Monthly Archives: October 2017

Don’t Search My Tent!

Image result for police search tent homeless

In State v. Pippin, the WA Court of Appeals held that a person has a constitutional privacy interest in a tent that is unlawfully erected on public property.

BACKGROUND

Mr. Pippin was a homeless man, living in a tent-like structure on public land in Vancouver. As part of an attempt to notify individuals of a new camping ordinance which prohibits camping on public land without permission, police officers approached Pippin’s tent and requested that he come out. Because Pippin did not come out after an uncertain amount of time and because of noises they heard in the tent, the officers felt they were in danger. One officer lifted a flap of Pippin’s tent to look inside. In the tent, the officers observed a bag of methamphetamine. Pippin was charged with unlawful possession of a controlled substance.

He moved to suppress the evidence derived from the officer basically lifting the flap and looking into the tent, arguing that it was an unconstitutional search under the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Washington Constitution. The Court granted his motion and dismissed  the charge.

The State appealed on arguments that (1) the trial court erred in determining that Pippin had a privacy interest in his tent under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, and (2) if Pippin’s tent is entitled to constitutional privacy protection, the trial court erred in concluding that the officers’ act of opening and looking into the tent was not justified as a protective sweep or through exigent circumstances based on officer safety.

COURT’S ANALYSIS AND CONCLUSIONS

In the published portion of this opinion, the Court of Appeals held that Pippin’s tent and its contents were entitled to constitutional privacy protection under article I, section 7 of the WA Constitution.

The Court reasoned that Article I, section 7 of the WA Constitution mandates that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” It then analyzed different cases under the WA Supreme Court. In short, prior opinions have held that the State unreasonably intruded into a person’s private affairs when it obtained long distance telephone toll records through a pen register, examined the contents of a defendant’s trash placed on the curb for pickup, randomly checked hotel registries to determine who were guests at a hotel, attached a global positioning system tracking device to a defendant’s vehicle, and read through text messages on a cell phone.

The Court’s analysis focused on (1) the historical protections afforded to the privacy interest, (2) the nature of information potentially revealed from the intrusion, and (3) the implications of recognizing or not recognizing the asserted privacy interest.

“Pippin’s tent allowed him one of the most fundamental activities which most individuals enjoy in private—sleeping under the comfort of a roof and enclosure. The tent also gave him a modicum of separation and refuge from the eyes of the world: a shred of space to exercise autonomy over the personal. These artifacts of the personal could be the same as with any of us, whether in physical or electronic form: reading material, personal letters, signs of political or religious belief, photographs, sexual material, and hints of hopes, fears, and desire. These speak to one’s most personal and intimate matters.”

The Court further reasoned that the temporary nature of Pippin’s tent does not undermine any privacy interest, nor does the flimsy and vulnerable nature of an improvised structure leave it less worthy of privacy protections. “For the homeless, those may often be the only refuge for the private in the world as it is,” said the Court.

Under the case law above, Pippin’s tent was the sort of closed-off space that typically shelters the intimate and discrete details of personal life protected by article I, section 7.

The court concluded by saying that all three examined factors—the historical protections, the intimate details revealed from a search, and the implications of recognizing the interest—weigh in favor of finding that Pippin’s tent functioned as part of his private affairs worthy of protection from unreasonable intrusions.

“Accordingly, we hold that Pippin’s tent and its contents fell among those “privacy interests which citizens of this state . . . should be entitled to hold, safe from governmental trespass absent a warrant. As such, Pippin’s tent and contents are protected under article I, section 7 of the Washington Constitution.”

In the unpublished portion of the opinion, the Court held that because the State failed to show that an arrest was taking place, the protective sweep exception does not apply.

My opinion? Excellent decision. The homeless have rights, too. Just because one lives in a tent without a front door to knock on, doesn’t mean that police can intrude on one’s public affairs. There was no “exigent circumstance” or “officer safety issue” justifying the intrusion. Good opinion.

Yoga Behind Bars

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Wonderful report written by Tim Kelly of the WA Department of Corrections (DOC) says that Incarcerated individuals in the DOC’s custody have various programs available in the correctional facilities. A relatively new one is yoga.

Yoga Behind Bars, a Seattle based non-profit organization, visits eight of the department’s twelve facilities. Yoga Behind Bars, which started in 2008, has approximately 40 volunteers that travel to state correctional facilities. Programs like yoga, aid in supporting people’s ability to grow and change, a core value of the agency.

Yoga classes at the Monroe Correctional Complex meet twice a week. Classes at the facilities regularly have 25 to 30 students with some classes even having waiting lists. Yoga is offered to all custody classifications from minimum to maximum custody and there is even a mindfulness program in segregation. To better serve the population, thirteen inmates have become certified yoga instructors.

Excellent. Yoga is an excellent way to manage stress. It’s holistic benefits allow people – and especially inmates – deal with negativity throughout their day in a healthy way. Hopefully, inmates will reap the many benefits of yoga and continue practicing it after they’re released from prison.

Inmate Lawsuits

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In Entler v. Gregoire, the Ninth Circuit Court of Appeals held that a prisoner may not be disciplined for threatening to file civil suit against prison staff. The filing of a criminal complaint against prison officials by a prisoner, as well as the threat to do so, are protected by the First Amendment, provided they are not baseless.

BACKGROUND

John Thomas Entler  is a prisoner at the Washington State Penitentiary (“WSP”). During the summer of 2012, he took issue with certain incidents at the WSP and submitted written complaints to the prison officials involved.

In all but one, Entler threatened to initiate civil litigation if his concerns were not addressed; in the other, he threatened to file a criminal complaint against a number of state officials and have them arrested. Entler was disciplined for these threats under a Washington Department of Corrections (“DOC”) regulation that bars prisoners from
intimidating or coercing prison staff.

Later, Entler brought a complaint pursuant to 42 U.S.C. § 1983 alleging that his First Amendment rights were violated when he was disciplined for threatening to initiate civil litigation and file a criminal complaint against prison officials.

The complaint ended up in federal court.

The Defendants – here, the DOC – moved for judgment on the pleadings under Rule 12(c). Initially, the federal district court summarily adopted Magistrate Judge Hutton’s Report and Recommendation (“R&R”) recommending that Defendants’ 12(c) motion be granted and that the complaint be dismissed with prejudice.

Entler sought reconsideration. In a written decision denying Entler’s motion, the federal district court, disagreeing with the magistrate judge, held that Entler’s informal complaints were not protected by the First Amendment because they “were not part of the grievance process”; but the court agreed that there was a “rational connection” in the “particular context” of the case with the correctional institution’s “legitimate penological interest,” namely the “peaceable operation of the prison through the insistence on respect.” The court also agreed with the R&R that, in any event, “defendants are entitled to qualified immunity.”

This appeal followed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that running a prison is an inordinately difficult undertaking, and that it should give adequate consideration to the judgment of the prison authorities.

“We cannot, however, condone punishing a prisoner for simply threatening to sue if his grievances are not addressed,” said the Court of Appeals. It reasoned that regardless of the prisoner’s misdeeds—however reprehensible—prison walls do not form a barrier separating prison inmates from the protections of the Constitution:

“The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts . . . for without those bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison injustices.”

With that, the Court reasoned that Entler did exactly what he was “expected” to do by the DOC Grievance Program Manual: he sought informal resolution of his concerns through regular administrative channels prior to utilizing the grievance machinery by submitting “kites” to the appropriate prison officials. “This is as it should be,” said the Court. “Entler gave the prison administration the opportunity in the first instance to attempt to resolve his concerns and thus obviate the need to engage in the formal grievance process—with its attendant administrative burdens and costs —and litigation.”

Furthermore, the Court reasoned that it may well be that if the prison officials were able to address Entler’s concerns rather than to punish him for his threats to sue, this litigation might never have come to pass. “It would have been a good thing,” said the Court.

In 2012, the year Entler initiated this suit, prisoners nationwide filed 54,402 of the 267,990 civil cases brought in the district courts.14 In 2016, the most recent year with complete statistics, these filings had increased to 76,417 out of 292,159.15 Thus, over 25% of the district courts’ civil caseload in our country entails prisoner litigation.

The Court of Appeals concluded that Since Entler has alleged cognizable First Amendment
retaliation claims regarding his threats to sue, it was improper to dismiss the complaint in its entirety under Rule 12(c). However, in regard to Entler’s threat to file a criminal complaint, even

My opinion? Good decision. As the Ninth Circuit Court of Appeals said, “The most fundamental of the constitutional protections that prisoners retain are the First Amendment rights to file prison grievances and to pursue civil rights litigation in the courts.” Exactly. Prisons are nowhere fun, and they’re not easy to manage, but an inmate’s Constitutional rights do not totally disappear once they’re incarcerated. Indeed, the only right inmates have left to exercise is the First Amendment. And denying them that one right – the right to express themselves – chills free speech. Pure and simple.

Female Attorneys Interrupted More Than Males

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Informative article by reporter Tom Jacobs of the Pacific Standard claims that female attorneys arguing before the United States Supreme Court  are treated differently than their male counterparts.

Jacobs reported that in a recently published study, University of Alabama scholars Dana Pattonand Joseph Smith analyzed the transcripts of 3,583 oral arguments presented to the court over more than three decades. They found “female lawyers are interrupted earlier and more often, allowed to speak for less time between interruptions, and subjected to more and longer speeches by the justices compared to male lawyers.”

Their study, published in the Journal of Law and Courts, provides evidence that deep-seated gender bias infects even a top-level government institution that is rigorously committed to equal treatment.

Jacobs reports that the researchers analyzed written transcripts of all Supreme Court oral arguments from 1979 through the end of the 2013 term. It found 10.9 percent of the attorneys making these (usually 30-minute) presentations were women—a figure that increased to 14.2 percent after the 2000 term.

“Men were allowed an average of 225 words before the first interruption (by a justice), compared to 192 words for women,” they report. “Male lawyers spoke an average of about 95 words between interruptions, compared to 83 words for female lawyers.”

“Justices’ interruptions are both longer and more frequent during presentations by female lawyers,” the researchers add. “Justices interrupted women an average of 51.3 times, compared to 49.2 times for men.”

“Could this be explained by the fact that female lawyers represent different kinds of clients?” asked Jacobs. To control for that possibility, Jacobs said that the researchers compared the experiences of men and women lawyers representing the U.S. Office of the Solicitor General.

They found that, compared to their male counterparts, women representing the solicitor general’s office “are allowed fewer words at the beginnings of and during their presentations, and they endure longer and more frequent interruptions.”

OK, but is it possible that women are more likely to represent underdogs—perhaps ones with weaker cases that are more prone to challenge? Perhaps, but the researchers found it doesn’t matter.

“Female lawyers do not enjoy the well-documented positive effect of being on the winning side of a case,” they write. “While male lawyers are treated substantially more deferentially when they represent the winning side of a case, female lawyers enjoy no such benefit.”

Jacobs reported, somewhat surprisingly, “the increasing number of female justices on the court does not seem to have mitigated the disparate treatment of female lawyers,” the researchers add. The only element that tempers this tendency is “when the legal dispute concerns a gender-related issue.” In such cases, they found female attorneys are not disadvantaged, presumably because issues of sex and bias are front and center in the justices’ minds.

Jacobs points out that the researchers argue that their findings have implications that go far beyond the Supreme Court. If women professionals are treated unfairly “in a place one would least likely to expect it,” they write, “men likely receive more deferential treatment from bosses and coworkers in all manner of workplaces compared to their female counterparts.”

My opinion? It’s a terrible injustice to the legal system if these findings are correct and no reasonable explanation exists otherwise. Perhaps the findings show a larger disturbing trend. According to U.S. Census Bureau data, in 2014 the median pay for full-time female lawyers was 77.4 percent of the pay earned by their male counterparts. Also, in all law-related jobs, median pay for female workers in 2014 was 51.6 percent of the pay received by male workers.

As Jacobs states toward the end of his article, “Perhaps professional women are at an inherent disadvantage, no matter if the authority figure they answer to is wearing an expensive suit, or a judicial robe.”

The Eyes Never Lie

Image result for The eyes expose our lies. Now AI is noticing.

Interesting article by reporter Matt McFarland of CNN describes new artificial intelligence (AI) which detects deception by tracking dilations in the pupils in our eyes.

A Utah-based company called Converus has developed technology called EyeDetect. It’s gaining popularity as a more affordable, less biased version of a polygraph exam, which has long been the gold standard for detecting lies.

EyeDetect relies on an algorithm that weighs a variety of factors. The key indicators are if a person’s eyes dilates while reading a question, and how fast they read questions. Our pupils dilate when we’re deceptive because lying takes more mental energy. The eyes allow in more light and information to help our brains with their added workload. This evolved as a survival instinct, according to David Raskin, a retired University of Utah professor, who worked on the team that developed the science behind EyeDetect.

According to McFarland, EyeDetect, which launched in 2014, is used today in 34 countries as part of job interviews and corporate investigations. Latin American banks, for example, use the technology to determine if their tellers can be trusted. Research has shown the accuracy rates of EyeDetect and polygraph are similar, both nearing 90%.

A person taking an EyeDetect exam sits at a desk and answers true-or-false questions on a tablet. An infrared camera tracks eye movement, blinking and pupil dilation. After 30 minutes, an algorithm scores their deceptiveness on a scale from zero to 100.

According to McFarland, some local U.S. law enforcement departments and private investigators have started using EyeDetect.

“The eyes are the window of the soul,” said Juan Becerra, an investigator at Panther Security and Investigations. He used to work with polygraphs at the FBI and now uses EyeDetect. “This is something that’s revolutionary and that’s going to change the entire deception detection field.”

Converus and the Utah scientists say the U.S. federal government has been slow to embrace the technology. The U.S. House of Representatives passed a bill this summer lifting the polygraph requirement for U.S. Customs and Border Patrol applicants to address staffing shortages. Advocates for the bill have said flaws in polygraphs have made it more difficult to fill open positions.

Apparently, a deceptive person will generally take longer to answer questions on a test, as they’re being careful. But on the specific questions they’re lying on, they will respond faster.

Raskin and the other Utah professors — a group of leading polygraph researchers who gravitated toward optical tests for deception — said there are several advantages to sensing lies through the human eyes. Polygraph exam results can be biased because humans administer and score the tests. EyeDetect removes the human element.

Ken Roberts, a deputy sheriff in the Dona Ana County Sheriff Department in Las Cruces, New Mexico, has switched from administering polygraphs to EyeDetect exams for pre-employment screenings. Roberts still sees some uses for polygraphs, such as interviewing a suspect in a homicide case, when tailored follow-up questions are necessary.

My opinion? Although interesting, this new technology could be viewed as a more technologically advanced version of junk science.

The general rule in Washington is that polygraph testimony is inadmissible unless it is agreed by both parties. This is because the accuracy (i.e., validity) of polygraph testing has long been controversial. An underlying problem is theoretical: there is no evidence that any pattern of physiological reactions is unique to deception. An honest person may be nervous when answering truthfully and a dishonest person may be non-anxious.

However, even if the test isn’t used in court, it can still be used by police during questioning. If that happens to you, make sure to have an experienced criminal lawyer present to make sure there’s no funny business such as leading questions and/or unscrupulous interrogation tactics.

‘Sanctuary’ Cities Targeted by ICE in Immigration Raids

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Erik Ortiz reported that a federal operation to arrest undocumented immigrants netted nearly 500 people in cities and states that have openly opposed the Trump administration’s deportation initiatives.

According to Ortiz, Immigration and Customs Enforcement (ICE) officials said last Thursday that its four-day “Operation Safe City” targeted people in residing in the so-called “Sanctuary Cities” of New York, Los Angeles, Philadelphia, Denver, Washington and Baltimore as well as Cook County, Illinois; Santa Clara County in California’s Bay Area; Portland, Oregon; and Massachusetts.

Officials in those places — some referring to themselves as “sanctuary  communities” — have been vocal about not fully cooperating with federal immigration authorities, at times clashing with state leaders who support President Donald Trump’s agenda. Sanctuary communities have passed ordinances limiting compliance with federal immigration laws and seek to shield undocumented immigrants who may be deported simply over their immigration statuses or low-level criminal offenses.

“Sanctuary jurisdictions that do not honor detainers or allow us access to jails and prisons are shielding criminal aliens from immigration enforcement and creating a magnet for illegal immigration,” Tom Homan, ICE’s acting director, said in a statement. “As a result, ICE is forced to dedicate more resources to conduct at-large arrests in these communities.”

It is not unusual for ICE to round up immigrants by the hundreds or even low thousands, although the latest raid comes on the heels of a planned operation that would have targeted about 8,400 undocumented immigrants this month.

But the Department of Homeland Security scrapped the operation after the agency said it was halting nationwide enforcement actions in the wake of hurricanes Irma and Harvey. This latest effort indicates the administration is ready to renew its efforts.

“ICE’s goal is to build cooperative, respectful relationships with our law enforcement partners to help prevent dangerous criminal aliens from being released back onto the streets,” Homan said.

According to ICE, of the 498 people arrested this week, 317 had criminal convictions. Some were also categorized as “immigration fugitives,” “previously deported criminal aliens,” and/or associated with a gang.

Most of the criminal convictions were for driving under the influence as well as assault- and drug-related offenses, ICE said. Others were arrested for marijuana possession, traffic offenses and even charges of being a “peeping tom.”

City officials declared Portland a sanctuary city in March, and its mayor, Ted Wheeler, has criticized the Trump administration’s push to end the Obama-era program that has allowed undocumented immigrants who came to the United States as children to remain in the country.

The administration, meanwhile, has faced setbacks as it seeks to overhaul immigration — an issue that has failed repeatedly to gain traction in Congress. Weeks ago, a U.S. district judge in northern Illinois gave sanctuary cities a temporary victory, saying the Justice Department can’t withhold public safety grants to Chicago because officials there don’t want to impose certain immigration policies.

My opinion? As a criminal defense attorney, my role is to protect people’s Constitutional Rights under the Fourth Amendment. Therefore, I have a natural inclination to prevent warrantless, unlawful searches and seizures.

That said, I understand if the government declares a state of emergency holding that exigent circumstances warrants the immediate seizure and deportation of undocumented immigrants.

However, there’s lots of controversy surrounding the subject of ICE raids on Sanctuary Cities. Some civil rights advocates say the raids fit with the Trump administration’s pattern of scapegoating, criminalizing, and demonizing immigrants. Also, courts have said that holding someone without a warrant could violate their constitutional rights, putting jailers at risk of lawsuits. Finally, others have accused Trump’s attack on sanctuary cities as a malignant executive power grab that subverts the Spending Clause and tramples the 10th Amendment.

Let’s see what happens . . .



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

Phone: (360) 746-2642
Fax: (360) 746-2949

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