Government Entities, Case Law Update – Law Enforcement, January 2021
All summaries are written by Heather White and are for informational purposes only.
Bickford v. Hensley
The Tenth Circuit Court of Appeals reversed summary judgment to an officer based on qualified immunity, concluding the officer included false statements in an arrest warrant affidavit on which a judge relied in issuing the arrest warrant for the plaintiff. The court explained that the officer carelessly included nine statements directed to 44 suspects, two of which the officer had no evidence to link to the plaintiff. This case is important for officers to remember that when they are submitting mass search or warrant affidavits for approval to a judge, they need to ensure that each affidavit contains information that relates specifically to each suspect.
Bond v. City of Tahlequah
Officers shot and killed Dominic Rollice. The administrator of his estate brought a § 1983 claim alleging the officers used excessive force against Dominic in violation of his Fourth Amendment rights. The district court granted summary judgment to the officers based on qualified immunity and the Tenth Circuit Court of Appeals reversed, asserting a reasonable jury could conclude the officers used excessive force.
As part of its analysis, the Tenth Circuit focused on when officers create the need for deadly force, rendering the use of that force excessive, and therefore, unconstitutional. The Court began by explaining that three of its prior decisions confirm “the totality of the facts to be considered in determining whether the level of force was reasonable includes any immediately connected actions by the officers that escalated a non-lethal situation to a lethal one” and that the totality of the circumstances includes analysis of all facts from “inception through the moment the officers employed force.”
Analyzing the facts of the case, the court first addressed the severity of the crime, which was a misdemeanor trespass. The officers knew Dominic was the complainant’s ex-husband, he was intoxicated, and the complainant wanted him removed from the property but there was no indication from the body camera video that Dominic was violent or otherwise belligerent at the beginning of his encounter with the officers. The court accordingly concluded the severity of the crime was low, which weighed against the use of force.
The court next analyzed Dominic’s active resistance or evasion of arrest. It explained that because the officers did not intend to arrest Dominic when they first encountered him, he could not have been actively resisting arrest or attempting to evade arrest, which weighed against the use of force.
The court acknowledged the immediacy of threat was the “most important” factor to be considered, and reminded that in making such decisions, it considers four factors: 1) whether officers ordered the suspect to drop a weapon, and whether the suspect complied; 2) whether the suspect made any hostile motions with the weapon toward the officers; 3) the distance separating the officers and the suspect; and 4) the suspect’s “manifest intentions.”
There was no dispute Dominic repeatedly refused to obey the officers’ commands to drop his weapon, and that two of the officers were within eight to ten feet of Dominic, one even closer. However, it was not clear whether Dominic made any hostile movements toward the officers, and while he raised the hammer he was holding above his head, the video shows no “winding up” movements made by Dominic in preparation for throwing it at the officers. Dominic’s statement, “I have done nothing wrong here, man. I’m in my house. I’m doing nothing wrong,” also added to the court’s assertion that “a reasonable jury could conclude Dominic did not make any movements to put the officers in fear of serious physical harm.”
The Court further concluded that the officers could not have reasonably but mistakenly concluded Dominic’s defensive movements were aggressive. It explained, “Dominic had only a hammer rather than a gun or other long-range weapon, was engaging verbally with the officers, and never dropped his left arm from what can be interpreted as a defensive position . . . .” Moreover, he was on his knees angled away from the officers when he again raised the hammer.
The Court finally addressed the argument that the officers’ conduct created the need to use force. It noted the following facts were critical:
- When Dominic declined Officer Girdner’s request to frisk him, Officer Girdner advanced toward Dominic, and Dominic retreated into the garage.
- All three officers followed, cornering Dominic in the garage where he armed himself with a hammer.
- The full encounter, from the request to frisk to Dominic’s collapse on the floor, took less than a minute.
From these facts the court concluded the officers advanced upon an impaired individual, likely escalating the tension and fear. They followed Dominic into an enclosed space and blocked the exit, resulting in Dominic picking up a handy implement to defend himself. And the officers drew their weapons, in response to the individual grabbing a weapon, and fired only after the individual made what the officers perceived as offensive movements made in direct response to the officers’ conduct. The court therefore concluded, “a jury could reasonably determine that the officers . . . unreasonably escalated a non-lethal situation into a lethal one through their own deliberate or reckless conduct.”
It is important to note that the Court did not rule the officers’ actions were unconstitutional, only that a reasonable jury to conclude either way.
Moya v. City of Clovis
While driving on patrol, Detective Munoz spotted Moya, well known by law enforcement, and checked to see if he had any outstanding warrants. When she learned he did, she turned her car around and activated her emergency equipment. Moya fled in response. Detective Munoz pursued Moya on foot, and Officers Gurule, Aguilar, and Aguilar’s police dog Leo, joined the pursuit. Aguilar and K-9 Officer Leo found Moya standing on top of a shed in a backyard. Aguilar told Moya to stop and get off the shed or he would release the dog. Moya, in response, jumped off the shed and fled. Aguilar released Leo and followed both of them. Moya climbed onto the roof of the neighboring house, knowing Leo was below. He jumped into the neighboring yard and ran. Leo leapt over a wall separating the two properties and tracked Moya down. Aguilar followed and found Moya lying face down on the ground with Leo biting and holding him by the left arm. Aguilar released Leo no longer than twenty seconds later and the other officers handcuffed Moya.
Moya filed a civil rights lawsuit claiming Aguilar used excessive force in deploying Leo and Gurule failed to intervene. He also claimed the City was liable for the officers’ alleged misconduct. The district court granted summary judgment in favor of the officers and the City based on qualified immunity. Moya appealed.
The Tenth Circuit Court of Appeals affirmed. It found Moya failed to show error in the district court’s conclusion that, in light of his history of fleeing, being given numerous warnings, and the potential danger to officers and bystanders of a prolonged chase through a residential neighborhood, “deploying Leo was a reasonable choice.” Allowing Leo to pursue Moya was also reasonable because Officer Aguilar “was always close enough to Leo for Leo to be able to hear any verbal commands,” “Leo was not out of Officer Aguilar’s sight for more than ten seconds,” the longest Leo’s bite could have lasted was twenty seconds, and Officer Aguilar released Leo ten seconds after he reached Moya “and immediately upon [] handcuffing.” The Court finished by stating “it was reasonable for . . . Aguilar to wait until other officers were able to handcuff [Moya] before commanding Leo to let go” because of his history of fleeing that night.
United States v. Francisco Cruz
The defendant was stopped for a traffic violation. After obtaining consent to search, the officer found more than ten pounds of methamphetamine in his truck. The defendant moved to suppress the evidence. The district court denied his motion, and a jury later convicted him for possessing the methamphetamine with an intent to distribute it. The defendant appealed the denial of the motion to suppress, and the Tenth Circuit affirmed.
The court reiterated its prior decisions assessing whether a lane deviation is a traffic violation: “the court looks at ‘the particular circumstances present during the incident in question to determine whether the driver could reasonably be expected to maintain a straight course at that time in that vehicle on that roadway,’” including “weather conditions, traffic, road features, vehicle type, and need for the driver to deviate lanes.”
The officers’ video footage showed the defendant’s truck traveling on a nearly empty highway in clear weather conditions, crossing into the exit lane. The defendant offered no explanation why he did not reasonably remain in his lane. Based on that, the court concluded the officer had reasonable suspicion sufficient to stop the defendant for a traffic violation.
United States v. Jose Cruz
In the fall of 2016, Cruz, known on the street as “Chino,” admitted to Detective Koppman to trafficking and selling drugs. Approximately a year later, a confidential informant told Detective Koppman about a person named “Chino” selling large quantities of narcotics, who the confidential informant identified in a photograph as Cruz. The confidential informant also told Koppman he had met Cruz outside of Cruz’s residence at Lansing and Airway to purchase methamphetamine and provided a phone number for Cruz.
On September 5, 2017, Detective Koppman executed a search warrant on another suspect and found a large quantity of methamphetamine. The suspect agreed to cooperate with Detective Koppman as a confidential source. He named “Chino” as his supplier, and when shown a photograph of Cruz, identified Cruz as “Chino.” The confidential source stated he regularly conducted narcotics transactions with Cruz at the intersection of Lansing and Airway and showed Detective Koppman text messages on his phone from Cruz, discussing the amount of methamphetamine that he was ordering from Cruz. The confidential source also provided three different phone numbers used Cruz, including one that matched the number provided by the confidential informant.
Detective Koppman and other officers arranged for a controlled buy between Cruz and the confidential source. Detective Koppman saw Cruz exit his residence, walk out onto the street, and look around. Detective Koppman began to walk up Cruz to speak with him. When Cruz saw the law enforcement officers, he ran back onto his property. Detective Koppman instructed Cruz to stop and get on the ground, but Cruz kept running, eventually into his house. The officers followed Cruz into the house, where they saw him come out of his bathroom with his arm wet up to the elbow. They took him into custody and found a bag of methamphetamine in the toilet. They did not search anywhere else in the home at that time. They read him his Miranda warnings and told him they would obtain a search warrant if he did not consent to a search of his house. He consented, and the officers found drugs and guns.
Cruz filed a motion to suppress evidence, which the district court denied, concluding that the warrantless entry into his home was supported by probable cause for his arrest and justified by two exigent circumstances: the destruction of evidence and hot pursuit of a suspect. The district court denied the motion and Cruz appealed. The Tenth Circuit Court of Appeals affirmed the denial of the motion to suppress. It reasoned:
- Cruz admitted to Detective Koppman in 2016 that had trafficked drugs in the past.
- Detective Koppman obtained specific information from a confidential informant, and corroborated by a confidential source, that that Cruz was currently dealing, including a description of the location of Cruz’s home, Cruz’s phone number and identifying him in a photograph.
- Text messages to and from Cruz discussing the amount of methamphetamine the confidential source was ordering from Cruz.
- Observation of a drug buy between Cruz and the confidential source.
The court specifically rejected the argument that no probable cause for his arrest existed until the controlled buy was completed. It also stated, “While [the confidential informant’s information] was provided one month before Mr. Cruz’s arrest, the information provided suggested that Mr. Cruz’s drug trafficking was ongoing,” and was thus not stale.
As to exigent circumstances, the court explained that because “officers had ample evidence of probable cause to arrest Mr. Cruz for drug trafficking when he was still outside of his home” they “had reason to believe that he possessed drugs and was fleeing with them” when he ran indoors from them.
As to destruction of evidence, the court reasoned:
While a drug buy was not completed, officers reasonably believed that Mr. Cruz went out to the street to engage in a prearranged drug transaction; he appeared at the agreed-upon time and place and appeared to be looking for someone . . . it was logical for the officers to believe that Mr. Cruz had the controlled substance on his person in anticipation of the drug deal. And it was reasonable for officers to believe that Mr. Cruz was going to destroy that evidence . . . when he fled into his home upon seeing the officers . . . .
Key to the court’s decision was also the observation that the officers’ entry was limited in scope to prevent the destruction of evidence they did not create the exigency. They went into the bathroom, where Cruz was, and they did not search anywhere else in the house until they obtained Cruz’s consent. And Cruz was the one who created the exigency of their having to enter his home when he fled from them.
Finally, as to hot pursuit, the court explained Cruz had been outside and ran from the officers into his home as the officers ordered him to stop running and get on the ground. When he did not, their entry into the home was immediate.
United States v. Gomez-Arzate
While conducting routine traffic enforcement, Sheriff’s Deputy Joshua Mora noticed the defendants’ vehicle swerving within the right-hand lane of I-40 and twice crossing over the white shoulder line. He also noticed that the front driver’s side tire appeared to be angled or out of alignment. After pulling the vehicle over, Deputy Mora smelled a strong odor of air freshener at the passenger side window where Mr. Gomez-Arzate was seated. Mr. Martinez-Torres was in the driver’s seat. Deputy Mora tried to explain to the defendants why he pulled them over. Martinez-Torres provided a California driver’s license, a Texas vehicle registration in the name of a third party, and proof of insurance. Realizing there was a language barrier, Deputy Mora radioed for translation assistance from Deputy Mauricio.
While waiting for Deputy Mauricio, Deputy Mora began filling out a warning citation. Martinez-Torres explained that the misaligned tire was due to a previous accident, and he asked Deputy Mora if he wanted to know the “motive” for the trip. Deputy Mora told Martinez-Torres to wait until Deputy Mauricio arrived, which occurred approximately ten minutes into the stop. Deputy Mauricio explained to Martinez-Torres that Deputy Mora had seen the vehicle swerve, and there appeared to be a problem with the left front tire. Martinez-Torres explained that a bent wheel was due to a previous accident. At approximately 11 minutes into the stop, the deputies then asked Mr. Martinez-Torres for permission to check the vehicle’s VIN numbers, which Martinez-Torres granted, and Gomez-Arzate approved. While checking the VIN numbers, Deputy Mauricio asked Gomez-Arzate if he could ask him some additional questions about his travel plans. Gomez-Arzate said “[o]h, yes,” and told the deputies he and Martinez-Torres were traveling from California to Dalhart, Texas, then to Dumas, Texas, both near Amarillo. When asked who owned the vehicle, Gomez-Arzate said it belonged to a man in Dumas, Texas who let them borrow it, and they were traveling from California to Texas, staying three or four days to make a house habitable, and then returning with family.
About 15 minutes into the stop, the deputies told Martinez-Torres they were giving him back his documents, issuing a warning citation for careless driving, and he would not have to go to court or pay anything. Martinez-Torres signed the citation approximately 16 minutes into the stop. As Martinez-Torres began walking back to his vehicle, Mora yelled Martinez-Torres’ name. When he began walking back toward the deputies, they told him “do you understand you’re free to go? But we wanted to ask you some more questions, if that’s okay.” And again, “[d]o you – do you understand that you are – you are free to go?” Martinez-Torres responded yes. The deputies then began asking him questions about their travel plans. Martinez-Torres reiterated their travel plans but this time added he did not know the name of the person they planned to visit. When asked who owned the vehicle, Martinez-Torres said that it was Gomez-Arzate’s, and that they had picked it up in Amarillo and driven to California.
The deputies then returned to the vehicle to talk to Gomez-Arzate. They told him that they gave Martinez-Torres a warning and said, “we told him that he’s free to go, and we’re going to ask you more questions. Do you understand you’re free to go? But we wanted to ask you some more questions, if that’s fine with you.” Gomez-Arzate said he understood, that it was no problem, and told the deputies: they were going to Dumas, Dalhart, and Hartley, Texas, where there was a cattle ranch and they planned to clean a house. He obtained the vehicle from the ranch when his truck broke down. When asked the name of the owner of the vehicle, Gomez-Arzate said that he did not know the owner’s name but knew the owner’s friend, Jackie or Ezequiel.
The deputies turned back to Martinez-Torres and asked if he was responsible for everything in the vehicle. He claimed responsibility for only his clothes and bookbag, and denied having any drugs, weapons, or large bulk currency. The deputies then asked if they could search the car, but Martinez-Torres’ response was inaudible on an audio recording of the incident. Gomez-Arzate claimed responsibility for his bag and a cooler and also denied that the vehicle contained any drugs, weapons, or large bulk currency. Finally, the deputies asked him, “[c]an we check the car and your – your things?” Gomez-Arzate responded, “[y]es, you can check.”
The deputies provided each of the men with a Spanish consent-to-search form, which they signed. The deputies searched the vehicle and told Martinez-Torres that he was free to call his daughter. Approximately 33 minutes after the initial stop, and the deputies began their search of the car, during which they found approximately seven pounds of methamphetamine. Their search lasted 90 minutes.
Both entered a conditional plea of guilty to conspiracy to possess with intent to distribute, reserving a right to appeal the district court’s denial of their motions to suppress. The Tenth Circuit Court of Appeals affirmed, but did conclude the officers’ impermissibly extended the duration of the stop.
First, the court concluded Deputy Mora had reasonable suspicion for the stop based on his observation that the car swerved within its lane and twice touched the solid white line.
The court then went on to analyze the length of the stop in three segments: minutes 0-11 (stop to explanation whey pulled over), minutes 11-16 (checking the VIN numbers to issuing the warning), and minutes 16-33 questioning about travel plans to execution of the consent-to-search forms). The court concluded the “first 11 minutes of the traffic stop were conducted in a constitutionally valid manner,” explaining it was reasonable for Deputy Mora to obtain Martinez-Torres’ driver’s license, the car registration and proof of insurance, and call for an interpreter.
The court concluded that the deputies impermissibly extended the length of the stop when they asked questions about the defendants’ travel plans to search the VIN numbers “because in this particular case the traffic stop had effectively been completed once Deputy Mora had completed the paperwork and Deputy Mauricio had translated the paperwork to Mr. Martinez-Torres.” However, it continued:
there is no indication that Deputy Mora would not have requested (and obtained) consent to ask defendants additional questions. Deputy Mora testified that he had harbored suspicions from the outset of the stop based upon discrepancies in the driver’s documents, the overwhelming smell of air freshener, and the fact that defendants were traveling along a common contraband trafficking route. In contrast, he obtained largely innocuous information while performing the VIN search and briefly questioning Mr. Gomez-Arzate. It seems likely that Deputy Mora would have asked for consent to ask additional questions based on his initial suspicions even without the information he gleaned during minutes 11 to 16.
Moreover, we conclude that both defendants would have given voluntary consent for additional questioning regardless of what occurred during minutes 11 to 16. As the district court found, “[e]ach time the Deputies requested permission to do something, Defendants freely gave consent.”
The court then went on to conclude that the encounter became consensual at this point because Deputy Mora returned Martinez-Torres’ paperwork and told the defendants they were free to leave. Moreover, “the deputies did not brandish their weapons, they were conversational in tone, there were only two or three deputies on the scene — none of which were positioned in a coercive manner, and it occurred in daylight and in public view.” They were “polite and pleasant” and were not “overbearing . . . .” The court went on to state, “Even though we conclude that this was a consensual encounter, we note that the deputies also had sufficient reasonable suspicion to justify the extension of the traffic stop.”
Finally, the court concluded the defendants’ consent to search the vehicle was freely given, as “there is no indication that the deputies had applied coercive measures.” And it outright rejected the objection to the scope of the search as “Mr. Martinez-Torres and Mr. Gomez-Arzate did not provide any limitations on the scope of the car nor did they object to the duration of the search.” Moreover, “Although the deputies may have removed parts of the car, there is no indication that they destroyed or rendered the car completely useless.”
United States v. Ockert
Officer Dailey was driving on a two-lane road when he saw Ockert’s car cross into the oncoming lane of traffic twice and drive 55 miles per hour in a 45-mile-per-hour zone. When Ockert pulled off the road and into the gravel driveway of a private residence, Dailey activated his emergency lights and stopped his patrol car behind Ockert’s. Officer Dailey called for backup and Officer Rexroat responded. Both officers observed through the car window a rifle in the front passenger seat, and Officer Rexroat smelled marijuana near the car. When Officer Dailey asked Ockert whether he had marijuana in the car, “Ockert replied ‘no,’ but then added that ‘[i]f you would’ve said meth or something, [then] maybe.’” (I know, I giggled too.) Later during the stop, Officer Dailey observed what appeared to be narcotics inside of a bag located within a cigarette packet. When he and Officer Rexroat searched inside the car, they seized the bag of narcotics, the rifle in the front seat, and a drum magazine capable of holding 100 rounds of .22 caliber ammunition.
Ockert was indicted for being a felon in possession of a firearm and moved to suppress the evidence obtained during the stop, claiming Officer Dailey lacked reasonable suspicion to stop him, the stop was unreasonably delayed, and the officers lacked probable cause to search his vehicle. He specifically argued that the plain view doctrine could not justify the search because, according to him, the bag of narcotics was not in plain sight and the incriminating nature of the bag was not immediately apparent. After an evidentiary hearing, the district court denied the motion and Ockert appealed, challenging the traffic stop and the subsequent search of his car.
The Tenth Circuit Court of Appeals held, “The district court correctly found that Officer Dailey had reasonable suspicion to initiate the traffic stop,” basing its decision on a Kansas Supreme Court decision articulating what is required to show reasonable suspicion of a violation of that statute. It did not address Ockert’s probable cause and plain-view arguments because he did not properly preserve the issues for appeal.
This decision is important in confirming the Tenth Circuit will look to state law interpretations of whether the elements of a criminal statute have been met in determining reasonable suspicion and, likely, probable cause determinations.
United States v. Powell
Several sheriff’s deputies were conducting surveillance of Powell’s residence for evidence of drug distribution. The residence was a single-wide trailer with an attached garage on a business lot for Anytime Storage, a 24-hour storage facility. It contained a sign stating it was a residence, but customers could submit rent checks for Anytime Storage through a mail drop. The lot was enclosed by a barbed-wire fence with two openings. The officers entered the Anytime Storage property through a main entrance, parked on the east side of the residence, and knocked on what they thought was the front door. When they received no response, one of the deputies traversed a walkway away from the house to a driveway, and then back to the house. While on the walkway, the deputy smelled marijuana near the garage. He stepped onto the driveway and smelled around the garage door, where he smelled marijuana and heard voices inside the residence. He returned to the front door and told the other officers what he smelled and heard. They followed him to the driveway, and they, too, confirmed the smell of marijuana. Based on this information, the officers obtained a warrant to search Powell’s residence. They found over a pound of methamphetamine during the search.
Powell was charged and moved to suppress the drugs, arguing the officers conducted an unlawful search of the curtilage of his home, which led to the smell supporting probable cause for the warrant. The district court concluded the walkway was not curtilage and denied the motion. Powell appealed.
The Tenth Circuit Court of Appeals affirmed, concluding that while the walkway was in close proximity to the residence, there was no enclosure surrounding the walkway, the walkway was used for commercial purposes and was not protected from observation, and the area to the immediate north of the walkway was part of the publicly accessible storage facility. “Because Deputy Cox was able to smell marijuana before transgressing onto the driveway, the officers could have still secured a search warrant based on that information.” Therefore, it did not address whether the driveway was curtilage.
United States v. Quezada-Lara
Officers were looking for Quezada-Lara in connection with an assault on an officer. A few hours after the assault, Quezada-Lara’s girlfriend, Jessica Artega, had reported his car stolen. While conducting surveillance on Quezada-Lara’s address, officers observed a light blue SUV, the same car FBI Special Agent Acee saw pick up Mr. Quezada-Lara after he fled from agents, leave the residence. Agent Acee stopped the car. Artega was a passenger. Acee explained officers were looking for Quezada-Lara, and Artega responded that she stayed at Mr. Quezada-Lara’s home occasionally and she was “50 percent sure” Quezada-Lara was in the house, had a .45 pistol, and told officers Quezada-Lara’s grandfather, to whom she had taken food that evening, was hard of hearing.
She gave Agent Acee a key to the house and accompanied the agents to the house, where they knocked on the front door and windows, calling out to the occupants with no response. When they went to the back of the house and knocked on the back door, they saw the blinds in a window move and Mr. Quezada-Lara’s grandfather, Mr. Lara, look out. He looked “startled.” When Mr. Lara first opened the window blinds, agents had their weapons drawn but lowered the weapons once they saw Mr. Lara. They identified themselves and asked Mr. Lara to come to the back door. Agent Stemo, who is fluent in Spanish, talked with Mr. Lara on the front porch.
Mr. Lara was cooperative and friendly and appeared to understand what Agent Stemo was telling him. Agent Stemo explained why the police were there and asked if Mr. Quezada-Lara was inside. Mr. Lara said that his grandson had been there earlier in the day and taken a shower. He gave agents verbal permission to clear the house to verify whether Mr. Quezada-Lara was there, during which Agent Acee saw drug paraphernalia, including small plastic bags containing residue of what he believed was methamphetamine, on the dresser in the bedroom that Mr. Lara later identified as Mr. Quezada-Lara’s. While other agents were clearing the house, Agent Stemo talked with Mr. Lara on the back porch. His answers made sense and indicated that he understood what was being asked. He also joked with Agent Stemo.
Following the safety clear, Mr. Lara, Agent Stemo, and Agent Acee went into the kitchen and sat at the kitchen table where they continued to talk. Mr. Lara stated he lived at the residence with his daughter and his grandson. Agent Stemo explained to Mr. Lara that agents were there because they believed his grandson had been involved in an incident where he ran over one of their task force officers, and they were looking for drugs or firearms. Mr. Lara said he did not have any guns because his daughter did not like them, his grandson’s bedroom was located by the back door, which he showed to Agent Acee, and that his grandson sometimes slept in a shed in the backyard.
Agent Stemo went over a Spanish language consent-to-search form with Mr. Lara and asked if he had any questions about the form. Mr. Lara stated that he did not. He appeared to Agent Stemo to understand the form, was nodding his head, and never hesitated before signing the form. Mr. Lara signed the consent form and Agent Stemo sat in the kitchen with Mr. Lara for 30 to 45 minutes while the agents searched the home. They discussed who lived there and the fact that Mr. Lara’s daughter had gone to Mexico. Agent Stemo felt Mr. Lara appeared to have his wits about him, never indicated he was suffering from some type of dementia, and never responded to her questions with, “I don’t remember.” During the search, agents found some of Mr. Quezada-Lara’s clothing in the bathroom and two guns in the bedroom.
Quezada-Lara was charged with assaulting, resisting, and impeding a federal officer, and being a prohibited person in possession of a firearm and ammunition. When he testified at a suppression hearing, Mr. Lara could not recall his age, where he lived, why he was in court, or that his grandson was there. He also testified that police had never been to his house and that he did not remember sitting with the police in his kitchen. Mr. Lara’s daughter Rosa testified her father lives at her residence, has his own bedroom, and full access to everywhere in the house. She explained Mr. Lara had been receiving treatment for Alzheimer’s for five years. Quezada-Lara introduced medical records for Mr. Lara’s psychiatrist reporting Mr. Lara suffered from Alzheimer’s dementia and had problems thinking and making decisions.
The district court denied Quezada-Lara’s motion to suppress concluding Mr. Lara had actual authority to consent to search of the house, and that his consent was voluntary and not coerced. Quezada-Lara appealed.
The Tenth Circuit Court of Appeals affirmed the denial of the motion to suppress. It first ruled that Mr. Lara’s consent was voluntary, despite his mental condition. It explained that when assessing whether consent is voluntary despite a claim of incapacity, the issue is whether the impairment was apparent to the officers at the time of the search, rather than at a later date, i.e., the suppression hearing. Here, the evidence at the time of the search was Mr. Lara was “friendly, cooperative, showed no signs of dementia, and seemed to understand what was going on because his answers were responsive to their questions.” There was nothing that showed Mr. Lara had any dysfunction that should have been apparent to the agents the day of the search.
The court also ruled Mr. Lara’s consent was not coerced because:
- While the arrival of the agents in the middle of the night could be more coercive than their arrival during the day, it was outweighed by the totality of the circumstances.
- Quezada-Lara waived the arguments that the officers pointed guns at Mr. Lara and broke the window because he did not making them in the district court.
- Quezada-Lara waived the arguments that agents requested Mr. Lara come to the back porch, yelled for others in the home to come outside, and failed to obtain consent to accompany Mr. Lara into the kitchen because he did not make them in the district court.
- Quezada-Lara waived the argument that agents did not tell Mr. Lara they were searching for guns and drugs because he did making it in the district court.
- He signed a consent to search form that contained a clause discussing his right to refuse consent after reading it with Agent Stemo.
- While 10-12 agents were present at the time of the search, only three were present with Mr. Lara when his consent was requested.
- The agents did not engage in coercive tactics such as physical violence, threats, promises, inducements, deception, trickery, or an aggressive tone. “To the contrary, Mr. Lara was joking with them,” he was “[c]alm and friendly,” and even offered to make them food. He was not handcuffed or physically restrained in any way.
United States v. Ramos-Burciaga
The district court concluded officers conducted a consensual stop and search of Plaintiff at a bus station. The defendant appealed that determination. The Tenth Circuit Court of Appeals affirmed.
The court first concluded the defendant was not seized because no reasonable person in her position would determine she was not free to leave. It explained:
- The officers approached her in a public place with other people present;
- The officer who spoke with her spoke calmly and asked for permission to speak to her rather than demanding she do so;
- The officers were in street clothes, did not display any weapons, and did not touch the defendant or make threatening gestures;
- Neither officer impeded the defendant’s movement;
- One of the officers truthfully told the defendant he was conducting a security check because the bus company did not check passengers’ possessions before they board the buses; and
- There was no language barrier preventing the defendant from understanding the officers’ questions and explanations.
The only two factors that leaned in the defendant’s favor – the officers did not tell her she was free to leave and more than one officer was present during the encounter – did not outweigh the above.
The court next concluded there was no coercion based on the following:
- The interaction occurred in a public place;
- The officers did not threaten, deceive, use an aggressive tone with, or display their weapons during the encounter;
- The defendant’s identification and bus ticket were returned immediately to the defendant;
- The defendant was not seized at the time she gave consent;
- The officer who questioned her truthfully told her his objective was to make sure she did not have “anything illegal” in the backpack;
- The defendant opened the backpack herself and showed the officer its contents.
United States v. Romero
A dispatcher for the Salt Lake City Police Department received a 911 call from a woman reporting she had just seen someone brandish a gun at a man at the Alta Lodge Motel. The caller identified herself as Sarah, provided the police with her phone number, and stated that the offender was her ex-boyfriend, Jordan Romero. She described Romero as a 27-year-old male who “looks white but [is] half-Mexican,” wearing jeans, black shoes, a black shirt with a picture of Marilyn Monroe on it, and a black hat inscribed with the word “Loyalty,” and carrying a black gun with red bandana tape on the handle. She said Romero went to the motel to purchase drugs, and the gun was pulled out during a drug dispute. She also told the dispatcher that Romero and the victim had gone into room of the motel and requested that she be kept anonymous for her safety.
Officers arrived at the motel minutes later and asked two men in the parking lot if they had seen anything. Both stated that they had just arrived and had not seen anything. The officers did not see any shell casings on the ground or anything to indicate that a firearm had been discharged. As they approached the room, they did not hear any arguments or calls for help. The officers knocked on the door, ordered everyone out of the room, and identified Romero as he exited based on the caller’s detailed description. One of the officers detained and handcuffed Romero because he believed that Romero was armed and dangerous. Romero told the officer that he had a 9mm handgun under his left arm, so the officer lifted his shirt and removed the gun.
Romero was charged with one count of possessing a firearm and ammunition as a convicted felon. He filed a motion to suppress arguing the officers violated his Fourth Amendment rights by unlawfully entering the motel room and detaining, arresting, and searching him. Romero appealed arguing the 911 call was insufficient to establish reasonable suspicion that he was engaged in criminal conduct.
Affirming the district court’s denial of his motion to dismiss, the Tenth Circuit reiterated the long-standing rule the “Tips from anonymous informants may provide reasonable suspicion for a seizure if they are reliable.” In assessing that question, courts look at the following factors:
- Whether the informant lacked ‘true anonymity’ (i.e., whether the police knew some details about the informant or had means to discover them);\
- Whether the informant reported contemporaneous, firsthand knowledge;
- Whether the informant provided detailed information about the events observed;
- The informant’s stated motivation for reporting the information; and
- Whether the police were able to corroborate information provided by the informant.
Applying these factors, the court ruled that the informant’s tip, in this case, contained sufficient indicia of reliability to support reasonable suspicion that Romero was engaged in criminal activity. Namely:
- She provided the dispatcher with her name and cellphone number and stated that she was Romero’s ex-girlfriend;
- She informed the dispatcher that she had personally witnessed Romero pull a gun out on the alleged victim;
- She provided detailed information about Romero, including his age, appearance, and location;
- When the officers arrived at the motel, they did not observe anything that called the credibility of the informant into question.
- The officers corroborated both that Romero was in room 11 and that he matched the detailed description provided by the informant before they detained him.
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