Monthly Archives: January 2017

Overbroad Parolee Searches

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In State v. Livingston, the WA Court of Appeals Division II held that evidence collected during a warrantless search of the defendant’s vehicle following the defendant’s arrest on a D.O.C. warrant is only admissible if there is a nexus between the community custody violation and the searched property.

On May 29, 2014, DOC Officer Thomas Grabski observed a person, later identified as Darian Livingston, who he recognized as having an outstanding DOC arrest warrant; Livingston was washing a vehicle alone at a car wash. Officer Grabski called for assistance, and two more officers arrived to assist him.

When the additional officers arrived, Livingston was talking with a person on a motorcycle. The person on the motorcycle drove away when the officers approached. Livingston was the only person near the vehicle. After confirming Livingston’s identity and the warrant, the officers arrested Livingston.

The officers then asked Livingston about the vehicle he had been washing. He said it belonged to his girlfriend who had gone to a nearby store, but he later admitted that his girlfriend was in Seattle and could not pick up the vehicle.

Livingston also admitted that he regularly drove the vehicle and that he had placed the key on the motorcycle when he first saw the officers. At the time of his arrest, Livingston was on active DOC probation. The DOC warrant issued in his name said there was “reasonable cause to believe Mr. Livingston] violated a condition of community custody.

DOC Officers Grabski and Joshua Boyd conducted a “compliance search” of the vehicle. When they conducted the search of the vehicle, the officers did not have any information about the nature of the violation that triggered the issuance of the DOC warrant.

Inside the vehicle, the officers found mail and other documents with Livingston’s name on them, a single pill, and a prescription bottle containing eight pills. In the vehicle’s trunk, the officers found a black backpack containing scented oils, a loaded .40 caliber handgun, a box of ammunition, and more mail addressed to Livingston. During booking, Livingston revealed that he was also carrying a baggie of cocaine on his person.

The State charged Livingston with first degree unlawful possession of a firearm (count I), unlawful possession of a controlled substance with intent to deliver (cocaine) (count II), bail jumping (count III), unlawful possession of a controlled substance (oxycodone) (count IV), and unlawful possession of a controlled substance (hydrocodone/dihydrocodeinone) (count V). Before trial, Livingston moved to suppress the evidence discovered during the vehicle search. The judge denied Livingston’s motion. He appealed.

Livingston argued that the trial court erred in deciding that the vehicle search was lawful under RCW 9.94A.631(1) because the officers had a reasonable belief that he had violated a community custody condition or sentencing requirement. Instead, he asked the Court of Appeals to follow State v. Jardinez and hold that to justify such a search, the property searched must relate to the violation that the community custody officer (CCO) believed had occurred.

First, the Court of Appeals reasoned that both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution prohibit warrantless searches unless an exception exists. Washington law recognizes, however, that probationers and parolees have a diminished right of privacy that permits warrantless searches based on reasonable cause to believe that a violation of probation has occurred. This reduced expectation of privacy for parolees is recognized in RCW 9.94A.631(1), which states,

If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a [CCO] may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Second, the Court reasoned that pursuant to State v. Jardinez, there must be a nexus between the violation and the searched property. In Jardinez, the defendant’s parole officer searched his iPhone for no reason and found evidence linking Mr. Jardinez to criminal behavior. He was charged and convicted. On his appeal, the Court of Appeals examined the following official comment from the Sentencing Guidelines Commission (Commission) on RCW 9.94A.631(1):

“The Commission intends that [CCOs] exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the [CCO] upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the [CCO] believes to have occurred.”

Noting that Washington courts “have repeatedly relied on the Commission’s comments as indicia of the legislature’s intent,” Division Three concluded that the italicized portion of this comment “demands a nexus between the searched property and the alleged crime.” Following Jardinez, the Court of Appeals held that the trial court erred when it failed to consider whether there was a nexus between the violation and the searched property.

With that, the Court affirmed Mr. Livingston’s bail jumping conviction, count III, and his unlawful possession of a controlled substance conviction charged as count II. However, the court reversed the order denying Livingston’s motion to suppress the evidence discovered in the vehicle search and remanded Livingston’s case back to the trial court for further proceedings consistent with this opinion.

My opinion? Good decision. i blogged about Jardinez in another post, and found that opinion compelling as well. Excellent use of prior precedents and stare decisis.

Promoting Prostitution

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In State v. Barbee, the WA Supreme Court held that a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved.

Defendant Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee “supervised” during 2010 were SE, BK, and CW.

S.E.

SE met Mr. Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as Backpage.com, SE would also work “the track” (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She was expected to make $1,000 a day or stay up at night until she met that quota.

All of her earnings went to Barbee, who required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in “escorting.” During 2010, two of the women she recruited on Barbee’s behalf were two 18-year-olds, BK and CW.

B.K.

BK soon began working as a prostitute for Barbee, initially working out of a motel room and later moving to “the track.”  After BK was arrested and then released from jail, she went to her parents’ house, intending to stop working for Barbee. A few months later, Barbee texted BK and convinced her to come to his apartment in Seattle. BK soon began living in the apartment and worldng for Barbee again. She testified at trial that Barbee took the keys to her car and refused to return them, would not allow her to leave the apartment during the day, and allowed her to go shopping or visit her daughter only if he accompanied her. At some point in late 2010, BK left and stopped working for Barbee permanently.

C.W.

Eighteen-year-old CW also worked for Barbee during 2010, but for a comparatively short time. She was living in Bellingham and working at a nursing home when SE began communicating with her via MySpace in early May. Excited about the idea of becoming more independent, CW packed her bags, borrowed a friend’s car, and moved to Seattle to meet SEat a Motel6 on Pacific Highway South. Once she arrived, CW was told that she would be worldng for Barbee as an escort, that all of her money would go to him, and that he would provide her with clothes, jewelry, and a place to live.

A few weeks later, CW became disillusioned and texted Barbee that she was quitting. She left and never had contact with Barbee again.

THE ARREST & THE VERDICT

That December, SE arranged online to meet a client for an out-call at the Hampton Inn in Kent. Barbee drove SE to the motel and waited for her while she went inside. The client she had arranged to meet turned out to be an undercover officer. When SE arrived and agreed to have sex with the detective, she was arrested. After a short car chase, police officers arrested Barbee as well.

The State charged Barbee with two counts of promoting sexual abuse of a minor (SE), one count of first degree promoting prostitution (BK), one count of second degree promoting prostitution (CW), one count of leading organized crime, two counts of first degree theft from the Social Security Administration, and one count of second degree theft from the Department of Social and Health Services (DSHS).

The jury found Barbee guilty on all counts, except that they found him guilty of the lesser included offense of second degree promoting prostitution of BK.

THE APPEAL

Barbee claims that the two counts of promoting prostitution of BK and CW constitute a single unit of prosecution, or that he committed a single “enterprise” of promoting prostitution that involved two prostitutes. On Appeal, he argues that his two convictions for promoting prostitution of”different women as part of the same enterprise over the same period of time” encompassed a single unit of prosecution in violation of the double jeopardy prohibition clauses of our federal and state constitutions.

THE ISSUE

The WA Supreme Court addressed whether Barbee’s two counts of second degree promoting prostitution constitute a single unit of prosecution. Here, it appears so.

THE CONCLUSION

The Court decided that yes, Barbee’s two counts of Second Degree Promoting Prostitution constituted two distinct units of prosecution.

THE COURT’S ANALYSIS OF “UNITS OF PROSECUTION”

The WA Supreme Court reasoned that Double Jeopardy is violated when a person is convicted multiple times for the same offense. When the convictions are under the same statute, the court must ask what ‘”unit of prosecution”‘ the legislature intended as the punishable act under the specific criminal statute.

The Court further reasoned that both constitutions protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. Thus, while a unit of prosecution inquiry is “one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent.”

Furthermore, the court reasoned that when engaging in statutory interpretation, its goal is to ascertain and carry out the intent of the legislature: “To determine legislative intent and thus define the proper unit of prosecution, we first look to the statute’s plain meaning. If the plain meaning of the statute is ambiguous, we may also determine legislative intent by reviewing legislative history.”

Once we have defined the proper unit of prosecution, we perform a factual analysis to ascertain whether the facts in a particular case reveal that more than one “unit” is present.

THE COURT’S REASONING ON “UNITS OF PROSECUTION” IN ‘PROMOTING PROSTITUTION’ CASES

The Court reasoned that the plain Language of the Promoting Prostitution statute unambiguously authorizes multiple convictions when an individual promotes prostitution of multiple people:

“While the ‘evil’ of promoting prostitution may be the same regardless of how many prostitutes are “promoted,” it does not follow that a person is ‘equally guilty’ whether he pimps one prostitute or several. Rather, in statutes that involve crimes against persons, that guilt compounds in magnitude depending on the number of lives that are affected.”

Ultimately, two “units” were clearly proper here: CW and BK are two distinct “persons” who were both exploited by Barbee.

CONCLUSION

In sum, the WA Supreme Court held that the legislature, by use of the language “a person,” unambiguously authorized a unit of prosecution for each person promoted. “When a defendant promotes prostitution of more than one individual, he or she may be prosecuted for more than one count.” Accordingly, the Court affirmed the Court of Appeals’ decision that Barbee’s convictions for promoting prostitution of BK and CW did not violate prohibitions on double jeopardy.

Strict Liability Offenses

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In State v. Burch, Division II of the WA Court of Appeals held that in order to convict a defendant of vehicular homicide or vehicular assault, the State need not prove that a driver acted with ordinary negligence in the operation of a motor vehicle if it merely proves that the driver was under the influence of alcohol or drugs while driving that vehicle.

In December 2014, Burch was driving across an icy bridge when her truck spun out, slid off the road, and hit two men who were investigating the scene of an earlier accident. One of the men died and the other received serious injuries, including multiple broken bones and a severe ear laceration. Burch was uncooperative with law enforcement officers who responded to the scene. During their contact with Burch, the officers noticed that she smelled strongly of intoxicants.

They restrained Burch and brought her to a hospital to draw blood to test for intoxicants. Testing of that sample showed a blood alcohol concentration of .09, indicating a concentration between .11 and .14 two hours after the accident. The State charged Burch with vehicular homicide and vehicular assault, alleging that she drove or operated a motor vehicle while under the influence of intoxicating liquor or any drug or any combination of the two, in a reckless manner, and with disregard for the safety of others.

The jury found Burch guilty of both vehicular homicide and vehicular assault. In special verdicts, the jury found that Burch had driven while under the influence of intoxicating liquor or drugs, but had not driven recklessly. However, the jury was unable to agree as to whether she had driven with disregard for the safety of others. Burch appealed her convictions.

The Court of Appeals addressed the sole issue of whether the crimes of vehicular homicide and vehicular assault committed while under the influence of alcohol or drugs require the State to prove ordinary negligence in addition to the fact that the defendant was under the influence of alcohol or drugs.

Here, the Court of Appeals disagreed with Burch’s arguments that ordinary negligence is an element of vehicular homicide by driving under the influence of alcohol or drugs.

The Court also reasoned, “Offenses that criminalize a broad range of apparently innocent behavior are less likely to be strict liability offenses.  However, vehicular homicide committed by a driver under the influence encompasses little, if any, seemingly innocent conduct:

“Driving under the influence of alcohol or drugs is itself a serious criminal offense. RCW 46.61.502(1). Therefore, operating a motor vehicle under the influence is rarely, if ever, innocent behavior. Because vehicular homicide while under the influence of intoxicating liquor or drugs requires the State to prove the facts of both impairment and operation of a motor vehicle, the crime necessarily encompasses primarily or solely criminal behavior.”

For those who don’t know, a “strict liability offense” strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state.  In criminal law, possession crimes and statutory rape are both examples of strict liability offences.

With that, the Court of Appeals held that the legislature intended to impose strict liability for vehicular homicide while under the influence of alcohol or drugs: “These considerations, along with the analysis of relevant statutory language above, lead to a single conclusion: the trial court did not err by instructing the jury that it could convict Burch without finding ordinary negligence or any other culpable mental state.”

The Court also held that the legislature intended vehicular assault by driving under the influence to be a strict liability offense, and that the trial court did not err by instructing the jury that it could convict without finding that Burch acted with ordinary negligence.

My opinion? Vehicular Homicide and Vehicular Assault are particularly difficult to mount a legal defense against given the “strict liability” facets of the law. The prosecution does not need to prove intent as long as the offender had drugs or alcohol in their sytstem at the time of the offense. Period.

Brady v. Maryland to the Rescue

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In United States v. Yepiz, the Ninth Circuit Court of Appeals remanded the convictions for numerous defendants so that it may engage in the necessary fact-finding to ascertain whether a government’s witness received benefits that were undisclosed to the defendants at the time of trial.

The defendants are all alleged to be members or associates of the Vineland Boys (“VBS”), a gang located in Southern California. On November 30, 2005, a grand jury returned a 78-count first superseding indictment charging appellants and approximately forty other individuals with crimes arising out of their membership or association with VBS.

Seven of the nine defendants were charged with violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and with RICO conspiracy, and all appellants were charged with federal distribution of narcotics. Other charged counts included violent crimes in aid of racketeering (“VICAR”), attempted murder, and possession with intent to distribute cocaine, methamphetamine, and marijuana.

Trial commenced on August 9, 2006. On October 26, 2008, the jury returned a verdict of not guilty as to five counts, a mistrial as to one count, and a verdict of guilty as to the remaining counts. The defendants timely appealed their convictions and sentences. This case was vigorously litigated over the course of two-and-a-half months. It presented the federal district court with a gauntlet of complex legal questions, and required it to grapple with unique concerns to courtroom safety and logistics.

At trial, one of the government’s cooperating witnesses was Victor Bulgarian. In September of 2006, on direct examination, Bulgarian testified that he was previously arrested for possession and sale of methamphetamine in an unrelated case, and agreed to cooperate with law enforcement in exchange for a lesser sentence, and a grant of immunity for his testimony as a government witness.

Bulgarian testified to having received no benefits from the government in exchange for his testimony. However, on cross-examination, Bulgarian testified to having received $5,000 in cash from the government after he testified to the grand jury in this case. Defendants noted that this testimony directly contravened a letter the government sent to them asserting that no witnesses received any benefits from the government in exchange for their testimony. The government acknowledged that it was “a glaring mistake,” but argued that the error was cured because defendants had ample opportunity to cross examine Bulgarian on the subject of the $5,000 payment. Defendants did not raise the issue again either at trial or in a post-trial motion.

Approximately three years later, on August 20, 2009, Bulgarian testified in the trial of defendant Horacio Yepiz. On direct examination, Bulgarian once again testified to having received no benefit from the government in return for his testimony. On cross examination, however, Bulgarian testified that since his arrest for drug-related crimes in 2004, he had received roughly $100,000 to $200,000 in cash from five different law enforcement agencies, although he was unable to give an exact figure. He explained that he was able to solicit paid work from these agencies whenever he wanted (“I decide when I want to work, and when I work, I get paid.”). Indeed, he testified to having received $800 for three hours of work the week prior.

Appellants now argue that the government violated Brady v. Maryland by failing to disclose the full extent of the benefits Bulgarian received at trial. For those who don’t know, Brady v. Maryland was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense.

On Appeal, the Ninth Circuit reasoned that, under Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The Ninth Circuit further reasoned that in order to prevail on a Brady claim, the defendant must show that the evidence was material. Materiality is satisfied when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”

Here, the Ninth Circuit ruled that the government’s attempts to minimize the significance of Bulgarian’s testimony are not persuasive in light of the record:

“While some of Bulgarian’s testimony was independently corroborated, it nonetheless played a substantial role in the government’s case-in-chief. In particular, Bulgarian’s testimony was relied upon heavily by the government to show that VBS was a ‘criminal enterprise’ under RICO. Therefore, had the alleged Brady materials been made available to appellants at trial, there is a “reasonable probability” that the result of the proceeding would have been altered.”

With that, and In light of the disputed facts surrounding defendants’ Brady claim, the Ninth Circuit remanded the convictions to the district court so that it may engage in the necessary fact-finding to ascertain whether Mr. Bulgarian received benefits that were undisclosed to appellants at the time of trial, and if so, whether Brady was violated as to each convicted count.

My opinion? Good decision. Since Brady was decided in 1963, the U.S. Supreme Court has required that prosecutors and police officers disclose evidence that impeaches the credibility of any state witness, including police officers. Examples of impeachment evidence include false testimony, misrepresentations made in court documents, false information in police reports and internal police disciplinary proceedings.

Unfortunately, that is not being done.  There is no uniform system compiling Brady data; each county’s prosecuting attorney has different methods for assembling Brady information and different perspectives on when disclosure is constitutionally required. Naturally, this creates problems for defense counsel seeking exculpatory information from prosecutors and law enforcement agencies. Fortunately, competent defense counsel has ways of overcoming these challenges, as demonstrated by the excellent representation given to the defendants in this case.

New Federal Data Shows Decrease in Drunk Driving Rates

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According to reporter Christopher Ingraham of the Washington Post, new federal statistics show that the rate of drunken driving in the United States fell to a 13-year low in 2014, the latest year for which data is available. The rate of driving under the influence of illicit drugs has not changed meaningfully in recent years but remains slightly lower than it was in 2008 and 2009 at the start of the Obama administration.

Here’s a summary of some other findings:

  • In 2014, 27.7 million people aged 16 or older (11.1 percent) drove under the influence of alcohol in the past year, and 10.1 million (4.1 percent) drove under the influence of illicit drugs in the past year. About 7.0 million (2.8 percent) drove under the influence of alcohol and illicit drugs in the past year, including 5.9 million (2.4 percent) who drove under the simultaneous influence of alcohol and illicit drugs in the past year.
  • The percentage of people driving under the influence generally increased with age through the young adult years and then declined with age thereafter; percentages were higher among males than females.
  • The percentage of people aged 16 or older who drove under the influence of alcohol in 2014 (11.1 percent) was lower than the percentages in 2002 through 2012 (ranging from 11.8 to 15.3 percent).
  • The percentage of people aged 16 or older who drove under the influence of illicit drugs was lower in 2014 (4.1 percent) than in 2002 through 2006 and in 2009 through 2010.
  • The percentage of people aged 16 or older who drove under the simultaneous influence of alcohol and illicit drugs was lower in 2014 (2.4 percent) than in 2002 through 2010 (ranging from 2.9 to 3.4 percent).

Ingraham reported that although experts caution that while the trend is heading in the right direction, there’s still a lot of work to be done. “Although it is heartening to see a downward trend in levels of driving under the influence of alcohol, it still kills thousands of people each year and shatters the lives of friends and loved ones left behind,” said Frances Harding, director of the Center for Substance Abuse Prevention at SAMHSA, the agency that produces the survey.

The SAMHSA survey showed that young adults — particularly men ages 21 to 25 — had by far the highest impaired driving rates. More than 1 in 5 men ages 21 to 25 drove drunk in 2014, nearly 1 in 7 drove under the influence of other drugs, and roughly 1 in 12 drove while simultaneously drunk and drugged.

One the other hand, young adults have also seen the greatest reductions in drunken driving prevalence over the past 13 years. Since 2002, the drunken driving rate fell by fewer than three percentage points among drivers age 26 and older. But the rate among drivers ages 21 to 25 dropped by more than 10 percentage points. And the prevalence among the youngest drivers, ages 16 to 20, fell by more than half.

Ingraham reports there’s no single factor driving the decline in drunken driving rates. The Centers for Disease Control and Prevention credits interventions like strong drunken driving laws, public awareness campaigns, and ignition interlock systems that don’t allow drunk drivers to start cars.

Some states are experimenting with innovative programs that essentially take away the right to drink alcohol, period, for people convicted of certain alcohol-related crimes. There’s also evidence that ride-sharing services like Uber can reduce drunken driving rates, although not all researchers agree on this.

My opinion? This is extremely good news. Although it’s important to save lives by reducing traffic accidents through education, prevention, and all other possible measures; it’s equally important that defendants facing these criminal charges hire capable and competent defense counsel as soon as possible to protect their rights, review the evidence and ensure a fair trial when necessary.

Contact my office for a free consultation if you, a friend or family member face DUI or related charges.

What Happened After Voters Legalized Recreational Marijuana?

Reporter Christopher Ingraham of the Washington Post wrote an article discussing how that the availability of recreational marijuana — in Colorado and elsewhere — is having little to no effect on teens’ propensity to smoke weed.

COLORADO

In his article, Ingraham supports his claim with the official statistics out of Colorado through 2015. It’s also what federal data shows nationwide through this year. And it’s also backed up by other federal surveys of drug use in the states where marijuana is legal.

It appears the data on this point has been consistent enough that longtime skeptics of the merits of marijuana legalization, like Nora Volkow of the National Institute on Drug Abuse, are expressing surprise at the findings. “We had predicted based on the changes in legalization, culture in the U.S. as well as decreasing perceptions among teenagers that marijuana was harmful that [accessibility and use] would go up,” Volkow told U.S. News and World Report earlier this month. “But it hasn’t gone up.”

WASHINGTON

However, a study out Tuesday in the journal JAMA Pediatrics flies somewhat in the face of the new conventional marijuana wisdom. Examining marijuana use among high school students in Washington state two years before and after the vote to legalize in 2012, it finds that rates of marijuana use increased by about 3 percent among 8th- and 10th-graders over that period.

INTERPRETING THE FINDINGS

The authors posit that reduced stigma about marijuana use is one factor leading to the results that they observed.

“Our study suggests that legalization of marijuana in Washington reduced stigma and perceived risk of use,” said lead author Magdalena Cerdá of the University of California in Davis in a news release, “which could explain why younger adolescents are using more marijuana after legalization.”

The findings are something of a puzzle. The study found no change in marijuana use among 12th-graders in Washington state, which the authors said could be because the 12th-graders in the study were old enough that “they had already formed attitudes and beliefs related to marijuana use” before the legal change.

The study also found no change in use among students at any grade level in Colorado. The authors write that Colorado had a robust medical marijuana industry in place well before full legalization, which may have affected youth attitudes and behaviors there before the study period.

Among adolescents, the perceived harmfulness of marijuana has been declining for decades among all age groups. But at the same time, adolescent use of marijuana has been flat or falling. This has led some researchers, including Mark Kleiman of New York University, to rethink the nature of the link between what teens think about weed and whether they use it.

In an email, Kleiman pointed out that in Washington state, the recreational marijuana market didn’t open until halfway through 2014, and then only in limited form. That’s halfway through the “after” period (2013 to 2015) in the JAMA Pediatrics study.

“The effect of the legalization initiatives themselves on price and availability of cannabis really wasn’t felt until after” the study’s surveys were done, Kleiman said. “Any measured effect would be more likely the result of the political campaign around legalization than legalization itself.”

Indeed, the study’s authors agree with that assessment. “Simply legalizing an activity can change people’s views about it and can change their behaviors as well,” said co-author Deborah Hasin of Columbia University in an email.