December 2011 Archives

The holiday season may be a time for giving, but last week the Tenth Circuit Court of Appeals was more interested in taking.

Last Friday, the Tenth Circuit affirmed a Drug Enforcement Administration (DEA) decision to revoke a doctor's controlled substances registration -- and deny all pending requests for renewal or modification. It found that the DEA's decision was not arbitrary or capricious in light of substantial evidence that the doctor was unlawfully issuing prescriptions for controlled substances.

We have an aunt in Oklahoma who marvels at the number of meth lab explosions in the state. Apparently, the masses turn to the entrepreneurial spirit and drug production in a stagnant economy.

Between family accounts of meth lab fires, and a few episodes of Breaking Bad, we’ve subconsciously concluded that the Tenth Circuit Court of Appeals only addresses drug appeals — whether qualified immunity challenges or warrantless searches — and Administrative Practices Act appeals from the Sierra Club.

Since the unreasonable or warrantless search cases tend to have the most interesting facts, we’re reflecting on five of our favorite search appeals from this year. Here’s our top five list of the holdings that could make or break your criminal law clients.

Criminal defense attorneys: When you file a motion to suppress evidence from a warrantless entry, is it just a necessary step in zealous representation? How often do you win? How many times have your motions been rejected based on exigent circumstances?

We feel like the motion to suppress rigmarole must be frustrating, especially in light of the Supreme Court's Kentucky v. King opinion earlier this year. After King, it seems like Keith Hendrix, today's Tenth Circuit Court of Appeals appellant, never had a chance.

The Tenth Circuit Court of Appeals, like many federal courts, thinks grand jury proceedings are serious, and will not save witnesses who don't share that view from themselves.

In a cautionary tale, the Tenth Circuit upheld a criminal contempt conviction against a witness who appeared before the grand jury, but refused to answer even basic biographical questions.

Terry searches, and their subsequent suppression appeals, would be far more interesting had Ivan Rochin won this case before the Tenth Circuit Court of Appeals.

Rochin argued in his unreasonable search appeal that drug paraphernalia recovered from his pockets during a Terry patdown should be suppressed because the searching officer did not confirm through a "tactile investigation" exactly what the objects were before removing them.

The Tenth Circuit did not buy his argument.

Wyoming Governor Matt Mead is leading the charge for a Tenth Circuit Court of Appeals en banc review of the Clinton-era Roadless Rule. The state filed a petition for rehearing on Monday.

In October, the Tenth Circuit ruled that a Wyoming district court abused its discretion in permanently enjoining the Roadless Rule on a nationwide basis because the district court's action was based on the erroneous legal conclusion that Wyoming had succeeded on the merits of its claims.

(Sidebar: Does anyone else hear the term "Roadless Rule" and immediately think of Doc Brown's closing line in Back to the Future? "Roads? Where we're going, we don't need roads." No? So it is just us ...)

Last month, the Supreme Court declined to review the Tenth Circuit Court of Appeals’ Utah highway cross decision. As the Tenth Circuit previously held that cross memorials honoring fallen troopers on Utah highways were unconstitutional under the Establishment Clause, the crosses were set to be removed.

In a last-ditch effort to save the crosses last month, the Utah Highway Patrol (UHP) removed its logo from each of the 14 crosses, and added signs stating that the crosses are private memorials and do not endorse religion.

But is it enough?