Monthly Archives: August 2016

A “Missing Witness” Argument Cuts Both Ways.

Image result for when you point the finger, you have three pointing back

Fair warning folks, this is a post only trial attorneys can appreciate . . .

In State v. Goss, the WA Supreme Court held a defendant was properly barred from arguing that the jury could draw a negative inference from the fact the State had not offered a recording of a detective’s interview with the defendant.

Mr. Goss was charged with Goss was initially charged with one count of Child Molestation Second Degree on accusations that he sexually assaulted his former fiance’s granddaughter. Later, a charge of Attempted Child Molestation Third Degree was added.

The police interviewed Mr. Goss when the accusations first arose. The interview was recorded at the police station, and lasted 50 minutes.

Before trial, Goss moved to redact portions of the recorded interview relating to (1) pornography Goss’s home computer and (2) prior allegations of child molestation made against him. The State indicated that it did not plan to play the recording in its case in chief. The trial judge reserved ruling until and unless the recording was offered. Neither side moved to admit the recording during trial.

At closing argument, Goss was barred from arguing that the State failed to produce the video.

Goss was found guilty of the charges. He appealed. Among other arguments, he said the Prosecutor’s failure to admit the interview at trial was analogous to a party not offering an available witness. This is also called the “Missing Witness Doctrine, which is well-described in State v. Blair. ” Under the “missing witness” or “empty chair” doctrine it is a well-established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, he fails to do so, the jury may draw an inference that it would be unfavorable to him.

However, the WA Supreme Court rejected these arguments. It pointed out that Goss himself moved to redact portions of the recorded interview relating to prior allegations of child molestation made against Goss by his daughter. The Court also reasoned The detective who questioned Goss on the tape testified at trial. Consequently, Goss could have cross-examined the Officer on the witness and possibly got the recorded interview admitted, redacted or otherwise.  Coincidentally, ruled the Court, “Nothing in this record suggests the State’s decision not to play the tape was nefarious. Goss has not shown the trial court abused its discretion because the tape was analogous to a missing witness. ”

My opinion? It’s difficult to say the WA Supremes decided this wrong. I’ve won jury trials where the Prosecution has pointed the finger at Defense for failing to produce “missing witnesses.” Usually, these attacks from the State are rejected by courts because the State – and not the defense – carries the burden of proof. Asking the defendant to come up with more witnesses is a sly (and unlawful) way of shifting the burden to the defense.

The “Missing Witness” doctrine is rather funny in that it points the finger right back at the attorney who claims the other side failed to produce the “magic witness.”

WPIC 5.20 discusses the limited use of the “Missing Witness” defense/offense tactic. Basically, if a person who could have been a witness at the trial is not called to testify, jurors may be able to infer that the person’s testimony would have been unfavorable to a party in the case. Jurors may draw this inference only if they find that:

(1) The witness is within the control of, or peculiarly available to, that party;

(2) The issue on which the person could have testified is an issue of fundamental importance, rather than one that is trivial or insignificant;
(3) As a matter of reasonable probability, it appears naturally in the interest of that party to call the person as a witness;
(4) There is no satisfactory explanation of why the party did not call the person as a witness; and
(5) The inference is reasonable in light of all the circumstances.

The tactic is to be used sparingly, and with good reason: it points the finger right back at the accusing party! Here, that’s exactly what the WA Supreme Court decided.

Kansas Cops Can’t Stop Colorado Drivers Just Because they Suspect Marijuana Possession.

Image result for marijuana 10th circuit search marijuana

In Vasquez v. Lewis & Jimerson, the 10th Circuit Court of Appeals reinstated a lawsuit filed by a Colorado motorist against two Kansas Highway Patrol officers who pulled him over and searched his vehicle for marijuana as he was driving alone at night through Kansas on his way to Maryland.

The KHP officers, Richard Jimerson and Dax Lewis, stopped Vasquez when they could not read the temporary tag taped to the inside of the car’s tinted rear window. The officers believed they were justified in searching the vehicle because Vasquez was a citizen of Colorado driving on I-70, a “known drug corridor,” in a recently purchased, older-model car. They said he also seemed nervous.

On February 28, 2012, Vasquez filed this lawsuit against the Officers under 42 U.S.C. § 1983 – which allows citizens to sue the government for violating Constitutional Rights – and argued that the officers violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. At first, his lawsuit was dismissed. He took his lawsuit up on appeal.

The 10th Circuit found the officers violated Vasquez’s Fourth Amendment rights in searching his car without his consent. Nothing illegal was found. He had nothing more than an out-of-state license plate from Colorado, a state that has legalized marijuana. The Court found the officers violated Vasquez’s rights in searching his car:

“Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate,” the ruling states.”

My opinion? Good decision. And it makes sense.  Twenty-five states permit marijuana use for medicinal purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law.  Our federal circuit courts are simply reading the writing on the wall.

Indeed, it even appears our federal courts are actually leading the charge toward the national legalization of marijuana. In my blog post titled, 9th Circuit Court of Appeals Bans Pot Prosecutions, I discuss recent news that the 9th Circuit prevented the U.S. Department of Justice from prosecuting pot charges if State laws allow for its legal possession.

Times are changing . . .

9th Circuit Court of Appeals Bans Pot Prosecutions

In U.S. v. McIntosh, the 9th Circuit Court of Appeals banned the U.S. Department of Justice (DOJ) from prosecuting medical marijuana cases if no state laws were broken.

U.S v. McIntosh consolidated 10 pending cases in Washington in California where defendants who sold medical marijuana were indicted for violating the Controlled Substance Act. The defendants sought dismissal of their charges or to enjoin their prosecutions under the Consolidated Appropriations Act, which prohibits the DOJ from spending funds to prevent states’ implementation of their medical marijuana laws.

Although marijuana remains illegal under federal law, Congress has barred the Justice Department from spending money to prevent states from regulating the use or sale of medical pot.

Federal prosecutors argued unsuccessfully that Congress meant only to bar the department from taking legal action against states and that it could still prosecute individuals who violate federal marijuana laws. The court rejected that, saying that medical marijuana-based prosecutions prevent the states from giving full effect to their own measures Judge Diarmuid F. O’Scannlain wrote the following in his opinion:

“DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws . . . If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.”

“If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana.”

With that, the Court of Appeals remanded the case back with instructions to conduct evidentiary hearings to determine whether Appellants complied with state law.

Marijuana activists and lawyers representing medical pot suppliers say the ruling is a significant addition to the growing support for broad legalization of the drug.

“This is the beginning of the end of federal prosecutions of state medical marijuana dispensary operators, growers and patients,” said Marc Zilversmit, an attorney representing five people who operate four marijuana stores in Los Angeles and nine indoor growing sites in Los Angeles and San Francisco.

My opinion? Good decision. These days, marijuana is legal for medicinal or recreational use in 25 states and the District of Columbia. In addition, ten states have marijuana legalization measures on the November ballot. This case is a positive shift toward legalizing marijuana on a federal level.

New Washington Driver’s-License Exam Tackles Pot & Cellphone Risks

A recent news article by reporter E.J. Smith III of the Seattle Times reports that today’s driver’s license exams require not only a more thorough understanding of longstanding traffic laws but also an understanding of the risks associated with smartphones and the legalization of pot.

“We wanted to add more information about impaired driving beyond the information about driving while intoxicated,” said Department of Licensing spokesman Brad Benfield. “With all the growth of cellphone use … we wanted to make sure that type of information was highlighted in the driver’s guide and test.”

E.J. Smith III reports these driving issues are timely and should be addressed. For example, he quotes a recent study by the AAA Foundation for Traffic Safety concluded that teen drivers spend nearly a quarter of their driving time distracted. Additionally, one in six drivers involved in fatal crashes in Washington in 2014 had recently used marijuana, which is the most recent data available. Finally, according to the NSC preliminary estimates, 567 people died in motor-vehicle crashes in Washington last year, a 21 percent increase over 2014. Nationally, the increase was 8 percent.

“The old test didn’t have any questions on distractions,” said Nur Hassan, who has run MLK Simple Driving School in Seattle for three years. “Driving is very serious business, so people should not try to take it lightly or try to put in other distractions.”

My opinion? Kudos to the Department of Licensing for addressing issues of distracted driving and marijuana use. This is an excellent step in the right direction. Today’s teen driver’s need to know the risks of their driving behavior.

I practice a wide range of criminal defense, everything from low-level misdemeanors to Federal charges. I’m honored to represent them through difficult times. I’ve assisted clients who are minors charged with various forms of DUI (drugs as well as alcohol). Many didn’t know the slightest amount of alcohol or drugs in their system can lead to DUI charges. Others didn’t know the repercussions of their actions.

I’m a firm believer that education is the key to prevention. That said, if you’re interested in more information on these issues then please review my Drug DUI practice area and my Legal Guide titled Drug DUI’s in Washington: The Issues & Recent Case Law.

Gift Cards Are “Access Devices”

In State v. Nelson, the WA Court of Appeals Division II reversed the dismissal of the defendant’s case and decided a gift card is, in fact, an access device.

Defendant Angel Rose Marie Nelson was a Kmart employee. A surveillance video showed that Nelson left her cash register three times to retrieve an empty gift card, then activated each card by adding funds to it without adding cash to the cash register.

She activated an Amazon.com gift card for $100, a MasterCard gift card for roughly $205, and a JoAnn’s Fabric & Craft Store gift card for $25. She later used at least two of these cards.

The State charged Nelson with one count of second degree theft of an access device and one count of second degree possession of a stolen access device. Nelson moved to dismiss the charges under CrR 8.3(c) and Knapstad motion. She argued that the term “access device” could not include gift cards. The superior court granted Nelson’s motion, ruling that, as a matter of law, a gift card is not an access device. The State appealed.

Ultimately, the Court of Appeals reversed the dismissal of Nelson’s case.

First, the Court reasoned that, under MERRIAM-WEBSTER UNABRIDGED DICTIONARY, gift cards can access an account because the plain meaning of the word “account” is broad enough to cover a gift card’s balance:

“Under this definition, a gift card can access an account as described above. It is a card that can be used to receive goods or services of a specified value. A gift card thus shows a resulting balance. It is a device that can be used to access a record of a business relationship with outstanding credits, debits, or obligations, and a sum of money—that is, an account.”

In conclusion, the Court held that the definition of “access device” can include gift cards so long as they are a means of account access. The word “account” is not limited to a bank account because the plain language of the statute includes no such limitation. The funds to which a gift card provides access can be an account under this statute.

Jail Phone Conversations Are Admissible At Trial

In State v. Dere, the Court of Appeals Division I held that a telephone conversation between a jail inmate and a person outside the jail is not a private communication when the participants are advised that the call will be recorded and must confirm their understanding that they are being recorded. Also, a recording of such a conversation is admissible evidence against the noninmate as well as against the inmate.

Defendant Zakaria Dere was a co-defendant in a Robbery. Before the trial, Dere posted bail and was released from custody. Dere received several calls from Mohamed Ali, a codefendant who remained in jail. Their conversations were recorded by the jail’s telephone system.

Unfortunately for Dere, the recordings gave evidence that Dere was an accomplice in the robbery. He argued a CrR 3.5 motion to suppress., however, the trial court denied his motion. Ultimately, Dere’s statements were used against him by the State at his trial. He was found guilty of Robbery. He appealed.

WASHINGTON PRIVACY ACT

The Court of Appeals addressed Dere’s argument that the admission of the recordings violated the Washington Privacy Act under RCW 9.73. Under this statute, recordings obtained in violation of the act are inadmissible for any purpose at trial. The act also makes it unlawful to intercept or record private communications transmitted by telephone without first obtaining the consent of all participants in the communication. Dere cited State v. Modica in arguing that a communication is private when parties manifest a subjective intention that it be private and where that expectation is reasonable.

Despite Dere’s arguments, the Court of Appeals reasoned that Dere’s conversations with Ali were not private communications. Dere and Ali did not have a reasonable expectation of privacy in their telephone conversations because they knew their calls were recorded and subject to monitoring. “Because the calls were not private communications, the privacy act does not apply,” reasoned the Court.

WASHINGTON CONSTITUTION

Next, the Court of Appeals addressed Dere’s claims that the recording of his calls violated his constitutionally protected privacy rights. The Court reasoned that although Article I, section 7 of the Washington Constitution generally protects the privacy of telephone conversations, calls from a jail inmate are not private affairs deserving of protection:

” A jail recording system . . . and its operation typically demonstrates that at least one participant in a conversation has consented to the recording. The inspection of other forms of communication with inmates, such as ingoing and outgoing mail and packages, is not an invasion of a privacy interest protected by the Washington Constitution so long as the inmate is informed of the likelihood of inspection.”

With that, the Court of Appeals concluded there was no violation of Dere’s constitutional privacy interests. The Court upheld Dere’s Robbery conviction.

My opinion? Obviously, this case shows that suppressing jail inmate conversations is difficult to impossible; especially when the automated voice informs the callers that the conversations are being recorded. I always advise my jailed clients to limit their phone conversations with friends and family members. Speaking from experience, I’ve conducted many trials where Prosecutors use recorded jail inmate against my clients in attempts to incriminate them. Usually, the recorded conversations are suppressible on other grounds as being prejudicial, irrelevant, confusing, misleading etc. under ER 403. Still, trying to suppress incriminating statements is a terrible position to be in; especially when avoidable.

Abandoned Cell Phone Searches

In State v. Samalia, the WA Supreme Court held that although cell phone information is protected by the Constitution, the defendant abandoned this privacy interest when he voluntarily left the cell phone in a stolen vehicle while fleeing from police.

Defendant Adrian Sutlej Samalia fled on foot from a stolen vehicle during a lawful traffic stop, leaving his cell phone behind in the vehicle. After Samalia successfully escaped, the police searched the cell phone without a warrant and made contact with one of the numbers stored in the cell phone. That contact led to Samalia’s identification as the owner of the phone and driver of the stolen vehicle.

On these facts, the State charged Samalia with Possession of a Stolen Vehicle. Samalia moved to suppress the cell phone evidence under CrR 3.6, arguing that the officers violated his constitutional rights when they seized and searched his cell phone with neither a warrant nor a valid exception to the warrant requirement.

The State responded that the warrantless search was valid under the abandonment doctrine. The trial court held that Samalia voluntarily abandoned any privacy interest that he had in the cell phone by leaving it in the stolen vehicle, which he also voluntarily abandoned, while fleeing from Office Yates. After denying Samalia’s suppression motion and subsequent motion for reconsideration, the trial court found Samalia guilty as charged in a bench trial.  Samalia appealed to Division III of the WA Court of Appeals. They upheld the trial court’s decision under the abandonment doctrine.

Ultimately, the WA Supreme Court decided the search was lawful and upheld Samalia’s conviction. It reasoned that article I, section 7 of Washington’s Constitution states that “no person shall be disturbed in his private affairs … without authority of law,” and although the WA Constitution embraces the privacy expectations protected by the Fourth Amendment to the United States Constitution – and in some cases, may provide greater protection than the Fourth Amendment – the search was nonetheless lawful under the abandonment doctrine.

ABANDONMENT DOCTRINE

The Court reasoned that the “abandonment doctrine,” a person loses normal privacy interests in their property upon abandoning it. The abandonment doctrine is not rooted in any obligation by law enforcement to find the owner of property. Basically, it allows law enforcement officers to retrieve and search voluntarily abandoned property without implicating an individual’s rights. The court reasoned that in this sense, voluntarily abandoned property is different from lost or mislaid property, in which the owner maintains a privacy interest in the property and the finder may have an obligation to seek out the owner to return the property.

Thus, when an individual flees from law enforcement and leaves a cell phone behind in a stolen vehicle, a trial court may find that the cell phone is no less abandoned than any other item that was also left in the stolen vehicle.

Here, the Court declined to find an exception to the abandonment doctrine for cell phones. Consequently, the WA Supreme Court decided the trial court properly found abandonment under these facts.

In conclusion, the WA Supreme Court affirmed Samalia’s conviction on the grounds that the information derived from the search of Samalia’s cell phone was properly admitted as evidence under the abandonment doctrine.

DISSENTING OPINION

Justice Yu authored the dissenting opinion, which was also signed by Justice Stephens and Justice Sheryl Gordon McCloud. In short, these dissenting justices all agreed that common law doctrines like the Abandonment Doctrine cannot be applied mechanically to new technology. Second, the abandonment doctrine applies to personal property generally and not digital technology. Third, digital cell phone data remains a private affair, even if the cell phone itself has been voluntarily abandoned.

“The people of Washington are entitled to hold safe from government intrusion the unprecedented wealth of personal information accessible through a cell phone, even if the phone itself has been voluntarily abandoned. If government officials discover a cell phone and want to search its digital data for evidence of criminal activity, they may seize and secure the cell phone to preserve any evidence it may contain, but they must obtain a warrant before searching its digital data. Because the police did not obtain a warrant here, the search was unlawful and its fruits should have been suppressed. I respectfully dissent.”

My opinion?

Last year, I discussed this case when the Court of Appeals decided it in my blog post titled, State v. Samalia: Search of Abandoned Cell Phone is Lawful. Again, I disagree with the court’s majority decision in this case. The trial court should have suppressed the cell phone search back in the beginning of this case. Under these circumstances, the abandonment doctrine is simply not the proper legal vehicle to permit a cell phone search. Using this doctrine leaps too far in the wrong direction. Kudos to the dissenting judges in this case. Although the decision was not deeply divided (6-3), the dissenters got it right. Officers need to get search warrants. Period.

My advice to the general public?

Never leave incriminating evidence on your cell phone. No pictures, videos, nothing. A lost phone could now be considered “abandoned” and searchable by authorities.