Thursday, August 27, 2015

"Hot pursuit" requires "immediate or continuous" pursuit from crime scene

Attocknie v. Smith, 2015 WL 4998275 (8/24/15)(Okla.) - In this 42 USC § 1983 civil rights action, the district court properly denied qualified immunity to officers who were attempting to serve a year-old bench warrant on a man who apparently had not complied with his drug court conditions. Officers mistakenly believed they saw him running into the house, busted in, and immediately shot and killed the man's son. Turns out the guy they were after was not even there. Officers' qualified immunity defense to the unlawful entry claim was based on hot pursuit of a fleeing felon, which the Tenth explains is seriously flawed because hot pursuit requires "immediate or continuous" pursuit of a suspect from the crime scene.

Thursday, August 20, 2015

Reasonable Suspicion Supported BOLO and Stop of Defendant's Truck

U.S. v. Padilla-Esparza, 2015 WL 4774633 (8/14/15) (NM) (published) - The Tenth decides there was reasonable suspicion supporting border patrol agents' issuance of a BOLO (be on the lookout) for Mr. Padilla-Esparza and his truck, which led to a stop, a drug dog alert, and discovery of cocaine. The agents at first concluded Mr. Padilla-Esparza's truck was not the one they were looking for and let him go. They were then informed that his truck was in fact the subject of the BOLO and stopped him again. The factors giving rise to reasonable suspicion justifying the BOLO were: about seven months earlier, a drug dog had alerted to a hidden, non-factory compartment in Mr. Padilla-Esparza's truck when he passed through the checkpoint; a few days before the stop leading to his arrest, he initially failed to declare $2,000 hidden in a camera case; and he carried receipts for $1300 of clothing purchases, yet was able to supply few details about the landscaping job he reported; and he had traveled through the Las Cruces and Alamogordo checkpoints a number of times in the preceding six months. Because the initial stop did not dispel reasonable suspicion, agents were justified in conducting the second stop.

NM Conditional Discharge Counts as being "Under Indictment"

United States v. Saiz, 2015 WL 4901840 (8/18/2015) (NM) (published): Saiz’s sentence for having unlawfully possessed a firearm was enhanced because he was “under indictment” for other state offenses when he committed the federal offense. Specifically, at the time he was on probation for state offenses in New Mexico. After he had pleaded guilty to the state charges, they were conditionally discharged under state law, which meant that if he completed a term of probation they would be dismissed. At sentencing, the court ruled Saiz qualified as a “prohibited person” as defined in USSG § 2K2.1(a)(4)(B). Prohibited persons include anyone described in 18 U.S.C. §§ 922(g) or 922(n). Section 922(n) includes “any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year.” Saiz argued a conditional discharge does not count as being “under indictment.” The panel disagreed.

Saiz argued that an indictment dissipates when the accused pleads guilty in state court and the court imposes probation and a conditional discharge. In other words, the indictment serves no further purpose - after all, if the accused violates probation he will not then be able to litigate his innocence. The court simply imposes a sentence based on his earlier guilty plea. The panel disapproved of this interpretation. Without citing any authority, it declared that an indictment is not extinguished upon a guilty plea or verdict. Instead, it “remain[s] in suspension until the defendant completes his term of probation.” But the panel conceded that no formal process is necessary for a court to adjudicate an accused guilty if he violates the conditions of probation. Still, it concluded - again without citing any authority - that “[t]o the extent that a conditional discharge puts off a finding of guilt, it simply prolongs the life of the indictment.” The panel acknowledged a circuit split on this issue. It decided to side with the 5th Circuit’s opinion in U.S. v. Valentine, 401 F.3d 609, 611 (5th Cir. 2005) rather than the 8th’s opinion in U.S. v. Hill, 210 F.3d 881 (8th Cir. 2000). That being so, this issue is worth preserving, especially considering what the panel had to go through to get around the compelling legal arguments laid before it.

Mere Use of a P2P Network Insufficient to Support 5-level Enhancement

United States v. Barela, 2015 WL 4901785 (8/18/2015) (NM) (published): Child porn defendant gets a new sentencing hearing. More importantly, his imprisonment term will probably be reduced by 5 to 7 years. At sentencing, the district court found Barela had distributed child pornography “for the receipt, or expectation of receipt, of a thing of value.” It therefore, imposed the five level enhancement from U.S.S.G. § 2G2.2(b)(3)(B). Barela argued that US v. Geiner, 498 F.3d 1104 (10th Cir. 2007) requires the government to prove more than that he distributed child pornography through a peer-to-peer network. Here, that is all the government established. The panel agreed and reaffirmed Geiner’s holding that the “mere act of sharing child pornography on a peer to peer network is insufficient to support the enhancement.” The panel said that Geiner established a base line as to what is not enough to prove an accused’s “expectation.”