Summaries of Selected Opinions, 0321 COBJ, Vol. 50, No. 3 Pg. 71

PositionVol. 50, 3 [Page 71]

50 Colo.Law. 71

Summaries of Selected Opinions

Vol. 50, No. 3 [Page 71]

Colorado Lawyer

March, 2021


No. 19-2092. United States v. Sanchez.

12/29/2020. D.N.M. Judge Tymkovich. Fourth Amendment Search and Seizure—Reasonable Suspicion—Probable Cause—Fifth Amendment Custodial Interrogation—Voluntariness of Guilty Plea—Sentencing under Armed Career Criminal Act.

A police officer received notice to be on the lookout for a stolen Hyundai in the area. While patrolling a hotel parking lot, the officer noticed an unoccupied Hyundai whose vehicle identification number (VIN) didn't match the VIN associated with its license plate. The officer called for backup, and another officer arrived.

Before the officers approached the vehicle, a Lexus entered the lot and parked next to the Hyundai. Defendant exited the Lexus, retrieved a toolbox from its trunk, and began working on the Hyundai. Defendant was wearing a loose-fitting trench coat. The officers approached defendant and he placed his hands in the coat pockets. Upon questioning, defendant denied exiting the Lexus. When officers requested that he put his hands on his head for a pat-down search, defendant fled. The officers chased and unsuccessfully attempted to tase defendant, and defendant dropped his trench coat in the process of running. As defendant turned to retrieve the coat, the officers tackled him and placed him in custody. One officer retrieved the trench coat and announced that a loaded handgun was in the coat pocket, and defendant stated, "that's why I ran."

Defendant was charged with being a felon in possession of a firearm. He filed a motion to suppress the gun, which the district court denied. The government filed a motion in limine to admit statements made by defendant, which the court granted. Defendant pleaded guilty, reserving the right to contest these rulings. He was sentenced to 188 months in prison under the Armed Career Criminal Act (ACC A) based on three prior felony convictions.

On appeal, defendant contended that the district court erred in denying his motion to suppress the gun because the officers lacked reasonable suspicion for the seizure and probable cause for the arrest, in violation of the Fourth Amendment. First, the facts supported a reasonable inference that the Hyundai was stolen and defendant was either attempting to break into it or was associated with a stolen vehicle, so the officers had reasonable suspicion of criminal activity from the start of their encounter with defendant. And because defendant fled when requested to submit to a pat-down search, no seizure requiring reasonable suspicion occurred Second, the officers had probable cause to arrest defendant based on a New Mexico statute that prohibits fleeing from the police when a person knows police are trying to apprehend him or her and there was reasonable suspicion to apprehend before the flight. Third, the district court did not commit clear error in finding that defendant voluntarily abandoned the trench coat Accordingly, defendant's Fourth Amendment rights were not violated, and the district court did not err in denying his motion to suppress.

Defendant also argued that the district court erred in granting the motion in limine. However, defendant was not subjected to custodial interrogation when he articulated the reason he fled, and a reasonable person in his position would understand that one officer's statement warning the other officer about a gun was not interrogation. Therefore, the district court did not err.

Defendant further contended that his guilty plea was not knowing or voluntary because he wasn't informed of an element of his crime of conviction—that the government was required to prove he knew he was a felon at the time of the incident. But there was overwhelming evidence that defendant knew he was a felon at the time of the incident, so his assertion that there was a reasonable probability he would have gone to trial if he had know not the knowledge-of-status element is implausible. Defendant therefore failed to show plain error.

Lastly, defendant argued that his prior convictions for aggravated assault with a deadly weapon and residential burglary do not qualify as violent felonies under the ACCA. However, clear Tenth Circuit precedent establishes that both crimes are violent felonies for purposes of the ACCA.

The sentence was affirmed.

No. 19-2201. Fenn v. City of Truth or Consequences. 12/29/2020. D.N.M. Judge Tymkovich 42 U.S.C. § 1983—First Amendment Retaliation—Malicious Prosecution—Supervisory Liability—Qualified Immunity.

The City of Truth or Consequences (City) converted a senior citizen community center into a visitor center operated by Spaceport America (Center). The Center was then leased to several...

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