Monthly Archives: March 2015

Tribes Free To Prosecute Non-Indians for Certain Crimes

Bellingham Defense Attorney, Domestic Violence, Due Process, Jury Trial, law enforcement, misdemeanor, police, Race & Law, Search and Seizure, Tribal Courts, Violent Crime,

Native American Women ilustration

The Skagit County Herald reported that American Indian tribes that meet certain criteria now have the authority to prosecute non-Indians for a limited set of domestic violence crimes, a shift supporters hope will reduce the high rate of violence on reservations.

Apparently, three tribes in Arizona, Oregon and Washington state have exercised that power for more than a year under a pilot project approved by the U.S. Department of Justice. Together, the tribes have brought more than two dozen domestic violence cases against non-Indians who live or work on their reservations, according to the National Congress of American Indians. In Washington, the Tulalip Tribe was approved as part of the pilot project in February 2014.

A 1978 U.S. Supreme Court ruling stripped tribes of any criminal jurisdiction over non-Indians on their reservations. 

However, the Violence Against Women Reauthorization Act of 2013 allowed tribes to charge non-Indians who are married to or in a partnership with a tribal member for domestic violence crimes and violations of protection orders. The Justice Department has said that American Indian women suffer from domestic violence at rates more than double national averages.

To ease concerns from some members of Congress, tribes have to ensure that jury pools include non-Indians and that their court systems afford defendants the same rights as state and federal courts do. The changes to the Violence Against Women Act also allow defendants to seek review of a tribal court decision in federal court.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Vanness: Unlawful Search of a Lockbox Inside a Backpack.

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals

LOCKMED GUARDIAN LARGE Combination Lockbox

In State v. Vanness, the WA Court of Appeals Division I decided that the warrantless search of a locked box found inside a backpack that the defendant was wearing at the time of arrest violated both the Fourth Amendment and Washington Const. art. I, § 7.

Defendant VanNess was arrested for having outstanding warrants in Everett, WA. When arrested, VanNess was wearing a backpack and carrying a bag. A police officer removed the backpack and asked permission to search it. VanNess did not respond. Everett Police Department had a policy requiring officers to search backpacks for dangerous items. Following that policy, officers searched VanNess’s backpack and found knives. They also found a small box with a combination lock.

The police officer used a flathead screwdriver to pry open the box. He looked inside. Although he did not see any dangerous items, he saw a scale and small plastic “baggies” and smelled vinegar, which he associated with heroin. The box was delivered to the Everett Police Department’s property room.

Police obtained a warrant to search the box. They found suspected methamphetamine and heroin, a digital scale, a glass pipe, and several plastic baggies. The Prosecutor charged VanNess with Possession of Heroin with Intent to Deliver and Possession of Methamphetamine with Intent to Deliver. Both crimes are Class B felonies. The trial court denied VanNess’s motion to suppress. At trial, the court admitted the evidence. A jury found VanNess guilty of all charges. VanNess appealed.

A warrantless search is per se unreasonable, unless the State can prove a “carefully drawn and jealously guarded exception” applies. These exceptions include a search incident to arrest and an inventory search. If an exception does not apply, a warrantless search is illegal and the exclusionary rule prevents the State from presenting the illegally seized evidence. Here, the defendant argued that the inventory search of his lockbox violated his Constitutional rights.

The Court of Appeals agreed. It reasoned that although State v. Stroud and State v. Valdez each involved a locked container found in an automobile, the court’s consideration of the Chimel v. California applies just as well to the facts of our case:

“Where a container is locked and officers have the opportunity to prevent the individual’s access to the contents of that container so that officer safety or the preservation of evidence of the crime of arrest is not at risk, there is no justification under the search incident to arrest exception to permit a warrantless search of the locked container.”

Under Chimel, the Court reasoned that police officers may conduct a warrantless inventory search (1) to protect the arrestee’s property, (2) to protect the government from false claims of theft, and (3) to protect police officers and the public from potential danger. Courts generally uphold inventory searches conducted according to standardized procedures which do not afford police officers excessive discretion and when they serve a purpose other than discovery of evidence.

The Court of Appeals decided that here, an officer’s compliance with an established police procedure does not constitutionalize an illegal search. Similarly, the court rejected the claim that the possibility of a bomb or dangerous firearm in the locked box established a “manifest necessity” to search the box. They reasoned that without exigent circumstances, a legitimate inventory search only calls for noting such an item as a sealed unit. With that the court concluded that neither the search incident to arrest nor the inventory search exception applies to the officer’s initial search of VanNess’s locked box. Therefore, the police unconstitutionally searched the locked box.

My opinion? Good decision. It appears the Court of Appeals announced a new balancing test for some items found on an arrested person at the time of arrest. Basically, if the item to be searched falls within a category that implicates an arrestee’s significant privacy interests, the court must balance the government interests against those individual privacy interests. Only when government interests in officer safety and evidence preservation exceed an arrestee’s privacy interest in the category of item to be searched may it be searched incident to arrest without a warrant.

Good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Bill Seeks Prison Time for Drone Crimes

Bellingham Defense Attorney, Department of Corrections, Drones, felony, Legislation, Sentencing, , ,

Drone and Moon

Interesting news article from the Skagit Valley Herald. In an article titled, “Senate OKs Bill That Would Add Prison Time For Drone Crimes,” The WA Senate passed a bill that would allow prosecutors to seek an extra year in prison for offenders who use a drone aircraft while committing a crime.

Senate Bill 5499 passed on a 34-15 vote Tuesday and now heads to the House forconsideration. It adds the allegation of a “nefarious drone enterprise” to Washington criminal law. The state currently has no restrictions on the use of drones, although 20 other states have enacted laws on drone-related issues.

The bill adds a year to the sentencing range that dictates how judges can punish an offense. The measure was one a handful of other bills concerning drones that were filed in the Legislature this session in the wake of Gov. Jay Inslee’s veto of a bill last year that would have restricted how state and local government agencies use the unmanned aircraft.

My opinion? Although sad, Senate Bill 5499 was foreseeable. For example, under  RCW 46.20.285, defendants convicted of felonies get their driver’s licenses revoked for 1 year if a vehicle was used during the commission of a crime. It makes sense, therefore, that Prosecutors would get aggressive toward defendants if drones were used to further the commission of a crime. Sad but true.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

Assault, Bellingham, Bellingham Defense Attorney, DNA, Domestic Violence, felony, Jury Trial, Legislation, Prior Bad Acts, Rape, Sex Crimes, Violent Crime, , ,

That was me on the shelf': Maryland lawmakers weigh legislation requiring rape kits be tested - Baltimore Sun

On March 2, 2015, the Washington House Appropriations committee voted “Yes” on House Bill 1068; which supports DNA testing of rape kits sitting in evidence rooms across Washington Counties. The bill passed 82-15.

Essentially, numerous Washington counties – including Whatcom County – could help find serial rapists. House Bill 1068 arrives on the heels of recent controversy that rape kit evidence containing DNA evidence has been ignored by police departments statewide.

The Bellingham Herald ran two articles on this news. One story, titled Prosecutor: Testing Evidence Kits Can Lead to Finding Repeat Rapists discussed people’s responses to House Bill 1068.

The article mentions that Prosecutors like Rick Bell of Ohio support House Bill 1068. He claims that out of 6,000 kits tested, 2,244 received a hit to a known offender in a national database. Additionally, of the rapists indicted by his his office in Cuyahoga County, 30 percent are serial rapists. “Those serial offenders were going undetected, in part because labs couldn’t process all cases, so kits involving acquaintance rapes weren’t tested,” said Bell.

Also according to the article, Western Washington University college students like Heather Heffelmire, who is working in Olympia as the Legislative Liaison for Western Washington University’s Associated Students, testified in favor of House Bill 1068 during a public hearing in January. She said one of the main legislative priorities for WWU’s student body this year is to support survivors of sexual violence. “If you think about assault on campuses, it’s not like a predator does one assault — it’s usually a pattern of behavior,” Heffelmire said. “If you’re not having these kits tested, you can’t find that out.”

Additionally, Leah Gehri, the Director of Emergency Services at St. Joseph hospital in Bellingham WA, said she thinks HB 1068 is timely. “When you think about how long DNA evidence has been around, … at one point there weren’t a lot of DNA profiles hanging out there, they just didn’t have a lot of them,” Gehri said. “Now however, 20 years later, when profiles are quite common, the likelihood that an untested kit would now match up against a perpetrator in the system is more likely than it ever has been.”

Another article from the Bellingham Herald titled, Washington Lawmaker Tries to Tackle Thousands of Untested Rape Kits in State discusses the efforts of Rep. Tina Orwall, D-Des Moines toward having House Bill 1068 passed. 

The specific language House Bill 1068 is as follows:

Substitute offered in the House on January 23, 2015, requires a law enforcement agency to submit a request for laboratory examination within 30 days of receiving a sexual assault examination kit, provided that the victim or the victim’s legal guardian has consented to analysis of the kit as part of a sexual assault investigation. Specifies that failure to comply with the 30-day deadline does not create a private right of action against the law enforcement agency and is not a basis to exclude evidence in a court proceeding or to set aside a conviction or sentence. Creates a work group to study the issue of untested sexual assault examination kits in Washington, which must file an annual report through June 30, 2018.

My opinion? As a defense attorney, I support the notion that evidence garnered from the DNA testing of rape kits could be probative, relevant and cumulative in proving that the the perpetrator had a pattern of rape. Nevertheless, I have two concerns:

First, while I understand and agree with intent to have kits processed as quickly as possible, the timelines set forth in this proposal are probably unattainable with existing resources and do not take into account the complexities of processing kits. The 30-day timeline is very problematic for crime labs and is not feasible without a huge influx of resources (equipment, personnel, and possibly larger facilities).

Second, House Bill 1068 does not take into account the multitude of legal circumstances surrounding these kits.  For example, in a number of rape cases, the identity of the involved parties is not in question and both parties affirmatively indicate a sexual act occurred. Here, the issue is consent, not identity. Consequently, DNA analysis would only confirm what is already known.

In all likelihood, the latter issue will rest on the shoulders of jury trial judges who decide pretrial motions to admit or suppress DNA evidence in rape cases. In other words, we’ll see what happens . . .

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Marijuana / THC Breathalyzer Available Soon.

Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, police, Search Warrant, Uncategorized, Washington State Patrol, , ,

Marijuana breathalyzer technology is here, and it's coming for drivers | fox43.com

Technology appears to be catching up.

Since Colorado and Washington legalized the recreational use of marijuana in 2014, and the growing trend to legalize pot in some capacity across the nation, there is an increased interest in addressing drugged driving.

However, today’s standardized testing marijuana intoxication is not as simple as detecting alcohol. More science and research are required. It the meantime, technology will be coming to market, such as the marijuana breathalyzer being developed by Cannabix Technologies, Inc. to give police officers an on-site tool to enhance detection of THC, the psychotropic metabolite in marijuana.

In the future, devices of this type will likely be dialed in by the forensic community and become an integral element in identifying marijuana-intoxicated drivers and in other settings, including workplaces and general consumer use, just as the alcohol breathalyzer is today.

My opinion? We saw this coming. It’s almost humorous. Typically, the law lags behind technological advances. Here, technology appears to be lagging behind the evolution of marijuana legalization! Interesting development, no? This device is another tool in the hands of law enforcement – along with Drug Recognition Experts, and search warrants for the testing of blood – for investigating DUI charges.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. McPherson: Residential Burglary Involving A Dwelling/Business.

Burglary, Constitutional Rights, felony, Jury Trial, Washington Court of Appeals, , ,

What to Do Before, During, and After a Jewelry Store Robbery

In State v. McPherson, the Court of Appeals Division II decided the legal issue of whether a jewelry store and attached apartment is a “dwelling” under the definition of Residential Burglary. In short, the Court decided this was an issue of fact for a jury to decide; and that there was sufficient evidence for the conviction.

On the morning of March 20, 2013, someone broke into Frederick William Salewsky’ s jewelry store by entering the unoccupied store next door and making a hole in the adjoining wall. Frederick Salewsky, who worked in the jewelry store and lived in an apartment above the store, was awoken by a noise, went downstairs to investigate, and interrupted the burglary. He shot the intruder, who fled. The police later identified McPherson as a suspect after he checked into a Tacoma hospital with a gunshot wound.

The State charged McPherson with Burglary Second Degree of the vacant store ( count I), Residential Burglary of the jewelry store (count II) and Malicious Mischief Second Degree. The jury found McPherson guilty as charged and found that he had committed the Residential Burglary while the victim was present in the building or residence.

Under RCW 9A.52.025(1), a person is guilty of Residential Burglary if, with intent to commit a crime against a person or proerty therein, the person enters or remains unlawfully in a dwelling other than a vehicle. “Dwelling” means any building or structure, or a portion thereof, which is used or ordinarily used by a person for lodging.

The Court reasoned that whether a building is a “dwelling” cannot always be determined as a matter of law. Because the specific living arrangements in houses and businesses are so different, this issue was more appropriately a question of fact for the jury to decide. Here, the evidence support’s the jury’s determination that the building was a “dwelling” as the apartment was directly above the jewelry store because the apartment and jewelry store were within a single structure, the only access to the apartment was through the jewelry store, and the doors that separated the store from the apartment could not be locked or secured.

The court concluded that altogether, this evidence was sufficient for the jury to find that the apartment was not separable from the jewelry store and, therefore, there was sufficient evidence to support the jury’ s finding that the jewelry constituted a dwelling.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.