Rodney Bynard Johnson was convicted of possession of a firearm by a convicted felon in the District Court for the Western District of Oklahoma and sentenced to fifteen years in prison. He appealed to the Tenth Circuit Court of Appeals claiming that his motion to suppress evidence should have been granted and that his sentence was unreasonable.

Johnson was driving a car late at night with two passengers. He was pulled over by an Oklahoma State Highway Patrol trooper after the officer observed him swerving. He was ordered out of the rental car he was driving and into the police car. According to the officer he immediately smelled marijuana on Johnson’s breath. But according to a video it was nine minutes later before he asked Johnson about the marijuana. The officer left Johnson in the patrol car and got the rental contract out of the car Johnson had been driving. He again smelled marijuana in the car.

The trooper decided to search the vehicle. Along with the marijuana he based the search on the vehicle being from out of state; the lessee or owner of the car was not present; the defendant did not know the actual name of one of his companions ; it was very late at night; the passengers had made unusual movements while the officer had been following the car; and the occupants’ plans were vague. A gun was found on the driver’s seat below a blanket. The Tenth Circuit said that the mere fact that there was an odor of marijuana was enough to search the vehicle.

Johnson challenged the search on appeal by showing incongruities between the officer’s testimony and the video tape as well as between the trial court’s findings and the testimony. But the trial court found the officer’s testimony to be credible and barring a major showing to the contrary the appellate court was bound to accept the trial court’s finding of facts and the facts as being most favorable to the winning side (the government) in the trial court. The important thing to remember from this case is that appellate courts have limited powers. Unless the facts, as found by the trier of fact, are unreasonable the appellate court must accept them as true. A few incongruities or challenges to the witness’ credibility cannot change the duty of the appellate court to accept the facts as found by the trier of the facts ¹.

As far as the sentence, Johnson had three prior convictions for either drug offenses or crimes of violence and the trial court had no choice but to sentence him a minimum of fifteen years under the Armed Career Criminal Act.

The Tenth Circuit Court of Appeals reversed a District Court decision that the failure of counsel to either attend a presentence meeting between his client or to prepare the defendant for the meeting was not incompetence of counsel.

Patrick E. Washington was found guilty by a jury of crack cocaine related offenses. His counsel did not attend the presentence meeting between Washington and the probation officer. Nor did he prepare Washington for the meeting by telling him that his sentence could be increased for relevant conduct. Relevant conduct involves, in this case, crack cocaine related activity other than the specific incidents for which he stood trial. During the meeting with the probation officer Washington told the officer about prior crack cocaine sales. As a result he pushed the quantity up beyond 4.5 kilograms, the maximum for a two level reduction under the 2007 Crack Cocaine Amendments.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his [sic] defense.” The right to counsel is available at all critical stages of the prosecution. The sentencing process is a critical stage and the failure of counsel to be aware of the importance of the nature of relevant conduct and the importance of the probation interview falls below the expected conduct of attorneys in Federal trials. As a result , Washington’s counsel was guilty of incompetence of counsel and Washington was hurt as a result thereof because he was not available for the level discount under the Crack Cocaine Amendments.

A woman called the Albuquerque Police Department complaining that she heard a female neighbor yelling at a young child and beating the child in the neighbor’s back yard. She did not see anything due to a high fence.

Officer Debra Romero responded to the residence. Joseph Lundstrom answered the door. Lundstrom requested identification. Romero pointed to her badge. Romero ordered Lundstrom and his girlfriend, Jane Hibner to leave the house. Lundstrom asked why she was present and told her there was no child in the house. She pulled her gun. ¹ Hibner, the only other person in the house got between Lundstrom and Romero. Romero continued to point her gun at Hibner for a short while. Hibner left the house and was handcuffed by the officers. Lundstrom called 911 to assure himself of Romero’s identity. The operator assured him that Romero was an officer and asked him to exit the house. He did so with his hands raised He was handcuffed injured, and put in the police car. The police searched his house. No child was found. They were released without charges and sued for violations of the Fourth Amendment.

The police filed a motion for summary judgment which was granted and appealed. The defendants claimed that they had qualified immunity. Peace officers have qualified immunity against a civil rights suits unless the plaintiff can show that their constitutional rights were violated and that such rights were clear at the time of the incident. The Tenth Circuit has ruled that for a right to be clear it must be supported either by Tenth Circuit or U. S. Supreme Court precedent. In order to win the plaintiffs had to show that their constitutional rights were violated and that the state of the law was clear at the time of the incident. The Tenth Circuit ruled that the initial detention and the use of the gun was legal. While it was a search it was reasonable in light of the officer’s fear. Checking on the welfare of the child is part of the officers functions “community caretaking functions.” The officer pulled the gun in order to check on the item in Lundstrom’s hand which was a phone not a gun. But the court found that the handcuffing of Hibner, the surrounding of the house, the order for Lundstrom to exit the house, the handcuffing of Lundstrom were clear violations of the law supported by United States Supreme Court and Tenth Circuit precedents and therefore the claim of qualified immunity fails and the lower court decision was reversed. The Tenth Circuit relied upon the lack of probable cause to arrest them and the lack of reasonable suspicion to detain them. The original call said that a woman (and therefore not Lundstrom) was abusing the child. Prior to handcuffing Hibner the police had a chance to verify any suspicions by questioning her and they did not. Also they found no evidence that a child was in the house. When the original caller was told that there was not a child in the house she admitted that she may have been wrong about the location but the police continued to detain Lundstrom and Hibner.

The Fourth Amendment to the Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Generally the exclusionary rule prevents the admission of seized evidence, the seizure of which does not comply with the Fourth Amendment. But the Supreme Court decided in Leon that evidence seized pursuant to a search warrant that failed to comply with the Fourth Amendment was admissible as long as the officers seizing the evidence acted in good faith.

In United States v. Henderson the Tenth Circuit upheld the admission of child pornography, though the search warrant for the computer failed to comply with the Fourth Amendment. The affidavit supporting the search warrant stated that Special Agent Robert Leazenby received information that a computer with a particular Internet Protocol located at the residence of Harold G. Henderson downloaded and shared two videos each of which had a secure hash algorithm (a digital fingerprint) value associated with child pornography. But the affidavit failed to mention how Leazenby found out this information. Therefore the information was not sufficiently valid to meet Fourth Amendment requirements. But in any case since Leazenby acted in good faith in serving the seach warrant in that the search warrant was not devoid of factual support for the finding of probable cause, the evidence was admissible.

The Tenth Circuit Court of Appeals upheld the conviction of Manuel Roach despite the lack of probable cause to support the search warrant for his girlfriend’s house and despite the judge’s failure to determine whether or not the expert had sufficient knowledge to testify about gang culture.

On appeal the defendant objected to the search of this girlfriend’s house on the two grounds. First he said that there was not probable cause to support the search warrant. Second he said that there was an insufficient nexus between the residence and any evidence of criminal activity. The court agreed with Roach on both grounds.

The search warrant was based on Roach’s former membership in the Northside Crips in Wichita. But his last documented membership in the gang was years before the warrant was served and while he admitted a gang lifestyle that too was a year and a half before the warrant. The last evidence of his being involved in drugs was in 2002, five years before the warrant. Based upon this information the court found the evidence stale and therefore the warrant was not supported by probable cause. The only evidence in the affidavit attempting to show a nexus between the residence and criminal behavior evidence was a statement about the residences of fifteen alleged members of the gang. The affiant said:

“[O]fficers have verified that the individuals listed below live at the following addresses, through investigations, which included
checking for utilities information, driver’s license records, real estate records, Wichita Police Department records, tax records, social security records, US Postal Service records, interviews and/or surveillance.”

The court found this statement to be conclusory and it failed to state what methods had been used on the girlfriend’s residence. Thus it did not show a nexus between the residence and criminal evidence.

However under Leon if a search warrant is not supported by probable cause evidence received as a result thereof is admissible if the officer carrying out the warrant does so in good faith. The court found that the officer could have believed that their was probable caused based upon Roach’s long history of participation in the gang and in drugs. Furthermore since there was some evidence that the officers confirmed that Roach lived at the residence the officer search the residence could have believed that a nexus existed. As a result the officer acted in good faith and the evidence was admissible.

In Daubert the Supreme Court ruled that in Federal cases expert testimony is admissible if the judge makes a finding that it is both reliable and relevant. The trial judge did not make the necessary finding but the court found the government’s gang expert’s testimony admissible anyway because the jury could have believed the gang evidence true based upon other evidence. In other words it was harmless error to admit the expert evidence.

Sometimes the law is funny. Here the trial court violated the United States Constitution and the Rules of Evidence. Yet the appellate court found the evidence admissible and upheld the conviction.

The Tenth Circuit Court of Appeals upheld a search of a vehicle in United States v. Parada where the defendant provided no evidence that he had standing to challenge the search of a cooler full of PCP in the vehicle. Norman A. Parada was a passenger in a rented vehicle traveling from Los Angeles to Virginia. He was one of four people in the vehicle. The ability to challenge an illegal search is a personal right and only those who have a possessory or ownership interest in an item can challenge its search. The burden to prove standing is on the defendant challenging the search. Since the defendant provided no evidence of possession of the cooler at the suppression hearing in the trial court the appellate court found, as did the trial, court that he did not have standing to challenge the search of the cooler.

Five people including Parada drove to Los Angeles. Four of them drove back with a cooler in the car which was full of PCP. They were stopped for a traffic violation in Kansas. After the police officer became suspicious he had his dog, Rico sniff the vehicle. The dog alerted on the left side of the vehicle. A search of the vehicle found some marijuana on the left side of the vehicle and the PCP in back. Parada challenged the existence of probable cause for the search. The appellate panel found that the dog sniffing is sufficient to show that “there is a fair probability that contraband or evidence of a crime will be found in a particular place” and therefore probable cause existed to search the vehicle.

Another example of Minor Actions Lead to Mayor Arrest occurred in Kansas. The Tenth Circuit Court of Appeals upheld the conviction of Antonio Orduna-Martinez, for possession of approximately 25 kilograms of cocaine. He was pulled over, while driving, when an officer noted that his Ohio State Buckeyes license plate frame partially blocked his registration decal on his license plate. The decision is not clear on exactly what happened after Antonio Orduna-Martinez was pulled over but officers search the vehicle and found the cocaine in a secret compartment. Mr. Orduna-Martinez will now do 46 months in the Federal pen.

Yesterday, we considered a case decided by the California Supreme Court, Sheehan v. San Francisco 49ers, Ltd which involved the pat search of attendees at San Francisco 49ers games. The pat search was performed at the direction of the 49ers in conformance with directions from the NFL.

Today we look at another search. This time performed by bounty hunters in Oklahoma. In this case, the Tenth Circuit upheld the use of evidence found by bounty hunters while making an arrest. Both cases of course involve searches. But the other significant fact is that both cases involve searches by people who are not state actors, ie. not employed by the government or working at the direction of the government. This is important because the Fourth Amendment only applies to searches performed by state actors.

In United States v. Poe, the Tenth Circuit Court of Appeals found that a search by a bounty hunter was not performed by a state actor and therefore it was not subject to exclusion at trial under the Fourth Amendment regardless of whether or not it was supported by probable cause.

Five bounty hunters, hired by a bail bonds company, surveilled the Oklahoma City home of Kim Wilson, the former girl friend of Aaron Dale Poe who skipped bond in an Oklahoma state case. Wilson left home about 10:30 pm. Two of the bounty hunters followed her to AutoZone where she worked. They questioned her and found out that Poe was at her residence. She did not give permission for them to search her house but she said that Poe planned to sell drugs from the house and that there was a gun in the house.

They returned to Wilson’s house. Three of the bounty hunters watched the front door while the other two watched the back of the house. They saw Chris McGill drive up to the house and approach the back door. He attempted to leave shortly thereafter but he was apprehended by the bounty hunters.

The bounty hunters then arrested Poe. He resisted and one of the bounty hunters was attached by a pit bull. The dog was tased and both the dogs and Poe surrendered.

The bounty hunters found methamphetamine and a nine-millimeter pistol in the residence. They called the police.

Poe was charged with possession of methamphetamine for sale (McGill’s attempt buy methamphetamine was interupted by the bounty hunters)and possession of a weapon by a convicted felon. He moved to suppress the evidence found by the bounty hunters claiming that the search was without a search warrant and therefore in violation of the Fourth Amendment. The District Court rejected his claim on the basis that he did not have standing to object to the search of Wilson’s house.

On appeal the Tenth Circuit found that he had standing since he had a reasonable expectation of privacy. He was a social guest with sufficient ties to the residence. He had a “degree of acceptance into the household” and “an ongoing and meaningful connection to the home.”

But it rejected his claim on the basis that the bounty hunters were not state actors. The bounty hunters were neither state agents nor were they working at the direction of state agents. The court considered two factors in determining whether the bounty agents were working at the direction of state agents.

First, we determine whether the government knew of
and acquiesced in the [individual’s] intrusive conduct. . .Second, we consider whether the party performing the search intended to assist law enforcement efforts or to further his own ends.

The court found that there was no evidence that the bounty hunters were working with the knowledge or acquiescence of government agents. Furthermore it found that their goal was not to help the government, but rather to obtain payment for their own use from the bail bonds agency. Since the bounty hunters were not state actors the evidence that they seized was not subject to suppression for violation of the Fourth Amendment.

Sheehan was decided based upon the California Constitutions right to privacy. The Federal right to privacy is not coextensive to the California right and therefore Poe was based on the Fourth Amendment. The California constitutional right to privacy extends to the acts of private citizen and organizations which are nor necessarily state actors. The Fourth Amendment right is limited to state actors. Thus, while. the search of people attending 49ers games may be illegal under state law, the search of Poe by bounty hunters is legal under the Fourth Amendment.