Sunday, November 24, 2019

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Preserving sufficiency issues, both at trial and on appeal

In United States v. Leffler, the Tenth Circuit reminded us that it will consider a sufficiency argument forfeited (and subject to plain-error review on appeal) if it is different from the sufficiency argument made during a Rule 29 motion at trial. And it will consider the argument waived (and not reviewable at all) if appellate counsel does not argue it under the plain-error standard.

Let us consider ourselves warned.

Fourth Amendment/Fifth Amendment: consent

In United States v. Armando Martinez (unpublished), the Tenth Circuit reversed a district court order suppressing evidence, finding that an encounter between Mr. Armando Martinez and a Border Patrol agent was consensual. That encounter included some version of the following questions, asked in a conversational tone while the agent was standing about three feet away:

Image result for border patrolGood morning, I'm a Border Patrol agent.
Are you a United States citizen?
Are the people in your car your family?
Can I talk to them?

These questions, under the totality of other circumstances discussed by the Court, did not render the encounter a seizure.

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