Tuesday, October 13, 2020

Tenth Circuit Breviaries

Fourth Amendment: warrantless entry into home to arrest

Officers have asked a confidential source to set up a buy from a man they suspect of dealing drugs. The officers decide to approach the man right before the buy and try to "flip" him on a bigger target. Upon seeing the officers, the man flees into his own home. The officers follow. They find the man inside with his arm wet up to the elbow, and a bag of methamphetamine floating in the toilet. They secure consent to search, and seize the bag from the toilet as well as more drugs and guns that they find in the house. Fourth Amendment violation? Nope. Probable cause to arrest + exigent circumstances = constitutional warrantless entry. Here, there were two exigent circumstances: the likelihood that a fleeing drug dealer is about to destroy evidence, and hot pursuit. The case is United States v. Cruz.

Fed. R. Evid. 1002: "best evidence" and transcripts of recordings as substantive evidence

In United States v. Chavez, the Tenth Circuit reversed Mr. Chavez's methamphetamine-distribution convictions because the district court erroneously admitted purported transcripts of recorded Spanish- (and some English-) language conversations for substantive purposes in lieu of (not just in addition to) the recordings themselves. A couple of takeaways:

The phrase "best evidence rule" is "somewhat of a misnomer." The rule isn't about which evidence is qualitatively best or most useful to the jury. Instead, it might be more aptly called the "original document rule."

When a party seeks to prove the contents of a recording via transcripts, the best-evidence rule is triggered, and the party must secure the admission of the original recordings themselves. There is no foreign-language exception to the rule.

Nonconstitutional harmless error

Appellate lawyers should also read Chavez for a deep dive into the government's burden of persuasion on the question of nonconstitutional harmless error. 

Supervised-release condition: possession of sexual materials

The district court plainly erred when it imposed a special condition of supervised release banning this child-pornography defendant from possessing "sexually oriented" or "sexually stimulating" material without first making required findings. United States v. Koch. And footnote: this condition might be unconstitutionally overbroad in any case (though that issue wasn't raised here). See, e.g., Madame Bovary.

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