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While patrolling Mesa County, Deputy Stuckenschneider observed a black Dodge pickup driving with a missing front license plate. Stuckenschneider phoned Deputy Briggs, alerting her to the situation. A few days prior, Sergeant Beagley had stopped the same car for being incorrectly registered and for displaying invalid license plates. Briggs knew all of this when she received the alert from Stuckenschneider. Briggs informed defendant Amanda Gadberry that she initiated the stop because of the missing front plate. Gadberry told Briggs that the car indeed had a front plate and, upon inspection, Briggs found the missing plate shoved into the grill of the Dodge, although the car was still improperly registered. While all of this was happening, Beagley, Handler Cheryl Yaws, and dog Talu, who is trained to alert to methamphetamine, cocaine, heroin, and marijuana, arrived on the scene. During the time that it took Briggs to run Gadberry’s plates, Beagley asked Gadberry if there was any marijuana in the vehicle. She said no. Shortly thereafter, Talu sniffed around the car and alerted to the driver and passenger doors. With the benefit of that alert, the officers conducted a search of the car, finding a cellophane wrapper of methamphetamine lodged inside a wallet. Gadberry was then charged with (1) display of a fictitious license plate, (2) possession of drug paraphernalia, and (3) possession of a controlled substance. Gadberry moved to suppress the evidence on four grounds: (1) Briggs didn’t have reasonable suspicion to initiate the stop; (2) the stop was unreasonably prolonged; (3) Talu’s sniff was unlawful because Talu was trained to alert on both marijuana, a legal substance, and illegal substances, such as methamphetamine; and (4) Talu’s sniff was unreliable. The trial court denied claims one and two. The trial court did, however, grant Gadberry’s motion to suppress based on claim three. It followed the court of appeals’ decision in Colorado v. McKnight, 2017 COA 93, __ P.3d __, and found that a sniff is a search when a drug-detection dog can alert to both illegal and legal substances. Here, the trial court found no one presented any evidence suggesting that the vehicle had any illegal substances in it or that Gadberry was aware of all the belongings in the car, especially since multiple people had driven the car in the few days before the stop. Therefore, the trial court reasoned that, under McKnight, the officers on the scene needed reasonable suspicion that Gadberry had been involved in criminal activity to initiate Talu’s sniff. Because the officers here lacked reasonable suspicion to deploy Talu, the court granted the motion to suppress and didn’t reach claim four. The State asked for the Colorado Supreme Court’s review, and the Supreme Court determined the officers needed probable cause to deploy Talu. “They didn’t have it. Accordingly, we affirm the trial court’s suppression order.” View "Colorado v. Gadberry" on Justia Law

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Police officers entered Jeremiah Tomaske’s property without a warrant and chased him into his house; Tomaske responded by resisting and allegedly assaulting a police officer. The issue this case presented for the Colorado Supreme Court’s review centered on whether the evidence regarding Tomaske’s actions was properly suppressed. The trial court found that the police officers’ initial entry onto the Tomaske property was a Fourth Amendment violation. Furthermore, the court found Tomaske’s alleged assault “occurred only as a result of the illegal action of law enforcement entering the curtilage and then the residence in violation of the Fourth Amendment.” As a result, the court suppressed all evidence of the alleged assault. Because Tomaske’s decision to resist was an independent act, the Supreme Court concluded the evidence of Tomaske’s alleged criminal acts was sufficiently attenuated from the police misconduct. Therefore, the evidence of what transpired inside the house should not have been suppressed. Accordingly, the Court reversed the trial court’s suppression order. View "Colorado v. Tomaske" on Justia Law

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Police officers discovered a pipe inside of defendant Kevin McKnight’s truck containing what later proved to be methamphetamine residue. McKnight would ultimately be charged and convicted for various drug offenses. On appeal, he challenged the constitutionality of the search that netted the pipe. A divided court of appeals reversed McKnight’s convictions, each member writing separately on the issue of what effect, if any, legalized marijuana in Colorado should have on the constitutionality of the search of McKnight’s truck. The drug-detection dog used to find the pipe, Kilo, was trained to alert on multiple drugs, including marijuana. “Even a hint of marijuana can trigger the same response from Kilo as any quantity of methamphetamine.” The Supreme Court surmised that no matter how reliable his nose, Kilo could render “a kind of false positive for marijuana. He has been trained to alert to marijuana based on the notion that marijuana is always contraband, when that is no longer true under state law. And historically, whether a drug-detection dog might alert on noncontraband drives whether the dog’s sniff constitutes a search implicating constitutional protections.” The Court determined the dog’s sniff arguably intruded on a person’s reasonable expectation of privacy in lawful activity; therefore any intrusion had to be justified by some particuarlized suspicion of criminal activity. The Supreme Court held that a sniff from a drug-detection dog trained to alert to marijuana constitutes a search under the Colorado Constitution because the sniff could detect lawful activity (namely the legal possession of up to one ounce of marijuana by adults aged twenty-one years or older). Furthermore, the Court held in Colorado, law enforcement officers must have probable cause to believe that an item or area contains a drug in violation of state law before deploying a drug-detection dog that alerts to marijuana for an exploratory sniff. Because there was no such probable cause justifying Kilo’s search of McKnight’s truck, the trial court erred in denying McKnight’s motion to suppress. View "Colorado v. McKnight" on Justia Law

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The State appealed the court of appeals’ judgment vacating defendant Richard Anderson’s conviction for attempted extreme indifference murder. Concluding that the universal malice element of extreme indifference murder requires for conviction that more than one person have been endangered by the defendant’s conduct and also concluding that no evidence was offered to prove the defendant’s shooting endangered anyone other than the victim, the court found the evidence insufficient to support the conviction. The Colorado Supreme Court determined the statutory definition of extreme indifference murder did not limit conviction of that offense to conduct endangering more than one person, and because the evidence in this case was sufficient to permit a jury determination of the defendant’s guilt of attempted extreme indifference murder, the judgment of the court of appeals vacating the defendant’s conviction was reversed, and the case remanded for consideration of any assignments of error concerning that conviction not yet addressed. View "Colorado v. Anderson" on Justia Law

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The Eighth Circuit reversed the district court's denial of plaintiff's motion to preliminarily enjoin enforcement of Bel-Nor's Ordinance 983, which restricts the number of signs displayed on private property. The court held that Ordinance 983 is a content based restriction that is not narrowly-tailored to achieve the compelling government interests of government safety and aesthetics. The court held that the ordinance is also facially overbroad; plaintiff was likely to succeed on his First Amendment claim; and the district court erred in denying the motion for a preliminary injunction. Accordingly, the court remanded for further proceedings. View "Willson v. City of Bel-Nor" on Justia Law

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Merck’s drug Fosamax treats and prevents osteoporosis in postmenopausal women. When the FDA approved Fosamax in 1995 (21 U.S.C. 355(d)), its label did not warn of the then-speculative risk of atypical femoral fractures associated with the drug. Stronger evidence connecting Fosamax to such fractures developed later. The FDA ordered Merck to add a warning to the Fosamax label in 2011. Individuals who took Fosamax and suffered atypical femoral fractures sued, claiming that state law imposed upon Merck a legal duty to warn. Merck asserted that the FDA would have rejected any attempt to change the label. The district court agreed with Merck’s pre-emption argument and granted Merck summary judgment. The Third Circuit vacated. The Supreme Court remanded. The Third Circuit incorrectly treated the pre-emption question as one of fact. A state-law failure-to-warn claim is pre-empted where there is “clear evidence” that the FDA would not have approved a change to the label. “Clear evidence” shows the court that the manufacturer fully informed the FDA of the justifications for the warning and that the FDA would not approve a label change to include that warning. FDA regulations permit drug manufacturers to change a label to “reflect newly acquired information” if the changes “add or strengthen a . . . warning” for which there is “evidence of a causal association.” The pre-emption question can only be determined by agency actions taken pursuant to the FDA’s congressionally delegated authority. The question of agency disapproval is primarily one of law for a judge to decide. Judges, rather than juries, are better equipped to evaluate an agency’s determination and to understand and interpret agency decisions in the statutory and regulatory context. While contested facts will sometimes prove relevant, they are subsumed within a tightly-circumscribed legal analysis and do not warrant submission to a jury. View "Merck Sharp & Dohme Corp. v. Albrecht" on Justia Law

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Phillip Bailey appealed the denial of his motion for leave to pursue an out-of-time appeal. Pursuant to a plea agreement, Bailey pleaded guilty in 2007 to the murder of Jess Sharp and an aggravated assault upon Lamar Sharp, for which Bailey was sentenced to imprisonment for life for the murder and a concurrent term of imprisonment for 20 years for the aggravated assault. He did not bring a timely appeal from the judgment of conviction entered upon his plea. More than eleven years later, Bailey filed a motion for leave to pursue an out-of-time appeal. In his motion, Bailey alleged, among other things, that he was denied the effective assistance of counsel in connection with his plea and that his plea was involuntary. Bailey did not allege, however, that he was denied the effective assistance of counsel in connection with his failure to bring a timely appeal. Nor did he allege that his failure to bring a timely appeal was attributable to any other error of constitutional magnitude. The trial court denied his motion without an evidentiary hearing. The Georgia Supreme Court concluded after review of the trial record, that the trial court was right to deny the motion. View "Bailey v. Georgia" on Justia Law

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Lamaris Grier was convicted by jury for two murders and related crimes. He appealed, contending: (1) the evidence was insufficient to support the verdict; (2) trial counsel was ineffective for failing to object to improper testimony and closing argument; and (3) the prosecutor engaged in misconduct. Finding no reversible error, the Georgia Supreme Court affirmed. View "Grier v. Georgia" on Justia Law

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Robert Moss appealed his conviction for murder in connection with the 2010 shooting death of Rosa Mae Brown. Moss challenged the sufficiency of the evidence to support his conviction and contended that the trial court abused its discretion by denying his motion for change of venue. Finding no such abuse, the Georgia Supreme Court affirmed. View "Moss v. Georgia" on Justia Law

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Appellant Tyrone Davis challenged his convictions for felony murder and a firearm offense in connection with the shooting death of Keith Moses. He contended the evidence was legally insufficient to support his convictions; the trial court erred in denying his pretrial motion to suppress his custodial statement to the police; the trial court erred in denying his motion to prevent a document reflecting a co-defendant’s sentence from going out with the jury during deliberations; and he was denied the effective assistance of counsel at trial. Finding no reversible error, the Georgia Supreme Court affirmed. View "Davis v. Georgia" on Justia Law