Summaries of Selected Opinions, 0619 COBJ, Vol. 48, No. 6 Pg. 72

Position:Vol. 48, 6 [Page 72]
 
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48 Colo.Law. 72

Summaries of Selected Opinions

Vol. 48, No. 6 [Page 72]

The Colorado Lawyer

June, 2019

U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT

No. 17-2146. United States v. Dalton.

03/21/2019. D.N.M. Judge Ebel. Fourth Amendment—Probable Cause.

Police officers responded to a domestic disturbance call that possibly involved gunshots at a residence (the residence) where defendant was located. Officers called for defendant to exit the house, which he eventually did. Based on the report of gunshots and aware that defendant was not allowed to possess firearms due to a previous felony conviction, police obtained a search warrant for the house and executed the warrant soon after defendant exited. They discovered firearms and ammunition. Defendant was charged with being a felon in possession of firearms.

Eight months after defendant's arrest, but before his trial, an officer attempted to stop a car he knew belonged to defendant, but the vehicle sp ed away. A short while later, the officer found the car parked in the alley behind the residence. The officer observed an AK-47 rifle in the front seat. Other officers arrived on the scene, surrounded the house, and called the people inside to come out. Defendant exited the house and said he was not driving the car that evening and did not know who had his vehicle. An officer ran a background check on defendant and learned he was a convicted felon who could not legally possess firearms. As a result, officers obtained a warrant to search the house for weapons.

Before the second warrant was executed, officers discovered another man, Wheeler, in the backyard of the residence. They recognized Wheeler had a warrant out for his arrest for murder. At that point the officers determined that Wheeler had been driving defendant's car that evening. Although officers had no reason to believe that Wheeler had been in the residence that day, and the warrant did not include any information about Wheeler, they executed the warrant and discovered bullets. Defendant was not charged with a crime based on this ammunition evidence, but the bullets were used at defendant's trial to prove he knowingly possessed the firearms and ammunition found during the first search. A jury convicted defendant of being a felon in possession of a firearm.

On appeal, defendant argued that the district court erred by admitting the evidence discovered during the second search, because that search was not supported by probable cause. Here, at the time officers executed the warrant, they lacked probable cause to believe that defendant possessed the gun in his vehicle or that he was illegally harboring firearms inside the house to be searched. Thus, the second search was unlawful. However, the district court's error in permitting the government to introduce the evidence discovered in the second search was harmless. Apart from the evidence from the second search, the government presented strong evidence to show that defendant lived at the house and knew about the guns that were discovered during the first search. Further, the prosecution made limited use of the unlawfully obtained ammunition evidence, and the district court gave the jury a limiting instruction.

Defendant also argued that a prospective witness for him had invalidly asserted her Fifth Amendment privilege. However, the government did not coerce the witness into invoking the privilege; the district court did not err by accepting the witness's decision not to testify; and the government was not required to offer the witness immunity to testify.

Defendant further contended that the district court abused its discretion by allowing the government to show the jury 20 minutes of an hour-long body-worn video of events leading to defendant's arrest and admitting the tape into evidence. The district court did not abuse its discretion in ruling that the...

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