10th circuit affirms denial of two separate motions to suppress; affirms rejection of negligence claim in horse riding accident case; affirms assault on a federal officer conviction; and reinstates a federal wa...
Brigham Young University J. Reuben Clark Law School
Chambers appealed the denial of his motion to suppress. The panel affirmed holding the good faith exception applied as the affidavit in support of the search warrant application had sufficient facts to minimally connect the house searched with drug dealing namely a confidential informant who had been reliable in the past gave direction tot eh house to be searched which the officers knew from past experience belonged to Chambers and thus was not based solely on suspicion or hunches.
Knox appealed the denial of his motion to suppress. The panel affirmed. It held Knox preserved the issue and thus review is de novo. Deciding an open question and noting a split of authority among the federal circuits, the panel held that, under the United States Supreme Court Leon decision adopting the good faith exception, the affidavit in support of the warrant application and any facts actually disclosed to the issuing magistrate not in the affidavit define the universe of facts to be considered in the analysis and thus the magistrate judge here erred in taking evidence of other facts known to the officers executing the search warrant which were neither in the affidavit or disclosed at the time of application. It held the good faith exception applied as Knox’s ex-girlfriend was the informer and she identified herself, spoke from personal experience about Knox carrying guns and some of her statements were corroborated; the information was at least sufficiently timely for the good faith exception as it concerned violence within two months and alleged ongoing daily carrying of weapons by Knox a convicted felon; and the location information derived from cell tower information form a few days before the application combined with the statement Knox always carried weapons provided a nexus sufficient for good faith reliance.
Dullmaier v Xanterra Parks and Resorts
Dullmaier appealed summary judgment on her claims against Xanterra arising form a fatal horse riding accident and the award of costs to Xanterra. The panel affirmed. It affirmed on Dullmaier’s negligent misrepresentation claim as her husband was on a family vacation when the accident occurred. It affirmed n her nondisclosure claim, as this cause of action is not recognized in Wyoming. It held the risk that horses will be spooked by wildlife and bolt and other horses will also bolt is inherent in a guided horseback riding tour in the wilderness and thus Dullmaier’s general negligence claim was barred by Wyoming Statutes 1-1-122. It affirmed as to costs holding Xanterra properly field its bill of costs on the approved form and considered the depositions mentioned in the bill of costs during summary judgment.
Jereb appealed his interference with a federal officer conviction and the mental health treatment requirement in his sentence. The panel, 2-1, affirmed. The majority held Jereb invited any error in the district court failing to instruct the jury that an assault is an element in any charge under 18 USC 111 when his attorney agreed to instructions and a jury form that allowed conviction without proof of an assault and this outcome is required under circuit precedent. It affirmed the treatment condition as the district court reasoned Jereb had gone off the rails early in his life, had a temper, the presence report contained Jereb’s history of violence, this history was sufficiently related to the treatment requirement to satisfy the sentencing statute. Phillips dissented arguing that the district court plainly error in not instructing the jury that assault was a required element, this affected Jereb’s rights as he was acquitted of assault and when the proof of assault has been found insufficient by a jury the error should be noticed and the conviction reversed. He also argued there was no invited error here because at the time of trial it was not clear that assault was an element in every 111 case and thus relying on settled circuit law cannot be invited error and there was no inducement of any error here either.
Fernandez appealed the dismissal of her federal law wage claim. The panel reversed and remanded. It held that dismissal was wrong here as Fernandez plead willful violation, was not required to disprove a statute of limitation affirmative defense, and a general assertions of willful violations of federal wage law is sufficient.