal has been taken or this court has relieved counsel of that duty. An attorney who files a notice of appeal in a criminal case or a postconviction proceeding under 28 U.S.C. § 2254 or § 2255, or who has not obtained an order from the district court granting permission to withdraw from further representation prior to the filing of a pro se notice of appeal, has entered an appearance in this court and may not withdraw without the court’s permission. Before filing a proper motion to withdraw under 10th Cir. R. 46.4 counsel must file, at a minimum, an entry of appearance and docketing statement.

New counsel will prepare the Transcript Order Form (and CJA24s) and the Designation of Record.

Thursday, May 01, 2014

Must-Read For Federal Felon-in-Possession Cases Involving Deferred NM Sentences

United States v. Reese, Docket No. 33,950 (NMSC May 1, 2014): On certification from the Tenth Circuit in a federal felon in possession case, the New Mexico Supreme Court held that, upon satisfactory completion of all conditions for a deferred sentence and the resulting dismissal of all charges, New Mexico restores a person's civil rights, including the right to hold public office, by operation of law without the necessity of a pardon or certificate from the governor. The full opinion is available here.