Court did not err in denying motion to suppress parolee's ankle monitor data

United States v. Mathews, 2019 WL 2721266 (10th Cir. July 1, 2019) (CO, published): Mathews was convicted of Hobbs Act robbery and being a felon in possession of a firearm. The evidence used to place him at the robbery was seized from the historical GPS data produced by the ankle monitor he had been directed to wear as he transitioned from prison to the community. On appeal he challenged the district court’s decisions denying his motion to suppress and his request for a Daubert hearing. The panel agreed with those decisions. The court allows warrantless searches without probable cause or even reasonable suspicion by police officers with no responsibility for parolees or probationers when the totality of the circumstances renders the search reasonable. A search of a parolee or probationer authorized by state law satisfies this standard. The search here was authorized by Colorado law and Mathews had no heightened expectation of privacy in the historical GPS data. The historical data was under the Colorado Department of Correction’s control not Mathews. Additionally, there was no need for a Daubert hearing on the government’s GPS data expert because the district court ordered it to provide Mathews with precisely what he asked for - an explanation for why witnesses said Mathews was not in the vicinity of the pawnshops at which the GPS data placed him.

En Banc Court Denies Capital Petitioner's Challenge to Especially Heinous Aggravating Factor

Pavatt v. Carpenter, 2019 WL 2622145 (10th Cir. June 27, 2019): On rehearing en banc, the court reverses the prior panel decision, which had granted relief to the capital habeas petitioner with respect to his death sentence and remanded to the district court for further proceedings. The respondent filed a petition for rehearing en banc. In this decision, the court reverses the panel’s decision holding that the Oklahoma Court of Criminal Appeals did not apply a constitutionally acceptable interpretation of Oklahoma’s especially heinous, atrocious, or cruel aggravator in determining that the aggravator was supported by sufficient evidence on the grounds that the petitioner’s challenge to the aggravator was procedurally barred because it could have been raised on direct appeal. The court also rejected other claims as lacking merit.

Judges Hartz, joined by Kelly and Lucero, dissented. Judge Hartz observed that Oklahoma’s especially heinous, atrocious or cruel aggravator could be applied if the victim was conscious for some period of time, even a few minutes, after the fatal blow and experienced some pain during that time. Thus, “the very act of committing the murder makes one eligible for the death penalty unless the victim was rendered unconscious immediately upon receiving the fatal blow” and therefore “no fair-minded jurist could think that this requirement distinguishes in a principled manner those deserving the death penalty from the many first-degree murderers who do not.” As for the exhaustion issue, Judge Hartz would have found that the state waived the exhaustion defense.

Evicted Occupant Found Guilty of Possessing Firearm Found After His Departure

United States v. Bellamy, 925 F.3d 1180 (10th Cir. 2019) (CO, published): The occupant of the house in which Bellamy lived ejected him 12 hours before the ATF raided the house. Inside a dresser drawer in the room where he stayed, agents found Bellamy’s birth certificate and an unloaded large capacity magazine. In the closet, they also found a 5.56 caliber rifle with a loaded large capacity magazine. Bellamy pleaded guilty to being a felon in possession of a firearm. The district court increased his guidelines base offense level because it found the government had established by a preponderance of the evidence that Bellamy possessed a semiautomatic firearm with a large-capacity magazine that was either attached or in close proximity to the firearm. On appeal, Bellamy said the court clearly erred because he did not possess the rifle when agents seized it many hours after he left. Therefore, there was insufficient evidence to show that when he possessed the rifle earlier, it had a large capacity magazine attached or in close proximity to it. The panel disagreed. The rifle’s location supports an inference that Bellamy possessed both the firearm and its attached magazine before he was ordered to leave the home. The other magazine, in the dresser drawer with his personal effects, further suggests that these magazines belonged to him.