Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
People v. Miguel Licona-Ortega
The Colorado Court of Appeals ruled de novo that the exigent circumstances exception to the Fourth Amendment justified a warrantless ping of a defendant’s cell phone.
Miguel Licona-Ortega was identified by witnesses and security footage as the shooter who killed an acquaintance in a Denver-area bar. He fled the scene and police attempted to locate him, first by looking at an address he was connected to, then by requesting his cell phone carrier to ping his cell phone. T-Mobile, Licona-Ortega’s service provider, first denied the request, then agreed to do so after police exhausted other options.
The geographical cell phone ping identified an address on Kenton Street in Aurora, where police found and arrested Licona-Ortega who confessed to the murder.
At trial, Licona-Ortega asked the court to suppress all evidence connected to the cell phone ping including his confession and a police search of his apartment. The trial court denied the motion and found exigent circumstances in the case justified the warrantless ping.
A jury convicted Licona-Ortega of first-degree murder and the trial court imposed a mandatroy sentance of life without parole.
On appeal, Licona-Ortega argued the lower court erred by denying the motion to suppress evidence and that the cell phone ping was a warrantless search.
Neither the U.S. Supreme Court or the Colorado Court of Appeals have decided if pinging a cell phone is a search under the Fourth Amendment. While the 7th Circuit Court of Appeals once ruled pings are not searches, the Colorado Court of Appeals decided two state laws that authorize ping requests assume that real-time location information from cell phones is a product of searches.
Assuming the ping was a search under the Fourth Amendment, the Colorado Court of Appeals then turned to the facts of the case to decide if exigent circumstances justified the search. The exigent circumstances exception requires prosecutors to prove police had probable cause and that the case was so time sensitive that it justified the search.
Evaluating the totality of the circumstances available to police at the time of the search, the Court of Appeals decided it was justified.
The court rejected a handful of other arguments brought by Licona-Ortega and affirmed the judgment and conviction.
Are insurance companies “victims” entitled to restitution despite amendments made in 2000 to the state’s restitution statutes?
Arnold Martinez tried to steal a $6,000 bicycle out of an open garage. The bike’s owner pursued Martinez in his car and Martinez ran into the car’s bumper causing damage to the vehicle.
Martinez pleaded guilty to offenses in another case in exchange for prosecutors dropping charges related to the bike theft. As part of the plea, he agreed to pay restitution for damages caused by the crime.
The prosecutor filed a motion for restitution for $2,393 to cover the cost to repair the car. Martinez objected, arguing that most of the damage wasn’t the result of his actions. The court disagreed, granting the motion and ordering Martinez to pay the victim $500 to cover the insurance deductible and the rest to the victim’s insurer, GEICO.
On appeal, Martinez argued the lower court erred by deciding he was the main cause of vehicle damage and by awarding restitution to GEICO. Under state law, a “victim” entitled to restitution is someone “who has suffered losses because of a contractual relationship with, including but not limited to, an insurer.” Martinex argued that only a policyholder can have a contractual relationship with an insurer, but since GEICO was the insurer, it was not eligible for restitution.
Colorado’s restitution statutes were amended in 2000. While case law prior to 2000 specified insurance companies could be considered “victims” under restitution laws, Colorado’s appellate courts hadn’t conducted a statutory analysis to concretely decide if that could still be the case after the amendments.
The Colorado Court of Appeals disagreed with Martinez’s interpretation. The statute’s plain language, the court held, extends protections to any party that suffers loss connected to crimes. Rejecting his other appeals, the Colorado Court of Appeals affirmed the restitution order.
In a special concurrence, Judge Jerry Jones agreed with the majority’s conclusion but argued that it used the wrong standard to determine if Martinez proximately damaged the car. “The bottom line is that we should treat proximate cause for restitution purposes as a question of fact,” wrote Jones, who believed the appeals court should have reviewed for plain error. The lower court did not plainly err, Jones added, as the majority found.
Brian and Julie Sheehan dissolved their 30-year marriage in 2014. The separation agreement required Brian Sheehan to pay an initial equalization sum and monthly spousal maintenance of $5,300 until Julie Sheehan turned 67. Almost immediately after they dissolved the marriage, the former couple had disputes over the spousal maintenance.
Brian Sheehan attempted to get the monthly amount reduced twice, arguing he was fired from the job he had in 2014 and hadn’t earned as much since. The court rejected both motions.
Between August 2015 and June 2018, Julie Sheehan filed six motions of contempt after Brian Sheehan fell behind on payment. She filed her seventh motion of contempt in 2019, claiming she hadn’t been paid and Brian Sheehan hadn’t met other obligations.
A magistrate judge found Brian Sheehan guilty of remedial and punitive contempt and ordered him to pay the maintenance he owed, an unfulfilled equalization payment and his ex-wife’s attorney’s fees. The judge also remanded him into custody on a no-bond hold until he completed the orders.
Two weeks later, Brian Sheehan admitted he hadn’t made any payments but added he lost his job because the jail didn’t allow him to leave for work. He was re-sentenced to six months in jail to be served in 30-day increments until Brian Sheehan completed the payment or finished paying the full amount.
Brian Sheehan appealed the ruling. He argued the magistrate erred in finding he had an ability to pay based on imputed income and determining he was voluntarily underemployed. He also argues that even if the court used the right criteria to calculate his ability to pay, it erred in its analysis of the criteria. He also challenged the sufficiency of evidence to prove his violation was willful and argued the magistrate improperly conflated the sanctions without adequately distinguishing between remedial and punitive contempt. Finally, he challenged the award of attorney fees.
The Colorado Court of Appeals ruled that when deciding if a party is in contempt for failure to pay support, a court can’t base its finding that the party can currently pay only on a conclusion that they are voluntarily underemployed. But, the court can consider the party’s voluntary underemployment as evidence of a willful violation of the support order for punitive contempt purposes. With that ruling in mind, the Court of Appeals found the magistrate incorrectly found Brian Sheehan in remedial contempt. The magistrate’s findings on punitive contempt weren’t sufficient enough to review, the Colorado Court of Appeals found, and reversed the judgment, remanding for further proceedings.
Board of County Commissioners v. City and County of Denver
When plans were being drawn for Denver International Airport, Denver and Adams Counties entered into an agreement to address airplane noise that would impact Adams County. The 1988 intergovernmental agreement specified, among other things, the maximum noise level permitted by DEN operations and required Denver to pay $500,000 per uncured noise level violation each year. The agreement gives Denver a one-year period to fix each violation before its payment is due. The agreement was written to govern the counties for 50 to 100 years.
Denver agreed to install a monitoring system to track noise levels and note any violations. But in 1988, both counties knew a monitoring system capable of doing this was not developed and they knew that when a system was created, it might not be completely accurate.
In 1991, Denver rejected an initial proposal from an environmental and transportation consulting firm to build the monitoring system and instead asked it to model aircraft noise with a computer program. The program, ARTSMAP, was finished in 1993 and forecasts the noise level of every flight in and out of the airport using real-time data on flight paths and aircraft. The model accounts for other factors like atmospheric absorption, temperature, humidity and ground effects to estimate what noise sounds like at different locations.
Adams County sued Denver in 1992, before the airport opened, and asked for a court order that would compel Denver to install a monitoring system. The consulting firm informed Denver soon after the lawsuit was filed that a different company could develop a system accurate enough to distinguish between aircraft and other noise. The court dismissed the lawsuit without prejudice in 1993 based on a Denver motion that alleged the new system made the complaint moot.
Denver installed a state-of-the-art system, Airport Noise and Operations Monitoring System, in 1995 that’s currently used in more than 200 airports around the world.
ARTSMAP and the monitoring system recorded several noise violations and Adams County sued Denver in 1998 for damages from the uncured violations.
The trial court found Denver was solely responsible for reporting noise levels every year, that Adams didn’t have to perform its own calculations and that Denver was required to pay for each violation recorded with ARTSMAP. While the two systems reported slightly different noise levels, the court found the discrepancy was so small, the data was likely reliable. The counties used these rulings to settle later noise violations reported. After the first three years, Denver only reported data using the ARTSMAP model.
In 2014, Adams County noticed a big discrepancy in the noise levels reported by the two systems. Adams County requested more data from ANOMS, hired an expert to calculate values and found that the two systems no longer produced similar data. From 2014 to 2016 using only ARTSMAP data, Denver reported no noise violations. Adams County contested these reports based on data from ANOMS and after attempts to settle failed, the dispute went to bench trial in 2019.
The trial court found Denver violated the 1988 agreement by only using ARTSMAP to report noise levels since it’s a modeling not a monitoring system. It also rejected Denver’s affirmative defenses and calculated liquid damages owed to Adams County.
On appeal, Denver raised the same affirmative defenses — including alleging that the three-year statute of limitations had expired, Adams accepted just the ARTSMAP filings for several years without complaint and the delay was too long from Adams in filing the lawsuit. Denver argued the lower court erred in dismissing its full array of affirmative defenses. After reviewing the facts of the case, the Colorado Court of Appeals disagreed and upheld the lower court’s judgment.