Wednesday, July 7, 2021

Police seizure and search of a pill bottle

 A Colorado appellate court recently reversed a conviction following the trial court's refusal to suppress evidence (nonprescribed oxycodone pills) obtained as a result of an illegal search of pill bottles found in defendant's car.

Per the 4th Amendment, police search of a seized container's concealed contents must be pursuant to a search warrant or justified by one of the limited exceptions to the warrant requirement.

Mere police observation of an unlabeled prescription pill bottle does not give them probable cause to associate it with criminal activity.  Although they lawfully seized the bottles under the so-called plain view exception to the warrant requirement, police lacked constitutional authority to further inspect (search) them without a warrant.

Because that unlawfully obtained evidence was used to convict defendant, the conviction could not stand and was reversed.

The case is People v. Alemayehu, 2021 COA 69.

Wednesday, February 24, 2021

Are releases and injury waivers enforceable?

In Redden versus Clear Creek Skiing Corporation (no. 19CA0512), the Colorado appellate court recently rejected the case of a Loveland area skier injured while getting off a chair lift.  

Instead, the court upheld the validity of two "exculpatory agreements," a waiver which skier Redden signed nearly a year before the incident when she bought ski boots and had her ski bindings adjusted at defendant Clear Creek's ski shop, and another unsigned waiver consisting of a series of disclaimers listed on the back of her lift ticket.

Though fact specific, the take away is that claim releases, injury waivers, risk disclaimers, liability limits and the like may be enforceable and have ramifications much later, even if contained in the so-called fine print most people read over quickly (if at all).

Monday, January 11, 2021

Unlawful Arrests

We've all heard that police need probable cause to arrest.  What does that mean exactly?  Can't police arrest you anyway?

Probable cause means reason to believe a crime is being (or was) committed and the person arrested committed it.  Absent a written warrant (which takes time, planning and effort - plus probable cause - to get from a judge or magistrate), it is required to make a "lawful" (a constitutionally valid) arrest.

Of course people with badges, uniforms, guns, tasers, clubs, handcuffs, helpful buddies and sheer "official" force -  have the power to arrest ("take into custody") pretty much anyone anytime.  Fighting with police and resisting arrest are not good ideas.  However, if there is no probable cause, evidence obtained (like confessions or admissions, searches, fingerprints, DNA, contraband etc.) generally is subject to being suppressed (excluded) from a related criminal case against the arrested person.  

For example, recently the Colorado Court of Appeals reversed a murder conviction because "the show-up identification and gunshot residue" were obtained as a result of an arrest lacking probable cause following an otherwise valid stop by police.  The case is People v. Oliver, 2020 COA 150.

To be sure, this is small comfort to the person arrested, jailed for who knows how long, hugely inconvenienced, and prosecuted, but typically it is enough to help limit arrests to valid ones.  (Whether there is proof beyond reasonable doubt needed to convict is a whole different story.)  

In more serious cases, including where the suspect is roughed up, or bad faith otherwise is apparent, a civil lawsuit against the arresting agency and personnel, seeking money damages, might be available as a remedy (usually a long shot in any event).

Like the song says, Just because you've got the power, doesn't mean you've got the right.  (Motorhead:))

- Sanderson Law, P.C.  We can help.

Tuesday, November 17, 2020

Update on Colorado criminal record seals (they're easier)

In our 5/12/16 post discussing the difficulty sealing criminal records in Colorado, we anticipated changes to the law making things easier.  

Indeed, in 2019, Colorado made significant changes to the various statutes addressing criminal record seals, overall greatly expanding the ability to seal such records.  It is now possible to (try to) seal more criminal convictions and related records especially at the misdemeanor and low- to mid-felony level.

Court action still is required.  Check out CRS 24-72-701 et seq. for the particulars.  And call or email us here at Sanderson Law, P.C. to help.

Monday, June 29, 2020

What is a good plea bargain?

     Most criminal cases plea bargain rather than proceed through trial.  Typically the defendant agrees to admit (more or less) to having committed some crime or crimes in exchange for a reduced sentence (consequences like jail or prison, fines, classes, a criminal history etc.).  The more serious the charged crimes, or the more extensive the defendant's criminal history, the less sentence reduction - the less of a bargain - should be expected.

     So what is a "good" plea bargain?  Here is a general list of the most common plea agreements in descending order of how good a bargain they can be:

1.  Dismissal of all charges with no sentence terms or conditions.  This is rare mainly because once a case is started prosecutors are loathe to dump it.  An overwhelming lack of evidence usually underlies such a dismissal.  Indeed, typically this is less a plea agreement than an acknowledgement by the prosecution that the case should not have been started in the first place.

2.  Deferred prosecution, sometimes called a diversion.  The prosecution agrees to dismiss the case if the defendant timely completes whatever terms or conditions are agreed upon or otherwise required.  The defendant does not admit to having committed any crimes.

3.  Deferred sentence, sometimes called a deferred judgment and sentence (or "DJS").  This is like a diversion except the defendant pleads guilty (or no contest if ok'd by the prosecutor and the judge) to something.  If he or she timely completes the required terms and conditions, that plea is withdrawn and the case dismissed.

4.  Guilty (or no contest) plea to a lesser crime or crimes with lesser/fewer or minimal sentence requirements.  For example, the defendant admits to having committed a crime less or different than the ones charged in exchange for no jail/prison or reduced jail/prison.  This is by far the most common plea agreement.

5.  Open sentence.  The defendant admits to a lesser or different crime or crimes and the sentence is left up to the judge.  Sometimes a sentence "cap" is agreed to whereby for example the sentence won't exceed a certain period of jail or prison time (subject, as with all sentence terms and conditions, to court approval).

     Again, generally speaking, the higher up this list a defendant seeks to climb, the longer (and more expensive) the case will be.  Every case is different and nothing in the law is guaranteed.  The slightest difference can make all the difference.  The more serious the case or the defendant's history, the fewer options.

Monday, June 15, 2020

Dropping criminal charges

Can the "victim" of a crime "drop the charges?"  Short answer is No.

On TV crime shows, you'll often hear the victim of a crime - one might think for example the person assaulted, or robbed, or defrauded, or hurt by whatever crime was committed - say he or she wants to drop the charges, or doesn't want to press charges.  The TV police and prosecution meekly comply, and the case is dismissed.  This is fiction.

Unlike a civil case - where the plaintiff is the victim (the person claiming to be hurt) and the defendant is the person who supposedly did the hurting, in a criminal case the plaintiff is/are the "People" of the city, state or U.S. government doing the prosecuting.

Look at the caption (the title or heading) on any criminal complaint or indictment or other charging document:  It does not name the person we think of as the victim.  That person is not a real party to the proceedings and has no deciding say if or how the case is commenced, prosecuted or resolved.  That decision rests with the prosecuting attorney's office (heavily influenced by the police etc. investigating the matter or who made the arrest), subject sometimes to court approval.

Although various recent so-called victims rights acts or laws mandate the person hurt be kept apprised of or have some say in the case, those laws generally stop short of granting veto power or even a vote.

In conclusion, people don't drop charges, prosecutors do (and rarely at that).

Wednesday, April 1, 2020

Does a pandemic excuse performance of a lease or other contract?

The short answer is Maybe.

Contract law generally seeks to enforce the parties' intent.  For example, parties to a lease agree that in exchange for paying rent the tenant temporarily is entitled to the premises.  Civil courts are available to enforce the parties' rights and responsibilities in the event of a breach (failure to perform).

"Impossibility of performance" is a defense to a breach of contract claim.  In Colorado for example (and typical of most jurisdictions), the doctrine precludes legal responsibility for breach of contract where (1) the defendant's (say, the tenant's) performance of her promise was made impossible as a result of (among other things) an "Act of God" (natural disaster or similar - like a pandemic?), (2) the tenant could not have reasonably foreseen the event, and (3) the tenant did not cause the event.

What is considered "impossible?"  Impossible here means "the contract cannot be performed physically or without violating the law or without incurring extreme and unreasonable difficulty, expense, or risk of injury or loss to persons or property."  Colorado Civil Jury Instruction 30:24.

If the tenant timely gave notice of (and later as necessary proved) impossibility of performance, it might excuse rent payment but not entitle her to remain on the premises - leaving her with the very practical problem of finding another place to live - or automatically result in the mythical security deposit refund.

A basis "of the doctrine of impossibility is the unconscionability of insisting on strict performance [of the lease or other contract] in the light of radically changed circumstances."  Contracts, by Calamari and Perillo, p. 509 (West 1982).  And in these strange times, Who can say how things will go.

Indeed, every situation is different and consulting an experienced attorney wisely is recommended before proceeding in legal matters.  -Sanderson Law, P.C., 303-444-8846.