New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

          The Tenth Circuit affirmed the conviction of a man for child sexual abuse after deciding that the trial court correctly admitted evidence of a 1995 conviction for sexual assault of a minor.  You can read the opinion here:  http://www.ca10.uscourts.gov/opinions/09/09-8079.pdf

           In United States v. Batton, 2010 U.S. App. Lexis 8509, the defendant was convicted of taking a fourteen year old boy to Chicago and sexually assaulting him.  The defendant appealed his conviction and complained that the trial judge should have excluded evidence of a 1995 conviction for child molestation.  The Tenth Circuit examined Federal Rule of Evidence 413 and held that the district court properly admitted evidence of a conviction for a similar sexual assault in 1995.

           Typically, evidence of prior acts that are similar to the act a person is accused of are excluded from evidence.  Federal Rule of Evidence 403(A).  However, Rule 413 is directed specifically toward defendants being prosecuted for sexual assault.  Rule 414 allows admission of prior acts in child molestation cases.  The reasoning for the rules, as the Court explained, is that evidence other than testimony is many times unavailable in prosecutions of child molestation cases and child molestation is often a repeated act.  As the Tenth Circuit stated:

As we noted in United States v. Enjady, 134 F.3d 1427 

(10th Cir. 1998), Congress enacted these rules because these types of cases often 

raise questions regarding the victim’s credibility and a defendant’s prior conduct 

can be especially probative.  Id. at 1431.  Additionally, the rules are “based on the 

premise that evidence of other sexual assaults is highly relevant to prove 

propensity to commit like crimes.”  Id.  

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          The Tenth Circuit affirmed the conviction of a man for child sexual abuse after deciding that the trial court correctly admitted evidence of grooming behavior of predator abusers.  You can read the opinion here:  http://www.ca10.uscourts.gov/opinions/09/09-8079.pdf

           In United States v. Batton, 2010 U.S. App. Lexis 8509, the defendant was convicted of taking a fourteen year old boy to Chicago and sexually assaulting him.  The defendant appealed his conviction and complained that the trial judge should have excluded testimony from an expert about "grooming" behavior of predatory child abusers.  The Tenth Circuit permitted the following testimony:

Dr. Heineke testified that sex offenders are generally not strangers to their 

victims and their families but are more often than not close family members, 

friends, or well-respected individuals in a community who often use their 

positions to groom their victims into trusting them.  He also informed the trial 

court that many lay persons carry a common misconception that sex offenders are

only strangers or fit some misconceived criminal caricature.

The Court went on to explain that other courts have allowed similar testimony to explain how sexual predators develop a trusting relationship with their victims.

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          Law enforcement likes consent to search a home.  With consent to search a home, law enforcement does not need to apply for a search warrant.  The law prefers search warrants, but allows consent when "freely given".

          In USA v. Fox, 2010 U.S. App. Lexis 5804, the Tenth Circuit reversed a felon in possession of a gun conviction because officers illegally searched a defendant's home based upon the defendant's wife's consent to search the home. The problem for the police was that the consent was obtained after an illegal detention of the wife.  The full opinion can be read here: ca10.washburnlaw.edu/cases/2010/03/09-5131.pdf

          The Tulsa police arrested Mr. Fox outside his home for an outstanding warrant.  When Mrs. Fox arrived home, she stopped in the street and asked the officer what was going on.  One officer hopped into the passenger side and told Mrs. Fox to pull into the parking lot of a local convenience store.  Once there, the officer checked Mrs. Fox's license and checked her for outstanding warrants.  The officer then conducted a "consensual" search of Mrs. Fox's car and found an illegal drug - likely methamphetamine.  A that point, the officer told her that he had bigger fish to fry - Mr. Fox.  The officer asked for consent to search the family home.  Mrs. Fox said "yes".  The officers from Tulsa searched the home and found a shotgun.  Mr. Fox was a convicted felon.

          The opinion focuses on whether Mrs. Fox was seized when the officer hopped in her car and directed her to another location.  The Tenth Circuit held that, indeed, Mrs. Fox was seized and that there was no legal basis for the seizure.  Thus, the consent resulting during the illegal seizure was, as a matter of law, coerced or not "freely given".

          For the practitioner, the Tenth Circuit re-stated the factors it considers when deciding whether a seizure occurs:

In determining whether an individual has been seized, we have considered several factors, including:

(1) the threatening presence of several officers; (2) the brandishing of a weapon by an officer; (3) physical touching by an officer; (4) aggressive language or tone of voice by an officer indicating compliance is compulsory; (5) prolonged retention of a person's personal effects; (6) a request to accompany the officer to the police station; (7) interaction in a small, enclosed, or non-public place; and (8) absence of other members of the public.

United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir. 2009). No single factor is dispositive, and this list is not exhaustive. Id. at 1138. Another relevant factor that suggests an encounter is not consensual is whether the officer advised an individual that she is free to leave. United States v. Ledesma, 447 F.3d 1307, 1314 (10th Cir. 2006).

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What makes a seizure unreasonable when interpreting the Fourth Amendment to the United States Constitution?  How should reasonable be interpreted at the summary judgment stage, for the purposes of determining whether a police officer is entitled to qualified immunity? Recently, the United States Court of Appeals for the Tenth Circuit significantly clarified competing doctrines in this area, releasing an opinion authored by Judge Tymkovich in the case of Robert and Mary Fisher v. The City of Las Cruces, 2009 U.S. App. LEXIS 22825 (10th Cir. N.M. Oct. 19, 2009).

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The decision in Danny Manzanares v. Sean Higdon, 07-2156, an officer of the Albuquerque Police Department, is a major victory for the rights of citizens being interrogated by the police in their own homes. The 7 yr. old case was brought by Dennis Montoya of Rio Rancho, New Mexico.

Danny Manzanares first consented to the officers entering his home to investigate allegations of rape made against a co-worker and friend, Miguel “Rick” Maestas. Danny later revoked consent, commanding the officers to leave and stop asking him questions.  Instead of leaving, the officers arrested Manzanares, who was neither a material witness nor accessory to the crime of rape, but merely stopping short of informing on his friend’s address.

Continued ...

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In a recent, split decision by the United States Court of Appeals for the 10th Circuit, the Court reversed a lower court’s judgement against Sylvia Avila, a Hispanic girl, 13 years old at the time of the incident.  The decision in Glenda Sherouse and Sylvia Avila v. Suzanne Ratchner, et al., No. 08-2105, was written by Circuit Judge McConnell.  The case and appeal was brought by Mary Y.C. Han, Paul J. Kennedy, and Caren I. Friedman for the Plaintiffs-Appellants, in a hard-fought case spanning years. 

The wrongful arrests of the teenage girls arose after three armed robberies, one of which occurred in an Albuquerque Shoes on a Shoestring, a store known for its quality shoes, priced within grasp of the reasonable.  However, because there was enough probable cause supporting the jury’s verdict against Sylvia’s African American friend, then 14 -year-old Glenda Sherouse, the district court denied Sherouse’s Motion for Judgment as a Matter of Law.  Civil Rights attorneys are sedulously scouring the opinion, in order to understand its doctrine and reasoning.
      
Contd ...

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On January 27, 2009, an Albuquerque jury returned a verdict in a wrongful arrest claim against a City of Albuquerque police officer in the amount of $1000. 

In his claim, Mr. Richard Mora of Albuquerque stated that Albuquerque police officers unlawfully ordered him from his home and then one officer unlawfully patted him down. The justification offered for the pat-down from the Albuquerque police officer was that Mr. Mora was telling the officer that he was going to sue them and he was looking at him in an angry manner.

The District Court agreed that the officer had no cause to attempt a pat-down search of Mr. Mora. The law was clearly established that the officer needed some information that Mr. Mora was armed and dangerous before the officer could lay hands on Mora. Mr. Mora was gratified that his lawsuit resulted in a victory for him and helped solidify the law in the area of police/citizen encounters.

The City of Albuquerque has appealed the judgment to the Tenth Circuit Court of Appeals.

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