Monthly Archives: January 2016

State v. Keodara: Overbroad Search Warrant for Cell Phone

In State v. Keodara, the WA Court of Appeals ruled that a search warrant was overbroad in violation of the particularity requirement because it allowed police to search a cell phone “for items that had no association with any criminal activity and for which there was no probable cause whatsoever.”

In 2011, the defendant Say Keodara was involved in a shooting at a bus stop.  Several weeks later, police arrested him for an unrelated incident. They searched his backpack and found his cell phone. Outside the backpack police found drugs, drug packaging and drug paraphernalia.  An officer submitted an affidavit in support of a search warrant for the contents of the cell phone. The affidavit made several generalizations about drug dealers and gang members in support of the officer’s conclusion that there was evidence of crime on the cell phone. The judge issue the warrant pursuant to the affidavit, which ultimately allowed police to search Keodara’s entire phone without any limitations.  Police searched the phone and found evidence that the State used when trying Mr. Keodara for the shooting at the bus stop.

Keodara was charged with Murder in the First Degree, three counts of Assault in the First Degree (each with a separate firearm enhancement), and Unlawful Possession of a Firearm in the First Degree. He was convicted on all counts and sentenced to 831 months of prison (69.25 years).

On appeal, Keodara argued that the evidence from his phone should have been suppressed because the search warrant violated the Fourth Amendment to the United States Constitution and art. I, §7 of the Washington State Constitution. He also argued that his substantial prison sentence violated the Eighth Amendment.

Ultimately, the court held that although the search of Keodara’s phone violated the federal
constitution, the failure to suppress the evidence was harmless. It also held that Keodara’s sentence violated the 8th Amendment because the court failed to Keodara’s youth and other age-related factors into account. Accordingly, the court affirmed Keodara’s conviction but remanded for a new sentencing hearing.

In reaching its decision, the court reasoned that a warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search. In this case, the affidavit for the warrant for Keodara’s phone contained blanket statements about what certain groups of offenders tend to do and what information they tend to store in particular places. Furthermore, the warrant’s language also allowed Keodara’s phone to be searched for items that had no association with any criminal activity and for which there was no probable cause whatsoever. The court also said the following:

Here, no evidence was seized that would have linked Keodara’s phone to the crimes listed in the warrant-unlawful possession of firearms, possession with intent to deliver or sell narcotics, or assault. Nothing in the record suggests that anyone saw Keodara use the phone to make calls or take photos. In addition, the phone was found in a backpack, separate from the drug paraphernalia or the pistol. There was no indication that evidence of firearms or drugs were found with the phone. We conclude that the warrant was overbroad and failed to satisfy the Fourth Amendment’s particularity requirement.

Nevertheless, the Court of Appeals also held that the trial court committed harmless error in admitting evidence police found on the phone:

Here, the untainted evidence of Keodara’s guilt was strong. Cellular phone tower records placed him near the location of the shooting, two eyewitnesses identified him, and another witness testified that Keodara contacted him and told him about the shooting. We find that the trial court’s denial of Keodara’s motion to suppress does not warrant reversal and, accordingly, we affirm his convictions.

The Court of Appeals also addressed the issue of whether Keodara’s sentence violated the Eighth Amendment. In short, the court said, “Yes.” It reasoned that the trial court did not take into account that Keodara was a juvenile at the time he committed the crimes or consider other age related factors that weigh on culpability or his capacity for rehabilitation. Based on that, the Court concluded that the sentence imposed in this case violated Keodar’s constitutional rights under the Eighth Amendment. Accordingly, the Court of Appeals vacated the sentence and remanded for a new sentencing hearing.

My opinion? Good decision. It appears that, more and more, our courts are rightfully acknowledging a Defendant’s youth at sentencing.

Wire Cutters Are NOT Theft Tools.

In State v. Larson, the WA Supreme Court overruled the WA Court of Appeals and decided that the crime of Retail Theft With Special Circumstances under RCW 9A.56.360(1)(b), which elevates theft to a more serious offense when the defendant is in possession of “an item, article, implement or device designed to overcome security systems,” only applies to an item that is created – whether by the manufacturer or the defendant – with the specific purpose of disabling or evading security systems.

Defendant Zachary Larson attempted to steal a $32 pair of shoes from a Marshall’s store in Bellingham, WA. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of Retail Theft with Special circumstances, which criminalizes the commission of retail theft while in possession of a “device designed to overcome security systems.”

While the case was pending, Larson argued a Knapstad motion to dismiss. The trial court denied the motion and found Larson guilty as charged. He was sentenced to 60 days of confinement. Larson appealed. Ultimately, the Court of Appeals confirmed Larson’s conviction. Larson appealed again to the WA Supreme Court.

The WA Supreme Court addressed the specific issue of whether ordinary wire cutters are “designed to overcome security systems” within the context of retail theft.

The Court reasoned that whenever it must interpret the meaning and scope of a statute, “our fundamental objective is to determine and give effect to the intent of the legislature.” Furthermore,  lined bags and tag removers – of which the Defendant did not possess – are highly specialized tools with little to no utility outside of the commission of retail theft. “From this fact, it can be reasonably inferred that there is no reason a person would be in possession of these items except to facilitate retail theft.”

Furthermore, reasoned the court we must interpret statutes to avoid absurd results:

For example, where a person slips a stolen item into his pocket to hide it from a store’s security camera, the pocket has arguably become a “device designed to overcome security systems.” Similarly, a person who happens to have in her pocket a pair of nail clippers, a Leatherman multi tool, or any other tool that people commonly carry with them, at the time she shoplifts would be guilty of retail theft with extenuating circumstances. As these practical examples demonstrate, the State’s over-inclusive approach belies the statute’s primary purpose of capturing retail theft that occurs under certain aggravating circumstances.

The Court concluded that the plain language of the Retail Theft statute indicates that the legislature intended the statute to have a narrow scope:

We hold that “designed to overcome security systems” for the purposes of retail theft . . . is limited to those items, articles, implements, or devices created-whether by the defendant or manufacturer-with the specialized purpose of overcoming security systems. Ordinary tools, such as pliers or the wire cutters used by Larson, do not fall within the scope . . .  The evidence is insufficient to support Larson’s conviction for third degree retail theft with extenuating circumstances, and we reverse the Court of Appeals.

My opinion? Good decision. In interpreting the statute, the WA Supreme Court correctly applied a narrow scope because, quite frankly, any household tool found in the pockets of an alleged thief can be viewed as a tool “designed to overcome security systems.” This is unjust. Retail Theft With Special Circumstances is a Class C felony exposing defendants up to 5 years prison and a $10,000 fine. That’s quite serious. Do we want to punish thieves with Class C felonies for stealing shoes from Marshall’s store while carrying a Swiss Army knife in their pocket? Do these circumstances warrant sending people to prison? No. The WA Supreme Court got this one right.

Lower Legal Alcohol Limit?

The National Transportation Safety Board wants the nationwide legal limit of .08 cut almost in half to .05, in an effort to save more lives.

Oddly, Mothers Against Drunk Driving (MADD), the nation’s most prominent advocacy group against drunk driving, does not support the legislation. MADD says there’s not enough data to show it would make much of a difference.

“Until we know that and can compare that and have an intellectual conversation on that, we want to focus on what we know is effective,” said Jason Derscheid, the Executive Director of MADD North Texas.

The organization most recently helped pass an interlock ignition law in Texas, allowing DWI offenders to have a device installed on their car. MADD has found that the alternative, suspending an offender’s license, doesn’t prevent them from continuing to drink and drive.

It’s advocating for similar laws to be passed in all 50 states.

Despite its lack of support for lowering the legal limit, MADD says it does not condone any level of drinking of driving.

“The only safe way to get home is to have a non-drinking, designated driver,” said Derscheid.

 

State v. Evans: A Knife is Not a Gun

In City of Seattle v. Evansthe WA Supreme Court ruled that Article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution’s protection of the right to bear “arms” does not extend to a paring knife.

Seattle Police Officer Michael Conners stopped a vehicle driven by Wayne Anthony Evans for speeding in the Central District of Seattle. As Conners approached Evans’s vehicle, he observed furtive movements from Evans and his passenger, and he smelled marijuana. Conners directed Evans to exit the vehicle and asked him whether he had any weapons. Evans responded that there was a knife in his pocket. Conners instructed Evans not to reach for the knife; Conners then reached into Evans’s front right pocket, retrieved a fixed-blade knife with a black handle, and placed Evans under arrest for possession of a fixed-blade knife.

The City of Seattle (City) charged Evans with the unlawful use of weapons in violation of SMC 12A.14.080, which reads, “It is unlawful for a person knowingly to . . . carry concealed or unconcealed on his or her person any dangerous knife, or carry concealed on his or her person any deadly weapon other than a firearm.”

The case proceeded to trial. The City’s Prosecutor introduced the knife into evidence and presented testimony from Officer Conners. Conners identified the knife that he recovered from Evans at trial and the State entered that knife into evidence. When asked, Officer Conners described the knife as having a “black handle with a metal colored blade” that was “about-about this long,” apparently gesturing with his hands. Officer Conners admitted that he was concerned that the knife had a fixed blade-that is, it had a blade that would not fold into the handle-and alternately described the blade as resembling a “kitchen knife” or a “paring knife.”

The jury returned a general verdict of guilty, and Evans’s conviction was affirmed by the King County Superior Court and the Court of Appeals.

The WA Supreme Court reviewed the case on the specific issue of whether Mr. Evans’ fixed-blade knife is a protected arm under the Washington or federal constitution. Apparently, ruled the court, a knife is NOT protected as an “Arm” under the Constitution(s):

 . . . we hold that not all knives are constitutionally protected arms and that Evans does not demonstrate that his paring knife is an “arm” as defined under our state or federal constitution. Therefore, Evans cannot establish that SMC 12A.14.080(B) is unconstitutional as applied to him and we reject his as-applied challenge.

The court reasoned that although it is true that some weapons may be used for culinary purposes, as it is also true that many culinary utensils may be used when necessary for self-defense; but it does not follow that all weapons are culinary utensils or that all culinary utensils are weapons:

Were we to adopt Evans’s analysis and hold that a kitchen knife was a protected arm because it could be used for self-defense, there would be no end to the extent of utensils arguably constitutionally protected as arms. If a kitchen knife is a protected arm, what about a rolling pin, which might be effectively wielded for protection or attack? Or a frying pan? Or a heavy candlestick? “Admittedly, any hard object can be used as a weapon, but it would be absurd to give every knife, pitchfork, rake, brick or other object conceivably employable for personal defense constitutional protection as ‘arms.’

With that, the WA Supreme Court affirmed the Court of Appeals and held that Evans’s paring knife was not an arm entitled to constitutional protection. Therefore, Evans cannot establish that SMC 12A.14.080 is unconstitutional as applied to him.

My opinion? I hate to say, but I somewhat agree. There’s a huge difference between a gun and a knife. The right to bear arms was made to protect guns, not knives. Period.

State v. Rich: Evidence of DUI Also Shows Reckless Driving

In State v. Rich, the WA Supreme Court ruled that although proof of DUI alone does not necessarily establish proof of Reckless Endangerment, here, proof that a driver whose breath alcohol level was more than twice the legal limit and who showed awareness that she had done something wrong once stopped, and who sped past a police car in traffic with a young child in the front seat, was sufficient to allow a reasonable juror to conclude beyond a reasonable doubt that the driver created a substantial risk of death or injury to her passenger; which meets the definition of Reckless Endangerment.

A jury convicted defendant Andrea Rich of driving under the influence (DUI) and Reckless Endangerment. The evidence showed that Rich was speeding in traffic while highly intoxicated and with a young child in the front passenger seat. But the officer who arrested Rich followed her car because he believed that the car was stolen. Rich’s manner of driving posed no observable danger.

The WA Court of Appeals reversed the Reckless Endangerment conviction, holding that the evidence was insufficient to establish that Rich’s driving created an actual, substantial risk of death or serious physical injury to another person. It reasoned that proof of a DUI does not necessarily establish proof of Reckless Endangerment.

In response, the State Prosecutor appealed to the WA Supreme Court on the issue of whether there was sufficient to support Rich’s Reckless Endangerment conviction.

The WA Supreme Court agreed with the Court of Appeals that proof of DUI alone does not necessarily establish proof of Reckless Endangerment. The WA Supreme Court also reasoned, however, that the State proved more than just DUI in this case:

It also proved speeding, past a police car, in traffic, by a driver whose breath alcohol level was more than twice the legal limit, who showed awareness that she had done something wrong once stopped, and who had a young child in the front passenger seat. Construing the evidence in the light most favorable to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich created a substantial risk of death or injury to her passenger, that Rich knew of the substantial risk, and that Rich disregarded that risk in gross deviation from the way a reasonable person would act in her situation.

With that, the WA Supreme Court reversed the Court of Appeals and affirmed the Reckless Endangerment conviction.

Marijuana Legalization is Making Mexican Drug Cartels Poorer.

a report from Deborah Bonello for the Los Angeles Times shows one way that legalization for recreational and medical purposes is working:

The loosening of marijuana laws across much of the United States has increased competition from growers north of the border, apparently enough to drive down prices paid to Mexican farmers. Small-scale growers here in the state of Sinaloa, one of the country’s biggest production areas, said that over the last four years the amount they receive per kilogram has fallen from $100 to $30.

The price decline appears to have led to reduced marijuana production in Mexico and a drop in trafficking to the U.S., according to officials on both sides of the border and available data.

This was welcome news. One of the major arguments for legal pot is that it will weaken drug cartels, cutting off a major source of revenue and inhibiting their ability to carry out violent acts — from mass murders to beheadings to extortion — around the world. And cannabis used to make up a significant chunk of cartels’ drug export revenue: as much as 20 to 30 percent, according to previous estimates from the Mexican Institute of Competitiveness (2012) and the RAND Corporation (2010).

Will this be enough to completely eliminate drug cartels? Certainly not. These groups deal in far more than pot, including extortion and other drugs like cocaine and heroin.

Still, it will hurt. As the numbers above suggest, marijuana used to be a big source of drug cartels’ revenue, and that’s slowly but surely going away. It’s still possible that legalization in America could produce downsides in the U.S., such as more cannabis abuse. But it’s a potentially huge win for Mexico and other Latin American countries.

Ignition Interlock Devices Are Cash Cows for States.

According to news released from the Blow & Drive Interlock Corporation (BDIC) The Alcohol Ignition Interlock Industry is experiencing tremendous growth as more and more states continue to pass laws requiring Ignition Interlock Devices for DUI/DWI offenders.

The Centers for Disease Control and Prevention (CDC) reports that requiring or highly incentivizing interlocks for all convicted drunken drivers reduces drunken driving recidivism by 67 percent. The CDC recommends ignition interlocks for everyone convicted of DWI, even for first offenders.

Mothers Against Drunk Driving (MADD) Continues to Push for Tougher DUI Laws. In 2006, there were only 100,000 interlocks installed in the United States. As of July 2013, there were nearly 305,000 interlocks in use.

NEW 2016 IGNITION INTERLOCK LAWS

Texas: Gov. Greg Abbott signed House Bill 2246 into law in June 2015, allowing those convicted of DWI with blood alcohol content less than 0.15 percent to be able to drive as long as they have an ignition interlock system installed in their car.

New HampshireAfter Jan. 1st 2016, anyone convicted in New Hampshire for a first offense of driving while intoxicated can petition a judge for a limited driver’s license that will allow them to drive to work, school or medical appointments, while their license is suspended, the new law comes with a host of restrictions – including installation of an alcohol-detecting automotive interlock device.

IllinoisNew Ignition Interlock Law goes into effect January 1st, 2016, requiring anyone convicted of two or more DUIs to install a Breath Alcohol Ignition Interlock Device on their vehicles for 5 years.

South CarolinaGovernor signed Emma’s Law, which requires all offenders, including first-time offenders, with a blood alcohol concentration (BAC) of .15 or greater mandated installation of an ignition interlock device.

Hawaii: New Law Requires Ignition Interlock Users to drive with a Hawaii ID Card. The new law, Act 40, goes into effect on Jan. 1, 2016

PENDING IGNITION INTERLOCK LEGISLATION

Federal: Legislation, called “Alisa’s Law”, would require all first time DUI offenders in all 50 states to have an ignition interlock device installed in their vehicle for up to 2 years

Pennsylvania: Senate unanimously approved Senate Bill 290, which would require all repeat convicted drunk drivers as well as first-time offenders with a blood-alcohol concentration of .10 or above to use the alcohol ignition interlock devices.

Oregon: House Bill 2660 Provides court discretion to order person participating in driving while under influence of intoxicants a diversion agreement to install an ignition interlock device if person submitted to chemical test of person’s breath, blood or urine and test disclosed blood alcohol content below 0.08 percent by weight.

Washington: House Bill 1276 includes many provisions to deal with impaired driving.

Ohio: Lawmakers introduced a bill, called Annie’s Law, calling for ignition interlocks to be installed on vehicles if the driver has been convicted two or more times for drunk driving.

Indiana: Lawmakers plan to discuss the problem of repeat drunk drivers this legislative session, including a bill that would improve the ignition interlock system in Indiana.

Wisconsin: Lawmakers have proposed closing a loophole in state law so people who are required to have an ignition interlock device in their vehicle would face criminal punishment if they get caught driving a vehicle without such a device

Massachusetts: State Senate proposed a bill that would give drunk drivers a chance to avoid a license suspension, requiring them instead to install an ignition interlock

Maryland: Governor Larry Hogan is trying to push through one of his latest initiatives, which would require drivers arrested on drunk-driving charges to install an ignition interlock device inside their vehicle.

MADD will continue to push for stricter DUI Laws, and they will continue to Ask More States to pass All-Offender Ignition Interlock Legislation in an effort to keep the roads safe for sober motorists. From only one state requiring interlocks in 2006 today twenty‐six states require or highly incentivize the use of ignition interlocks for every convicted offender and as a result they have reduced drunk driving deaths by 24% overall.

 

 

State v. Meza: Freezing Funds Without a Warrant Is Unlawful

In State v. Meza, the WA Court of Appeals Division II held that a trial court’s order to freeze the defendant’s bank account was not a search warrant, and therefore did not satisfy the warrant requirement for the seizure of funds.

In June 2014, John Armstrong spoke with the Lewis County sheriff’s office and alleged that Rafael Meza had swindled money from him. Deputy Justin Rogers investigated Armstrong’s allegations. Rogers contacted the Twin Star Credit Union and verified that Meza held an account that had received large wire transfers recently. Rogers also learned from Mansfield that Meza recently had informed him that he was planning to go to Mexico.

Rogers served Twin Star Credit Union with a valid search warrant for Meza’s account information. Meza’s bank statements showed a check and four wire transfers from Mansfield totaling $105,000, with the last transfer on June 18. They also showed a single wire transfer from Armstrong in the amount of $15,000 on April 11. Meza’s checking account showed that between October 2013 and June 2014, he withdrew approximately $89,000 in cash in 41 transactions involving between $3,000 and $5,000 each.

On June 27, 2014, the State charged Meza with one count of Theft in the First Degree. On the same day, the State presented an ex parte “Motion for an Order Freezing and Holding Funds” to the judge. The State asserted that the funds in Meza’s credit union accounts were “evidence in a felony offense.” The State’s motion was based on the probable cause affidavit filed with the information and asserted that there was “a high likelihood, based on the affidavit regarding probable cause, that Meza will remove said funds and leave the country.”

Importantly, the State did not request a search warrant for the credit union funds or reference CrR 2.3 in its motion.

Nevertheless, the trial court signed an order directing Twin Star Credit Union to “freeze and hold all accounts in the name of . . . Meza . . . as evidence in a criminal proceeding, until further order of this Court.” Also, neither the motion nor the order cited any legal authority for freezing Meza’s accounts.

In January 2015, Meza filed a motion to vacate the trial court’s order. Meza argued that there was no legal authority for the order. The trial court denied Meza’s motion to vacate the order, saying there was probable cause to believe that Meza’s account was related to the charged crime. The court concluded that it had the authority to freeze Meza’s funds under CrR 2.3. In addition, the trial court ruled that Meza’s account qualified as both evidence of a crime and the proceeds of a crime. Meza filed a motion for discretionary review. The WA Court of Appeals accepted the case.

The WA Court of Appeals reasoned that The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Similarly, article I, section 7 of the Washington Constitution provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” These provisions generally prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies.

Consequently, reasoned the court, a person’s banking records fall within the constitutional protection of private affairs. Although no Washington case has addressed whether funds in a bank account can be seized without a warrant it defies reason to extend constitutional protection to bank account records but not to the funds reflected in those records. The Court emphasized that the seizure of funds is as much a threat to security in a person’s effects and a disturbance of a person’s private affairs as the seizure of the records regarding those funds:

“Here, the State cites no statute, court rule, or other authority allowing the seizure of a defendant’s bank account in these circumstances. Therefore, the seizure was not authorized by law.”

Finally, the Court rejected the State’s argument that under State v. Garcia-Salgado the trial court’s order is the functional equivalent of a search warrant.

“We hold that the Garcia-Salgado holding is limited to cases where the trial court’s order is authorized by law. Allowing a court order to function as a warrant when there is no independent authority for a seizure would render CrR 2.3 meaningless. Limiting the scope of Garcia-Salgado preserves the integrity of CrR 2.3. We hold that Garcia-Salgado is inapplicable and that the trial court’s order cannot be treated as the functional equivalent of a warrant.”

Based on these decision the Court of Appeals held that the trial court erred in ordering the seizure of Meza’s credit union account.

My opinion? GOOD opinion. Very sensible and reasonable. It’s refreshing that the COurt of Appeals followed the law and made the right decision.