10th Circuit Oral Arguments focus on COVID Prisoner Relief, Police Search

The 10th Circuit Court of Appeals building in Denver, also known as the Byron White building.
On Aug. 17, the 10th Circuit Court of Appeals sided with a Colorado woman who alleged fair debt collection violations against a collection agency that made a single call after receiving her cease-and-desist letter. / Law Week File.

On August 3, the 10th Circuit Court of Appeals will hold oral arguments in a total of six cases, some of which will deal with compassionate relief of prisoners, including a man pleading guilty to possession and distribution of child pornography, due to COVID-19 concerns. Others deal with issues of police searches, and what constitutes suspicion under the Fourth Amendment.

Two cases are specifically of note.

U.S. v. Kevas Ballance

U.S. v. Ballance deals with an allegation that a Kansas police officer violated a suspect’s Fourth Amendment rights by questioning the suspect and finding evidence due to that search. Ballance alleged the information given to a 911 operator relayed to officers about a suspect didn’t constitute enough for the police officers to question him.

Back in 2018, Officer Charles Shell of the Newton Police Department was dispatched to a suspicious activity call reported to 911. An employee of Hibbett Sports store in Newton, Kansas, stated there was someone who left the store five minutes earlier, and attempted to return some shoes allegedly purchased with counterfeit money.

The person described by the employee, later identified as Kevas Ballance, matched a description of a person who previously passed counterfeit bills at the store. The Hibbett Sports employee described the individual as a Black male wearing a white shirt and blue jeans who left in a black Nissan Armada headed north. The employee provided the license number.

Shell observed a black Armadadriven by a Black male in a white shirt, and Shell confirmed the license number with dispatch. A passenger and driver both exited the vehicle, and the passenger was also a Black male in a white t-shirt and jeans. The passenger, identified as Ballance, went into another store, avoiding eye contact with Shell as he approached.

The driver told Shell his name was Joseph Richard and confirmed he visited the Hibbett Sports store. He stated his passenger was trying to return a pair of shoes and identified the passenger as Ballance. When asked about counterfeit currency, Roberts told Shell he should speak to Ballance about counterfeit money.  Around then, Ballance left the store and walked along the street instead of returning to Richard’s vehicle, and a second officer headed for Ballance in his patrol car.

Ballance and the second officer had a conversation about where Ballance was going and why he didn’t return to the car.  The officer then asked if he could look at any bills in Ballance’s wallet. This led to a search of Ballance’s pockets where a counterfeit currency was discovered, and Ballance was arrested. Other counterfeit money was found in Ballance’s shoe.

In his case, Ballance moved to suppress the seized currency on the basis that the officers didn’t have reasonable suspicion to stop him, and his consent to search his pockets was involuntary.

In the court’s analysis, it was determined that while the Fourth Amendment of the Constitution protects the right of people to be secure against unreasonable searches and seizures, an “investigatory detention” must be justified at the inception and be reasonably related in scope to the circumstances.

While that reasonable suspicion doesn’t hinge on any one specific factor, it does hinge on the totality of the circumstances, according to the lower court opinion. Before initiating an investigatory stop, an officer must have an objective basis for suspecting an individual being involved in criminal activity.

“In this case, the officers knew that the caller was an employee at the Hibbett Sports store,” the court wrote in the opinion. “As such, the informant was not entirely anonymous, and the officers had means to discover the identity of the caller by going to Hibbett Sports and speaking with the employee.”

Ballance argued that the information given by the employee to 911 wasn’t sufficient to support a suspicion that he was the individual who passed counterfeit bills, only that Ballance was the person identified to by the employee.

However, the opinion states that when looking at the entire event in totality, Richard’s statements to the police corroborated the story relayed to the officers by the employee of the store. Further, Richard instructed the officers to speak with Ballance about the counterfeit currency. In addition, Ballance’s avoiding eye contact with police, going into a store, and not returning to the vehicle all were activities seemingly reasonably suspicious.

Thus, the motion to suppress was denied by U.S. District Judge John Broomes, and appealed by Ballance.

U.S. v. John Sutton

In this case, a prisoner seeking compassionate release from his sentence due to his underlying health conditions had his case dismissed by the court for lack of jurisdiction due to a reading of law where both the sentencing at the time was fair and correct but didn’t provide express language for the court’s adapting the sentence in light of other circumstances.

John Sutton pled guilty to counts of possession and distribution of child pornography back in 2016. The court sentenced Sutton to two terms of 72-months concurrent imprisonment followed by two concurrent five-year terms of supervised release. He is currently 59 years old, has hypertension and diabetes, and is at a heightened risk for COVID-19. He is projected for release in February 2022.

Sutton is currently incarcerated at FCI Texarkana in Texas, whereas of April 27, 607 inmates tested positive for COVID out of 1,055 tested.  The prison currently has one active inmate case, another active staff case and an inmate death all from COVID.

If released, Sutton plans to live with an adult daughter in Pleasanton, Kansas. He is not represented by counsel in this case, but a Federal Public Defender was appointed to represent indigent defendants possibly qualifying for compassionate release.

Federal courts are forbidden, generally, to modify a term of imprisonment after it’s been imposed, but under the First Step Act of 2018, a defendant can file a motion for compassionate release after fully exhausting all administrative rights to appeal. Or, a failure of BOP to bring a motion on the defendant’s behalf or the lapse of 30 days after the receipt of a request by the warden, whichever is earlier.

While Sutton satisfied those requirements, a section of the act requires the court to find that extraordinary and compelling reasons warrant a reduction of a sentence before it can grant a compassionate release motion, according to the opinion. Sutton asserted that his underlying conditions were reasons enough for reduction.

However, Sutton contracted the coronavirus in November 2020 and according to health records, by December, he recovered, according to the opinion. As a result, the government contended that Sutton’s recovery from COVID meant it was doubtful Sutton established an “extraordinary and compelling” reason for his release.

The court disagreed, stating that Sutton’s records indicate he recovered from COVID, and a possibility of reinfection existed. However, the opinion also notes that Sutton provided no information indicating he engaged in any sort of rehabilitation while in prison.

“Approximately one year into the COVID-19 pandemic, the information on

immunity and risk of reinfection remains limited … Considering the scientific uncertainty, the Court cannot conclude that a defendant’s recovery from COVID-19 precludes a finding that extraordinary and compelling reasons exist,” the opinion states.

But the court decided to dismiss the case without prejudice for lack of jurisdiction. Because sentencing factors complied in the original sentencing, and section 3582 doesn’t authorize the court to modify Sutton’s sentence, the court “must dismiss the motion for lack of jurisdiction.”

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