Monthly Archives: July 2015

New Smartphone App Warns You When You’re Too Stoned To Drive

 

Detects Marijuana Impairment

Technology. Gotta love it.

Canary has created a smartphone app which checks your mental and physical performance levels after ingesting marijuana and before driving. The app has gained widespread popularity and is sanctioned by NORML, an organization whose mission is to move public opinion to legalize the responsible use of marijuana by adults.

The app is straightforward: after logging in, it quickly subjects users to four basic tests: (1) a memory challenge where you have to recall six numbers that briefly appear on screen, (2) a reaction-time game where you have to quickly identify a particular icon from a series of images that pop up, (3) a time-perception assessment where you have to count off 20 seconds in your head as accurately as possible, and (4) a balance test that uses your phone’s accelerometer to gauge your ability to stand motionless on one foot.

After taking the tests, the app compares your results to a personalized performance baseline based on your past attempts at the app or norms built into the program.

Canary then determines whether your performance is impaired. At the end of the three-minute session, a green light means you’re not impaired, a yellow light means you should reconsider driving, and a blinking red light means you are impaired.

“This tool ideally allows cannabis consumers to take control and identify when they present a traffic-safety risk or when they may be under the influence,” says Paul Armentano, deputy director of NORML. “I believe this is information that all responsible marijuana users will want to know.”

The secret to Canary is that it doesn’t focus on potential markers of impaired performance, like levels of THC in your breath, but instead on performance itself. And since it launched weeks ago, Canary has been downloaded more than 10,000 times and is attracting attention from major marijuana players.

My opinion? Canary moves in the right direction. When it comes to marijuana use, drug tests such as urinalyses or blood tests are highly retrospective. The best those tests can do is assess lifestyle and acknowledge that the perpetrator consumed pot at some time recently.  However, these tests have absolutely no impact on whether you can perform. It’s unfair to prosecute someone who might have smoked a joint on Thursday and tested positive on Monday. So yes, testing someone’s performance before driving is absolutely critical to discovering if they’re too stoned to drive.

There’s a social justice incentive behind accurate marijuana impairment tests as well: Since African-Americans are far more likely to be pulled over and arrested for marijuana offenses than whites, an objective way to determine who’s high and who’s not could help level the playing field.

Kudos to Canary!

State v. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, WA Supremes!

NY Politician Wants Ignition Interlock Devices in All New Vehicles

Today, U.S. Representative Kathleen Rice announced that she will introduce legislation requiring all American automakers to equip new cars with ignition interlock device (IID) technology which detects a driver’s blood alcohol content (BAC) and prevents the engine from starting if the driver’s BAC is above the legal limit.

While laws vary across the states, ignition interlock devices are widely required for individuals who are convicted of Driving While Under the Influence. A recent study conducted by researchers at the University of Michigan found that requiring interlock technology in all new vehicles would, over a 15 year implementation period, prevent an estimated 85 percent of drunk driving-related deaths and 84-89 percent of drunk driving-related nonfatal injuries.

The study says that prveneting deaths and injuries resulting from DUI and other alcohol/drug related accidents would save an estimated $343 billion over 15 years. Additionally, the cost of installing the IID technology would be recovered in first 3 years of implementing the devices into cars. Finally, the study found that young drivers would benefit the most.

Representative Rice said the following about her legislation:

“Advancing the progress we’ve made combating drunk driving demands bold action. It demands that we take a stand and say we refuse to keep letting drunk drivers take 10,000 lives each year. We refuse to keep seeing families torn apart when we know we can do more to prevent it. Strict enforcement is important, holding drunk drivers accountable is important, but we can and must do more to stop drunk drivers from ever hitting the road in the first place. That’s why I’m working on legislation to require ignition interlock devices in all new cars. This technology saves lives, it saves money, and I’m going to fight to make it standard equipment in American cars.”

Representative Rice previously served as a Prosecutor of Nassau County, NY, where she received national acclaim for her efforts to combat drunk driving, securing Long Island’s first DWI-related murder convictions and helping to lead a statewide overhaul of New York’s DWI laws. Rice was dubbed by the New York Daily News as “the state’s toughest DWI prosecutor,” and recently received a Lifetime Achievement Award from Mothers Against Drunk Driving (MADD).

In re Detention of H.N.: Screenshots of Text Messages Are Admissible Evidence

 

In In re Detention of H.N., Division I of the WA Court of Appeals decided that E-mailed screenshots of text messages that a medical expert used as part of her testimony were properly admitted as substantive evidence at trial.

H.N. is a college student who was less than 21 years of age at the time of the events leading to this case. She worked at part time jobs, and she had two roommates who worked with her at one of her jobs. After midnight on a night in May 2014, H.N.’s two roommates returned home to discover her unconscious on the floor and lying in a pool of her own vomit. Nearby there was an empty bottle of wine, an empty bottle of Nyquil, and a partially empty bottle of vodka. H.N. briefly awoke but then passed out again. One roommate called 911, and medics responded to the scene.

Afterward, H.N. was involuntarily detained for mental health treatment.

Thereafter, the State petitioned for up to 14 days of additional inpatient treatment, pursuant to the involuntary treatment act, RCW 71.05. For those who don’t know, detainees like H.N. may petition their local superior courts to be released from detention and observation. However, courts won’t release detainees if the detainee is likely to gravely injure themselves or someone else upon release.

On May 7, 2014, the court conducted a hearing on H.N.’s petition for release. At the hearing, the State presented the testimony of a psychologist who evaluated H.N. at the hospital. The psychologist testified as an expert. Part of her testimony was based on what purported to be e-mailed screenshots of text messages between H.N. and her boyfriend, “A.” These messages were exchanged on the night her roommates found her unconscious on the floor, lying in a pool of her vomit. The psychologist read several of these text messages into the record. Over H.N.’s objection on the basis of lack of foundation, the court admitted this evidence.

For those who don’t know, the “lack of foundation” objection most often applies to exhibits or pieces of evidence other than testimony that are brought into court without an explanation of where they came from or what they represent.  Foundation is usually laid by having a witness testify as to what the object is.

At any rate, and after the hearing, the trial court found that H.N. suffered from a mental disorder and presented a likelihood of serious harm to herself. The court entered an order committing H.N. for involuntary treatment for a period of 14 days. H.N. appealed the court’s decision to detain her.

The WA Court of Appeals took the case and decided the issue of whether the trial court abused its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that the State’s expert witness used during her testimony.

The Court decided that the text message evidence was properly authenticated pursuant to ER 901(b). For those who don’t know ER 901(b) is an evidence rule which allows or disallows evidence depending on whether the evidence is properly “authenticated” (or not).

Here, the Court of Appeals gave many reasons why H.N.’s text messages were, in fact, authentic. She gave out-of-court acknowledgments that she sent the messages, the identifying information at the top of the text messages showed that she was the sender of the messages, her phone number matched the contact information in her medical chart, the messages consistently reference names of people in her life, the messages were consistent with certain events in H.N.’s life, and the timing of the text messages were consistent with her hospitalization on the night of the incident.

Consequently, the Court of Appeals affirmed the trial court’s detention of H.N. and concluded that text message evidence was sufficient to support the trial court’s finding that H.N. posed a likelihood of serious harm to herself.

My opinion? The Court’s logic appears sound. Although the text messages are inadmissible Hearsay under Evidence Rule  (ER) 801, hearsay is, in fact, admissible under certain circumstances.  Also, courts may consider evidence that might otherwise be objectionable under other rules of evidence. They can rely upon such information as lay opinions, hearsay, or the proffered evidence itself in making its determination. Such information must be reliable. Here, ER 901 allowed the State to authenticate the text message evidence. It was reliable. Therefore, it was admissible.

State v. Abitia: Sexual Assault Advocate’s Testimony Was Improper

In State v. Abitia, the WA Court of Appeals Division I decided that it was improper testimony and reversible error that an expert witness for the State – a Sexual Assault Advocate, no less – testified that people who molest children often do not tell the truth and when subjected to polygraph testing and often admit to committing more sexual abuse than the child victim reported.

The facts were such that defendant Raymond Abitia went to trial on one count of Rape of a Child in the Second Degree and one count of Distribution of a Controlled Substance to a Minor. The alleged victim was Abitia’s daughter, KM. At trial, KM disclosed the abuse after an incident in Skagit County that occurred shortly after she turned 14 years old.

One of the State’s witnesses was Joan Gaasland-Smith, the sexual assault case specialist – also called a Sexual Assault Victim Advocate – for the Whatcom County Prosecutor’s Office. Gaasland-Smith was qualified as an expert to discuss child sex abuse in general. For those who don’t know, “Sexual Assault Victim Advocates” are professionals trained to support victims of sex crimes. Advocates offer victims information, emotional support, and help finding resources. Sometimes, advocates attend court and pretrial interviews with victims. Advocates may also contact organizations, such as criminal justice or social service agencies, to get help or information for victims. Some advocates staff crisis hotlines, run support groups, or provide in-person counseling.

Gaasland- Smith testified that it is not unusual for children to delay disclosure. She said while there is no single reason that applies in every case, there are many reasons a child may not immediately disclose. A perpetrator may have offered the child rewards, money, or special attention in exchange for silence. The child may value the relationship with the perpetrator, fear being seen as abnormal, or think that the sexual contact feels good.

Up to this point, there was nothing particularly objectionable about Gaasland-Smith’s testimony. KM did not disclose abuse until the Skagit County incident and even then she resisted disclosing it to the police. Abitia’s defense strategy was to challenge KM’s credibility. It is generally permissible for a jury to hear expert testimony explaining why delayed disclosure does not necessarily mean the victim lacks credibility.

But in response to the prosecutor’s next question, Gaasland-Smith began to veer toward generalities about perpetrators. She said, “Kids can be told by perpetrators that, urn, that other adults believe adults, they won’t necessarily believe a child.” Abitia objected to “this whole line of questioning as to what do other sexual predators do. Abitia’s attorney objected to the testimony.

The court overruled the objection, stating that “what kids can be told by perpetrators … is appropriate testimony for an expert witness.” The court warned the prosecutor to “be very cautious so that generalization does not directly or indirectly suggest to the jury that that is what has happened” in this case.

Gaasland-Smith went on to discuss reasons why children may be afraid to disclose. She testified that most of the time, children do not disclose everything all at once. When asked about the basis of her knowledge, she answered that sexual deviancy evaluations show it is common to discover that “more happened than the child ever told.” In the course of this answer, Gaasland-Smith testified that a sexual deviancy evaluation includes a lie detector test because “oftentimes people who do this kind of thing don’t tell the truth.”

The jury convicted Abitia as charged. The case was appealed on the issue of whether the expert witness’s testimony was improper.

The Court of Appeals reasoned “Perpetrator Profile Testimony” is improper because it “clearly carries with it the implied opinion that the defendant is the sort of person who would engage in the alleged act, and therefore did it in this case too.” Gaasland-Smith’s line of testimony about what perpetrators do should have been cut off when the objection was first raised. Her opinion that sex offenders lie about their conduct implied that Abitia was lying when he denied having sexual contact with KM. No witness may testify as to an opinion on the veracity of the defendant, either directly or inferentially.

The Court also reasoned that Gaasland-Smith’s testimony that offenders can be trusted to tell the truth only when they are subject to lie detector tests was also unduly prejudicial. Ordinarily, polygraph evidence is inadmissible absent stipulation by both parties because the polygraph has not attained general scientific acceptability. Therefore, Gaasland-Smith’s improper reference to lie detectors bolstered her opinion that sexual offenders, as a class, are liars.

The Court of Appeals reversed the conviction.

My opinion? Excellent decision. It indeed invades the providence of the jury for experts to discuss “Perpetrator Profile Testimony” in the context of jury trials. It sways jurors far too much, and leads to unfair jury trials like the one above.

State v. Elkins: Officers Need Not Re-Advise Miranda in All Cases

In State v. Elkins, the WA Court of Appeals decided that whether the officers have scrupulously honored the defendant’ s right to silence and right to counsel under Miranda must be determined on a case -by -case basis, and that there is no bright-line rule requiring police officers to fully re-advise previously Mirandized suspects when reinitiating interrogation.

Yakima County deputies received a tip that defendant Eugene Elkins had killed his girlfriend Kornelia Engelmann. Yakima County deputies arrived and arrested him. He was advised of his Miranda rights. For those who don’t know, police officers must inform defendants of their Miranda rights once police place a defendant in custody and/or conduct investigations via questioning the defendant. The Miranda rights are stated as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Miranda protects a defendant’s Fifth Amendment rights against self incrimination, and may incline defendants to stop talking and/or immediately seek the advice of an attorney. Once a defendant asserts their Miranda rights, the police MUST stop questioning the defendant. And, generally speaking, police must repeat and re-inform defendants of their Miranda rights if questioning continues at a later time; and/or defendants change their minds and want to speak to the police.

Here, at around 3;30 p.m., Yakima County deputies advised Elkins of his Miranda rights before arresting him. Elkins declined to make a statement, and the Yakima County deputies did not question him further. They took him into custody.

Later, the police again attempted to interview Elkins at about 8: 30 PM. Although they did not re-advise Elkins of his Miranda rights, police asked Elkins if he had been advised of these rights, if he remembered them, and if he understood those rights were still in effect. After Elkins confirmed that he recalled being advised of his Miranda rights and that he understood those rights were still in effect, Elkins agreed to talk to the deputies. In short, he informed the police that he and Ms. Engelmann had a verbal argument which led to a physical altercation.

When the deputies commented on the extensive bruising on Engelmann’ s body and asked Elkins if he had kicked her, hit her with something, or hit her with a closed fist, Elkins said that he did not want to talk to the deputies any longer and requested an attorney. The deputies ended the interview.

On June 7, the very next day, Elkins gave a full written statement to police after they re-advised him of his Miranda rights. In the statement, he admitted to killing Engelmann. Elkins was subsequently charged with Murder in the Second Degree.

The case proceeded to a jury trial. Before trial, Elkins moved under CrR 3.5 to suppress the statements he made to the police on June 6 and June 7. However, the trial court admitted all of Elkins’ statements. At trial, Elkins was found guilty of Murder in the Second Degree. He appealed his conviction to the WA Court of Appeals Division II.

In rendering its decision, the Court acknowledged that fully re-advising a suspect of his Miranda rights is clearly the best practice when resuming questioning of a suspect who has asserted his right to silence. However, the Court also said there is no bright-line rule that law enforcement officers must always fully re-advise a defendant of his or her Miranda rights. In addition, they said that the issue of whether a defendant’ s rights have been scrupulously honored must be determined on a case-by-case basis.

The Court further reasoned that under the totality of the circumstances, Elkins statements were not coercively obtained by police. The facts show that ( 1) the Yakima deputies ceased questioning Elkins immediately when he asserted his right to silence, (2) no law enforcement officer attempted to interrogate Elkins for a significant period of time, five hours, before his subsequent contact with the police, ( 3) no law enforcement officer engaged in any coercive tactics, and (4) the police did not interrogate Elkins until after they confirmed that he had been read his rights, that he recalled those rights, and that he understood those rights were still in effect. The court also said the following:

“[T]he subsequent interrogation is proper if the State has shown that the defendant knowingly and voluntarily waived those rights given the totality of the circumstances, not whether the subsequent contact was preceded by law enforcement fully re-advising the defendant of his or her Miranda rights. When this and the other factors . . . are met, the officers have scrupulously honored the defendant’ s rights.”

Finally, the Court of Appeals reasoned that Elkins’ June 6 waiver was knowing and voluntary under the circumstances. They also reasoned that his statements made during transport and June 7, 2014 statements were also admissible because Elkins initiated the relevant conversation following his assertion of his right to counsel and then knowingly and voluntarily waived his Miranda rights. The Court of Appeals upheld his conviction.

My opinion? My heart goes out to the victim’s friends and family. I sincerely hope they find comfort in the Court of Appeals’ decision. However, I disagree with the decision. When it comes to protecting people’s constitutional rights, bright-line rules work best. And its always been a time-tested rule that police MUST re-advise suspects of their Miranda rights, especially under circumstances like this.

Ohio v. Clark: Child Victim Hearsay Statements Are Admissible

 

In Ohio v. Clark, the United States Supreme Court ruled that statements made by the 3-year-old victim to his preschool teacher were properly admitted at trial, despite the fact that the 3-year-old did not testify.

Here, defendant Darius Clark sent his girlfriend away to engage in prostitution while he cared for her 3-year-old son L. P. and 18-month-old daughter A. T. When L. P.’s preschool teachers noticed marks on his body, he identified Clark as his abuser. Clark was subsequently tried on multiple counts related to the abuse of both children. At trial, the State introduced L. P.’s statements to his teachers as evidence of Clark’s guilt, but L. P. did not testify. The trial court denied Clark’s motion to exclude the statements under the Sixth Amendment’s Confrontation Clause. A jury convicted Clark on all but one count. The state appellate court reversed the conviction on Confrontation Clause grounds, and the Supreme Court of Ohio affirmed. The U.S. Supreme Court stepped in to resolve the matter once and for all.

For those who don’t know, The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions.

Here, the U.S. Supreme Court reasoned that L. P.’s statements at trial – which were introduced as hearsay evidence through the testimony of a school counselor – did not violate the Confrontation Clause.

In reaching its decision, the Court said it’s prior decision in Crawford v. Washington held that the Confrontation Clause generally prohibits the introduction of “testimonial” statements by a non-testifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Additionally, a statement qualifies as testimonial if the “primary purpose” of the conversation was to “create an out-of-court substitute for trial testimony.” The Court addressed why L.P.’s statements were not “testimonial:”

“L. P.’s statements were not made with the primary purpose of creating evidence for Clark’s prosecution. They occurred in the context of an ongoing emergency involving suspected child abuse. L. P.’s teachers asked questions aimed at identifying and ending a threat. They did not inform the child that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation was informal and spontaneous. L. P.’s age further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause”

“Finally, although statements to individuals other than law enforcement officers are not categorically outside the Sixth Amendment’s reach, the fact that L. P. was speaking to his teachers is highly relevant. Statements to individuals who are not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonialthan those given to law enforcement officers.”

Furthermore, the Court found it irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. “Mandatory reporting obligations do not convert a conversation between a concerned teacher and her student into a law enforcement mission aimed at gathering evidence for prosecution.”

My opinion? I fear a slippery slope. Child victims are notoriously difficult. The first challenge is getting an interview. If defense counsel succeeds, they must be prepared to interview the child victim with a legion of DV advocates, investigating officers, parents, family friends and the Prosecutor attending the interview. And by this time, the matter has been discussed ad nauseum between the child and the aforementioned. Consequently, by the time the interview happens, the child has essentially been trained and coached to memorize a script and stick with it.

Now, with this opinion, it seems that school counselors can testify to statements made by the child victim., and that the child not even be made available to testify. Under the Washington Rules of Evidence – which strictly follow the Federal Rules of EvidenceER 801 says, “Hearsay” is an out-of-court statement made to prove the truth of the matter asserted. Statements made by another are hearsay. Also, Hearsay is generally inadmissible. But now, under these circumstances, hearsay is admissible; and made worse by the fact that the defendant cannot confront the child witness at trial. This violates the essence of the 6th Amendment’s Confrontation clause. Period. Bad decision.

State v. Flores: WA Court of Appeals Decides Frisk for Gun Was Unconstitutional

 

In State v. Flores, Division III of the WA Court of Appeals UPHELD the suppression of a gun that officers found on an individual who was walking with a known-gang member and fugitive who had just threatened another person with a firearm. The reason for the suppression? There were no grounds to frisk the defendant because he made no furtive movements, had no known violent propensities, and was compliant with all of the officer’s directions.

Here, Moses Lake police were responded to an anonymous report that Giovanni Powell held a gun to somebody’s head. Dispatch also reported an outstanding warrant for the arrest of Powell. He was a known gang member and a fugitive.

The defendant, Cody Flores, was with Powell. Although Flores had no warrants for his arrest and did not point a firearm at anyone, Flores did, in fact, possess a firearm on his person. Unfortunately, he possessed the firearm unlawfully because a prior felony conviction barred his possession.

Police apprehended both Powell and Flores. Although Flores complied with officers, had no known violent propensities and was compliant with all of the officer’s directions, Flores was nevertheless frisked. Officers found his friearm. He was charged with Unlawful Possession of a Firearm in the First Degree in violation of RCW 9.41.040(1)(a). However, Flores’ his defense attorney prevailed in a 3.6 Motion to suppress the firearm due to an unlawful search.

Among other findings, the trial court found that the officers lacked individualized articulable suspicion to suspect Cody Flores of criminal activity. The trial court granted Cody Flores’ motion to suppress evidence of the gun found on his person and dismissed the charge against him. The State filed an appeal.

The WA Court of Appeals sided with the trial court’s suppression. It reasoned that the Washington Constitution, not the Fourth Amendment to the United States Constitution, is the controlling law. Article I, section 7 of the WA Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The Court reasoned that WA’s protection encompasses and exceeds the protection guaranteed in the Fourth Amendment of the United States Constitution.

The Court further reasoned that, as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. There are five exceptions to the warrant requirement. They include (1) exigent circumstances, (2) searches incident to a valid arrest, (3) inventory searches, (4) plain view searches, and (5) Terry investigative stops. The State bears the burden of demonstrating that a warrantless seizure falls into a narrow exception to the rule. “This is a strict rule.” said the Court. “Exceptions to the warrant requirement are limited and narrowly drawn.

“Merely associating with a person suspected of criminal activity does not strip away the protections of the constitution,” said the Court. “In order for police to lawfully seize an otherwise innocent individual present with an arrestee, the arresting officer must articulate an ‘objective rationale’ predicated specifically on safety concerns.”

Finally, the court reasoned that automatically authorizing the search of non-arrested individuals because those individuals happen to be associated with the arrestee, or within the vicinity of the arrest, would distort the narrow limits of the warrant exceptions and offend fundamental constitutional principles. Because the privacy interest of a non arrested individual remains largely undiminished, full blown evidentiary searches of non-arrested individuals are constitutionally invalid even when officers may legitimately fear for their safety. “A generalized concern for officer safety has never justified a full search of a nonarrested person,” said the court.

With that, the Court of Appeals affirmed the trial court’s suppression of evidence and dismissal of charges against Cody Flores.

My opinion? This is a well-reasoned case. It’d be different if the defendant was doing something unlawful, being uncooperative and/or raising safety concerns with the police. Here, the situation was purely mathematics. Again, there can search incident to arrest if there is no arrest. And there can be no arrest without probable cause. Here, there was no probable cause to arrest and search Mr. Flores. Period.

Good opinion!

State v. E.J.J.: Exercising Freedom of Speech is NOT Obstructing.

Barclays Center protest in Brooklyn, NY on December 1, 2014.

Excellent opinion.

In State v. E.J.J., the Washington Supreme Court  held that a juvenile offender, who called the officers abusive names, yelled, and used profanity toward the officers while the officers were engaged in a criminal investigation, CANNOT be convicted of obstructing a law enforcement officer. The words the juvenile directed at the officers are protected by the First Amendment. The obstruction statute is also not violated by a citizen’s presence at a scene, provided the citizen does not physically interfere with police. 

Here, juvenile defendant E.J.J. was charged with Obstructing a Law Enforcement Officer under RCW 9A.76.020(1). Under this law, a person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties. Obstructing is a gross misdemeanor punishable up to 1 year in jail and a $5,000.00 fine.

This case began as a call for police assistance to E.J.J. ‘s house to help with his intoxicated, out-of-control sister, R.J. (a juvenile at the time). The police responded and began their intervention by escorting R.J. out of the house 10 to 15 feet away from the front door, where the officers attempted to calm her down. E.J.J. grew concerned when he saw an officer reach for what he perceived to be a nightstick. E.J.J. exited the house and stood on the porch, telling the officers that R.J. was his sister and that they should not use the nightstick. The officers advised him that they were in the middle of their investigation and instructed him multiple times to leave the scene and return to the house.

Initially, E.J.J. did not comply, questioning why he had to return to the house. When, eventually, he did return to his home, he stood in the open doorway and continued his verbal interaction with the officers. The house had double doors: a wrought iron screen door, through which someone could see out and communicate through, and a second, solid wood door.

The officers directed E.J.J. multiple times to close the solid wood door and to withdraw further into the home, but E.J.J. refused, stating that he wanted to supervise the scene from the doorway ( 10 to 15 feet away from the other officers and R.J.) to make sure that R.J. was not harmed. E.J.J. continued to stand behind the closed wrought iron door. Multiple times, an officer reached into the home to close the solid door. E.J.J. would immediately reopen it. At this point, E.J.J. was irate, yelling profanities and calling the officers abusive names. An officer warned E.J.J. that he could be arrested for obstruction. After E.J.J. continued to reopen the solid door, an officer put him under arrest for obstruction of a law enforcement officer. The entire interaction lasted approximately 10 to 15 minutes.

E.J.J. was found guilty at trial. he appealed his conviction to the WA Court of Appeals. Unfortunately, the Court of Appeals upheld E.J.J.’s conviction. The case was again appealed, only this time to the WA Supreme Court.

 The WA Supreme Court reasoned that many court cases have consistently and strongly held that people cannot be held liable when exercising their right to speak. “While E.J.J. ‘s words may have been disrespectful, discourteous, and annoying, they are nonetheless constitutionally protected.”

The Court further reasoned that our cases have consistently required conduct in order to establish obstruction of an officer. In other words, a conviction for obstruction may not be based solely on an individual’s speech because the speech itself is constitutionally protected. This review is also consistent with the approach established by the United States Supreme Court’s See Street v. New York.”

The WA Supreme Court had many reasons for disagreeing with the WA Court of Appeals. First, the WA Supremes disagreed that E.J .J.’ s physical approach toward the officers was sufficient evidence of conduct to support his conviction: “E.J.J. did not physically interfere with or touch either the police or his sister. Furthermore, the trial court’s findings of fact provide that E.J.J. did not make any threatening movements toward the officers at any time.”

Second, the WA Supremes disagreed that E.J.J.’s presence at the scene escalated the situation: “E.J.J. ‘s mere presence at the scene cannot constitute conduct. E.J.J. had every right to stand on his own property, provided he did not physically interfere with police.”

Third, the WA Supremes disagreed that E.J.J.’s refusal to obey the officers’ repeated requests to leave the scene was sufficient evidence of conduct: “This exchange is so intertwined with E.J.J.’s protected speech that we find insufficient evidence of E.J.J. ‘s conduct to support his conviction on this basis.”

Finally, the WA Supremes disagreed there was evidence of obstruction because an officer was eventually required to escort E.J.J. back to the home, thus delaying officers: “Inconvenience cannot, taken alone, justify an arrest for obstruction.” The Court concluded with the following:

“Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment. After a comprehensive review of the record and the trial court’s findings, the decision of the trial court is reversed and charges are dismissed.”

My opinion? EXCELLENT decision. I’ve had many, many clients charged with Obstructing simply because they voiced a heated opinion with law enforcement officers during an investigation. Although it’s never okay to be disrespectful toward law enforcement, obstructing requires conduct – plain and simple. I’m pleased our Washington Supreme Court made the right decision.