Monthly Archives: August 2010

Red Light Cameras: The Saga Continues

Interesting article discusses how “license plate sprays” and other attempts to conceal license plate photographs are ineffective.

http://articles.moneycentral.msn.com/Insurance/article.aspx?post=1798834

Some “masking” products let us apply a cover or spray to license plates to neutralize the devices.  The spray or cover supposedly reflects the camera’s flash and overexposes the photo, rendering it useless.  However, a new study of some of those products by the Los Angeles Police Department — experts on the “California stop” — shows they don’t work and, in some cases, actually improve the image quality.

“The countermeasures had no effect on plate legibility under dark conditions, with the exception of V-2 (license plate shield), which occasionally caused a slight increase in front-plate legibility in half of the images. … All rear plate images were clearly legible, with no significant difference between the test plate images and the control plate image. A citation could have been issued in all cases,” the study said.

Oh well.  Back to the drawing board . . .

State v. Adams: The WA Supremes On a Hot Roll With Yet ANOTHER Decision re. Illegal Car Searches

“1-2-3!”

You hear this shouted in fight gyms and boxing matches around the world.  It’s a quick, concise statement of one of the deadliest 3-punch combinations in the sport.   It’s a left jab, followed by a right cross and ending with a left hook (consider opposite hands if you’re southpaw).  The jab opens the opponent’s defense and establishes punching range.  The right cross – your power hand – does damage.  The coup de gras left hook should result in more major pain, a knockdown or knockout; especially if ANY of the punches land flush on the chin or temple.  At any rate, somebody is getting hurt.  Or put to sleep.

For the month of August, the WA Supremes issued a 1-2-3 combination with State v. Tibbles, State v. Afana and now State v. Adams; all three decisions upholding the U.S. Supreme Court’s Arizona v. Gant which held that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=822107MAJ

Lat’s talk about State v. Adams.  On May 24, 2006, Deputy Volpe observed Coryell Adams sitting in a parked car outside a casino.  Volpe checked the license plate number and learned that Adams had an outstanding arrest warrant for driving with a revoked license.

Volpe followed Adams as he drove to a Taco Bell parking lot.  Volpe drove onto the same lot, activated her emergency lights, and parked about eight feet behind Adams’ car.  As she stepped out of her patrol car, Adams stepped out from his car, stood near the driver’s side door and began yelling at Volpe, challenging the stop as racial profiling.  After Volpe repeatedly ordered Adams back into his car, Adams “took 4-5 steps away from the car” and stepped into an adjacent parking stall where he continued to yell and wave his arms.  At Volpe’s request, another deputy arrived and Adams calmed down.  He was then placed under arrest.

After Adams failed to identify himself, Volpe frisked Adams and removed his keys and his wallet, which contained documents identifying him as the registered owner of the vehicle.  The other deputy unlocked Adams’ car. After Volpe placed Adams in the back of her patrol car and read him his rights, she searched his vehicle and found a small black bag containing cocaine in the center console.  He was charged with Possession of Cocaine.  The case wound its way into the WA Supreme Court.  During that time, the U.S. Supremes decided Arizona v. Gant, which was alluded to earlier.

Similar to State v. Afana, the State argued the officer acted in “good faith” when arresting Adams.  However, the WA Supremes made short work of the case:

“Our recent decision in Afana resolves this case.  In Afana we rejected the State’s argument that “good faith” reliance on pre-Gant case law constitutes an exception to the exclusionary rule under article I, section 7 of the Washington State Constitution.  We explained the distinction between an officer’s “good faith” reliance on statutes that were subsequently declared unconstitutional to establish probable cause to arrest . . . [B]ecause the State concedes that Gant applies to the search in this case, and because we have declined to recognize a “good faith” exception based on pre-Gant case law in Afana, we reverse the conviction in this case.”

My opinion?  Criminal defense attorneys have reason to raise a glass and toast the WA Supremes.  These decisions are a fitting end to the summer of 2010.  Take notice, prosecutors: Gant and its Washington progeny are here to stay.  These cases won’t be skirted by “exigent circumstances.”  They won’t be distinguished by “good faith.”  Hurray to a new millenium in cases involving car searches and seizures. 🙂

State v. Afana: ANOTHER Awesome Decision re. Illegal Car Searches

The WA Supremes are on a roll.  They decided the warrantless search of a vehicle incident to passenger arrest was unlawful, and there is no “good faith” exception under the Washington Constitution.

http://www.courts.wa.gov/opinions/pdf/826005.opn.pdf

At 3:40 a.m., Deputy Miller noticed a car which was legally parked on a city street in Spokane County.  He became suspicious, parked his cruiser behind the vehicle, shone his spotlight on it, and made contact.  Two people were inside.  The driver said they were watching a movie on his portable DVD player.  Deputy Miller ran warrant checks on both individuals.  He discovered a warrant existed for the passenger, Jennifer Bergeron, for the crime of Criminal Trespass.  He arrests her.

Deputy Miller searched the car and found a black cloth bag behind the driver’s seat.  The bag contained a crystalline substance which looked like methamphetamine.  He also found a glass marijuana pipe, needles, and plastic scales.  Deputy Miller arrests Alfana, the driver.

The case wound up for review before the WA Supreme Court.  in the meantime, the U.S. Supreme Court issed its decision in Arizona v. Gant, 129 S. Ct. 1710 (2009).  There, the Court said that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

The Court reasoned that, pursuant to Gant, nothing justified the search that happened after arrest.  Although the warrant for Bergeron’s arrest gave Deputy Miller a basis to arrest her, he had no reason to believe that the vehicle she occupied contained evidence of her underlying crime, namely, Criminal Trespass.  The deputy also lacked reason to believe that she posed a safety risk because she was already in custody in the backseat of the patrol vehicle.

Furthermore, the fact that the driver, Afana, was unsecured at the time of the search does not justify the search.  This is so because he was not under arrest at the time the search was conducted, and Gant held that “police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search.”  Here, the only arrestee was Bergeron; who was already in the backseat of the police cruiser.

The Court addressed the State’s “Good Faith” exception to warrantless searches.  Historically, this exception allows an otherwise unconstitutional search or seizure if the police officer believes the search was constitutional/reasonable at the time.  Here, the court rejected the State’s “Good Faith” argument because there was no probable cause to conduct the illegal search in the first place.  The evidence was suppressed.

My opinion?  August is a BIG month for handing down post Gant-related decisions (please refer to my blog on State v. Tibbles).  I’m really impressed with how the WA Supremes are handling Gant.  They aren’t chipping away at Gant with BS opinions.  They are, in fact, honoring Gant.  Afana was a unanimous decision, with only one Justice dissenting.  Horray!  🙂

State v. Maddox: Great Decision on Unlawful Vehicle Searches

I’m lovin’ this one.  Evidence found during an inventory search was suppressed, as no statute specifically authorized impounding the vehicle for reckless driving or DWLS 3, the vehicle was not impeding traffic, it was not abandoned, and the driver offered to have his friend pick up the vehicle.

http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/09-30284.pdf

Officer Bonney pulled Neal Maddox over for driving suspiciously.  Upon contact, OfficerBonney noticed the vehicle’s tags were expired and Maddox’s license was suspended.  Officer Bonney placed Maddox under arrest, handcuffed him, and escorted him to the patrol car.  He search Maddox and found $358 cash.  Maddox posed no threat to officer safety and there was no danger of evidence destruction.  Nevertheless, Officer Bonney returned to Maddox’s vehicle, reached insde, and retrieved a key chain.  Hanging on the key chain was a metal vial with a screw top.  Officer opened the vial’s top and found methamphetamine.  He searched the vehicle, found a computer case, and discovered a handgun and more methamphetamine.

The court reasoned the officer’s search of Maddox’s keychain was unlawful.  Since Maddox was handcuffed in the backseat of the car, there was no possibility of Maddox concealing or destroying the key chain and the items contained therein.  There was also no sighting of weapons or threats to use one.

The court also reasoned the vehicle impoundment was unlawful.  The police were not performing community caretaking, the vehicle was not abandoned, impeding traffic, or threatening public safety or convenience.  Also, because Maddox offered to have his friend move the vehicle, the officer did not rightfully consider any alternatives before impounding it.  Consequently, The officer’s impoundment of the vehicle did not qualify as a valid inventory search and violated the Fourth Amendment.

My opinion?  Obviously, I’m pleased.  Some may argue the court wrongfully decided the case because RCW 46.55.113(1)  specifically authorizes an impound when a driver is arrested for Driving While License Suspended (DWLS).  Nevertheless, there were larger issues at stake transcending a mere DWLS.  The officer’s unlawful search of the keychain itself moved this issue beyond statutory obligations imposed on DWLS.

Good decision.

Bellingham Wants Red-Light Cameras

Unfortunately, it had to happen . . .

http://www.bellinghamherald.com/2010/08/12/1566754/holly-forest-streets-one-of-four.html#storylink=omni_popular

The City of Bellingham could install an enforcement camera at Holly and Forest streets, the worst intersection in terms of T-bone crashes caused by drivers running red lights.

Under a proposal by Mayor Dan Pike’s administration, that intersection would be one of four spots where police install automated red-light cameras and issue tickets to violators. From 2004 to 2008, six people were injured in 10 crashes caused by cars going through red lights there. Most crashes occurred when a vehicle ran the light on Holly.

The City Council still must decide whether it wants to OK four red-light cameras and two school-zone cameras. An exact date for a decision hasn’t been scheduled yet. If approved, officials hope to install the cameras by the end of the year.

REVENUE GENERATOR

Other cities report different results in terms of revenue generated by the programs. Bellingham is roughly estimating gross revenue of $500,000 a year, but officials aren’t sure what program expenses will be yet. A Bellingham police traffic unit officer will review all violations before any contractor issues a ticket.

CAMERA LAWS

State law, which lets cities install the cameras, sets the following requirements on their use:

• They can only be at intersections of two arterials.

• They can’t photograph drivers’ faces.

• The photos aren’t available to the public and can only be used by law enforcement for purposes of the traffic violation.

• The locations of cameras must be clearly marked.

• The amount the city pays to the company providing the equipment can be based only on the value of the equipment and services, not a percentage of ticket revenue.

• Tickets don’t go on a person’s driving record.

• It’s presumed the registered owner was driving at the time. But if people state under oath that somebody else was driving at the time, they can avoid paying the ticket.

My opinion?  I totally agree with one person’s comment to the news article. ViewofLeadership said the following:
“On a very long list of very stupid things this city has done, this one ranks in the top 10. If you think traffic is bad now, just wait until people start slamming on their brakes to avoid these cameras.  If any of you doubt that this about revenue and NOT safety, then go view the red-light camera video KING5 produced for it’s program “Up Front, with Robert Mak”. And consider that the company that leases these cameras enters into a REVENUE sharing agreement with the city and as part of that agreement REQUIRES minimum fines and 3-second duration of the yellow light.  This is a scam upon the citizens by the city!”

 

Sigh . . .   🙁

State v. Tibbles: “Exigent Circumstances” for Warrantless Search = Unlawful Search

ECXELLENT opinion.  WA Supremes held the search  of a defendant was not justified by exigent circumstances and the marijuana/paraphernalia evidence obtained as a result of  the search should have been suppressed.

http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=803081MAJ

Micah Tibbles was pulled over following a traffic stop.  During the stop, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’s car.  Though he did not arrest Tibbles or seek a warrant, he searched the car and found the contraband.  Trooper Larsen and the posecutors argued that although they lacked a search warrant, “exigent circumstances” justified the search nonetheless.  Tibbles was convicted of for possession of marijuana and drug paraphernalia.  The case wound up in the WA Supreme Court.

The Court reasoned the Trooper had probable cause to arrest Tibbles based on the odor of marijuana alone under the Plain View Dosctrine.   However, the existence of probable cause, standing alone, does not justify a warrantless search.  “Probable cause is not a recognized exception to the warrant requirement, but rather the necessary basis for obtaining a warrant.”   Hendrickson, 129 Wn.2d at 71.  The Court reasoned that because Trooper Larsen did not arrest Tibbles, and did not have a warrant when he searched Tibbles’s car, the search must be justified by one of our recognized warrant exceptions; such as “exigent circumstances.”

Here’s the law on exigent circumstances: basically, the exigent circumstances exception to the warrant requirement applies where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence. There are five circumstances types of exigent circumstances: (1) hot pursuit; (2) fleeing suspect; (3) danger to arresting officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the evidence.”  However, merely because one of these circumstances exists does not mean that exigent circumstances justify a warrantless search.  A court must look to the totality of the circumstances in determining whether exigent circumstances exist.

Here, the WA Supremes decided the State failed to show that exigent circumstances justified the warrantless search of Tibbles’s car.  Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent.  Additionally, the State failed to establish that obtaining a warrant was otherwise impracticable.  “For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant,” said Justice Debra Stephens of WA Supremes.

Additionally, regarding the safety concerns, the facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles’s actions.  Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight.   Tibbles was alone, was compliant with the  trooper’s requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper  Larsen searched the car and seized the marijuana and drug paraphernalia.  For these reasons, the WA Supremes reversed the WA Court of Appeals which upheld Tibbles conviction.

My opinion?  BEAUTIFUL.  The State’s “exigent circumstances” arguments were totally baseless.  Let’s boil it down: exigent circumstances should be found only where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape, or permit the destruction of evidence.  If these situations do not exist, then neither does exigent circumstances.  PERIOD.

Well done, WA Supremes.  Thank you.