Monthly Archives: August 2014

State v. Saggers: When Officers Exceed the Scope of Searches Under Terry v. Ohio

Excellent Search & Seizure opinion from the WA Court of Appeals. In short, police officers exceed the scope of a Terry stop when  an informant’s tip is questionably (un)reliable and the exigency of the alleged serious offense has dissipated.
http://www.courts.wa.gov/opinions/pdf/698524.pdf

Police arrived at the home of defendant Andrew Saggers because a 911 call indicated an altercation occurred outside his home involving a shotgun. The 911 call was placed from a payphone. Although the caller provided his name, he was unknown to the police. When police went to the payphone, the caller was gone and the phone was hanging from the cord. The police contacted Mr. Saggers. Although the present situation was neither dangerous nor life-threatening, the police inquired whether Mr. Saggers had a shotgun in the house. He admitted, “Yes.” The police searched his home and found the gun. Mr. Saggers was subsequently charged with Unlawful Possession of a Firearm. At trial, he was found guilty of the charges. The case went up on appeal.

The Court of Appeals held the police officers exceeded the scope of a search under Terry v. Ohio because the informant tip was unreliable and the emergency of any life-threatening situation was already passed. For those who don’t know, Terry v. Ohio 392 U.S. 1 (1968) is a landmark decision by the U.S. Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

Here, however, the Court of Appeals ruled that although it is understandable that officers faced with a 911 call like this one would rightfully pursue an investigation, the 911 Call itself was unreliable. Additionally, the danger had already passed by the time officers arrived at Sagger’s house. Consequently, the officer exceeded the scope of a valid search under Terry v. Ohio. Based on these findings, the Court of Appeals reversed Saggers’ conviction.

Good opinion.

DUI Patrols To Run Through Sept. 1 in Whatcom County

They’re back.

According to the Bellingham Herald, people out partaking in recently legalized marijuana or drinking at end-of-summer barbecues should plan a safe way to get home, as emphasis patrols are looking for intoxicated drivers in Whatcom and Skagit counties.

http://www.bellinghamherald.com/2014/08/15/3803945/dui-emphasis-patrols-to-run-through.html?sp=/99/100/&ihp=1#storylink=cpy

Officers from local police departments, sheriff’s deputies from Whatcom and Skagit counties and Washington State Patrol troopers will have extra patrols to catch drivers under the influence as part of the Drive Sober or Get Pulled Over campaign. The emphasis patrols will run through Sept. 1.”Specifically, we want people to know that marijuana doubles the risk of a fatal crash,” Traffic Safety Commission Director Darrin Grondel said in a news release. “With new retail marijuana stores in the mix, we want to remind the public that prescription and over-the-counter drugs, as well as illegal and recreational drugs, can impair driving ability.”

State v. Martines: More Good Caselaw on Blood Tests Taken After DUI Arrests

Excellent opinion from Division I of the WA Court of Appeals.

After investigating and arresting a suspect for suspicion of DUI, the State may not conduct tests on lawfully procured blood samples without first obtaining a warrant that authorizes testing and specifying the types of evidence for which the sample may be tested.

http://www.courts.wa.gov/opinions/pdf/696637.pdf

The defendant was seen driving his SUV erratically. He veered into another car, careened across the highway, bounced off the barrier, and rolled over. A Washington State Trooper arrived and took Martines into custody. Martines smelled of intoxicants, had bloodshot watery eyes, and stumbled while walking. Trooper Tardiff sought a warrant to extract blood samples from Martines. His affidavit of probable cause stated that a blood sample “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.” He obtained a warrant that authorized a competent health care authority to extract a blood sample and ensure its safekeeping. The warrant did not say anything about testing the blood sample.

Martines’ blood was taken at a local hospital. Then it was tested for the presence of drugs and alcohol. The test results indicated that Martines had a blood alcohol level of .121 within an hour after the accident, and that the drug diazepam (Valium) was also present. Martines had a prior conviction for vehicular assault while driving under the influence. The State charged him with felony DUI under RCW 46.51.502(6)(b)(ii).

The trial court denied Martines’ motion to suppress. He was found guilty at trial. The case went up on appeal. The primary issue on appeal was that testing a blood sample for any purpose is a search for which a search warrant is required. Because the warrant authorizing the extraction of blood did not specifically authorize blood testing of any kind, Martines argued that the results should have been suppressed as the fruit of an illegal search.

The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another:

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

In short, the court held that extracting someone’s blood is a first search, and testing the blood is a second search. The first search – the initial extraction – is totally different than the second search, which is analyzing the blood. Because the second search is so intrusive (blood contains someone’s personal DNA code, pregnancy results, information on diseases, etc.), a second warrant is needed. Consequently, the State may NOT test blood samples without first obtaining a warrant that authorizes testing. The warrant must specifically state the types of evidence they’re looking for.

My opinion? State v. Martines is an interesting decision. I admire the Court of Appeals for making a decision which is consistent with Missouri v. McNeely (discussed in another blog) and going one step further favoring a defendant’s constitutional rights under the 4th Amendment. The opinion prevents police officers from getting a boilerplate search warrant and going on fishing expedictions when they pull people over on suspicion of DUI. The officers must be trained to determine what exactly they’re looking for; be it drugs, alcohol or both. Saying someone has bloodshot/watery eyes, slurred speech and smells of intoxicants does not, by itself, cut it anymore.

Good job, Court of Appeals. I’m impressed.

State v. McNeely: U.S. Supreme Court Says Blood Draws Require a Warrant

In May, the United States Supreme Court handed down Missouri v. McNeely, a semi-controversial decision which now requires police officers to obtain search warrants for blood draws if emergency circumstances – in legal language, exigent circumstances – do not exist.

http://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

The issue decided by the U.S. Supreme Court was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood testing in all drunk-driving cases.

The facts were such that the defendant McNeely was stopped by Missouri police for speeding and crossing the centerline. After declining to take a breath test to measure his blood and alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a blood sample anyway. McNeely’s BAC sample was well above the legal limit. He was charged with Driving While Intoxicated (DWI).

The U.S. Supreme Court held that rather than applying a blanket per se exigency due to the dissipation of BAC in a person’s body, an exigency must also be based upon “special facts” under a case-by-case analysis.

The Supremes reviewed prior caselaw on this subject. In State v. McNeely, the Court pointed out that a diminishing BAC result upon the passa ge of time that happens during a DUI investigation is only one factor that must be considered in determining whether a warrant is required. The Court in McNeely further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. In other words, a warrantless blood draw can still be conducted provided there are other factors articulated by the officer.

My opinion? McNeely is a good, straightforward decision. In short, McNeely holds that when a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. If an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained. The officer must be able to articulate what factors were present that created an exigent circumstance. Also, and importantly, “exigent circumstance” cannot be a result of the officer’s conduct. There must be objective, independent facts articulating why exigent circumstances exist to get a warrant.

Attorney Alex Ransom Dismissed a Client’s Rape & Kidnapping Charges.

Good News! Attorney Alexander Ransom Successfully Dismissed Rape & Kidnapping Charges.

This high profile case involved media attention from the Bellingham Herald and KGMI News radio.

http://www.bellinghamherald.com/2014/04/11/3584183/men-arrested-for-alleged-rape.html

http://kgmi.com/news/007700-teenagers-rape-serves-as-warning-to-parents/

Mr. Zubenko was charged with Rape in the First Degree and Kidnapping First Degree. Both crimes are Class A felonies exposing him to a possible life term in prison (25 years), lifelong registration as a sex offender, restitution to the victim, and potentially $50,000.00 in court fines. On the night of the incident, the alleged victim reported the defendant and another male coerced her into a car and forcibly raped her outside of a house party they all attended earlier. Despite the allegations, the victim’s medical examination (Rape Kit) from the hospital revealed a lack of evidence regarding whether sexual assault happened. Police reports also indicated she was highly intoxicated before, during and after the incident. While the case was pending, Mr. Ransom persuaded the judge to lower Mr. Zubenko’s bail. Later, Mr. Ransom successfully argued a motion to compel an interview with the alleged victim. She refused, however, to cooperate with the investigations. Given the lack of evidence and uncooperative victim, the State dismissed all charges.