Sunday, May 3, 2020

Tenth Circuit Breviaries

Last week at the Tenth Circuit:

Fourth Amendment

Officers respond to a report of a domestic altercation in a restaurant parking lot. One officer accompanies the girlfriend to the couple's truck so she can retrieve her belongings. Officer tells the couple where to stand, and then, without asking, opens the lid of the camper attached to the back of the truck (where he then sees a bucket of ammunition). Fourth Amendment violation?

Yep. In United States v. Neugin, the Tenth Circuit held that (1) opening the camper and looking in was a search; (2) the fact that the officer was "trying to help" does not render his actions reasonable or mean that the community caretaking exception to the exclusionary rule applies (it doesn't); and the government failed to establish inevitable discovery. The search violated the Fourth Amendment and the district court should have granted Mr. Neugin's motion to suppress.

Sentencing: consecutive v. concurrent

Can a district court impose a federal sentence and then order that it run consecutively to a future federal sentence? Nope, says the Tenth Circuit in United States v. Ramon, such an order is disallowed by 18 U.S.C. § 3584(a):
Imagine Congress allowing what happened here. Obviously, the later sentencing court may well resent the preemptive strike or even just disagree with consecutive time. Suppose that second sentencing court ignores the earlier court’s attempted usurpation and imposes its sentence to run concurrently to the earlier one. What then? A mess, one Congress has avoided.
Unfortunately for Mr. Ramon, his lawyer did not object to this order. His appellate challenge to the order is therefore subject to plain-error review, which he cannot meet, because the error was not "plain" until now.

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