Monthly Archives: March 2018

Drug Offender Recidivism

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A recent Pew Study suggests that imprisoning drug offenders for longer prison sentences does not reduce drug problems in any given state. In other words, there is no statistical data showing a relationship between prison terms and drug misuse.

To test this, Pew compared state drug imprisonment rates with three important measures of drug problems— self-reported drug use (excluding marijuana), drug arrest, and overdose death—and found no statistically significant relationship between drug imprisonment and these indicators. In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.

The study found that nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980. These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

The study said that as the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems. To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings—which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017—reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations. The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

“Although no amount of policy analysis can resolve disagreements about how much punishment drug offenses deserve, research does make clear that some strategies for reducing drug use and crime are more effective than others and that imprisonment ranks near the bottom of that list. And surveys have found strong public support for changing how states and the federal government respond to drug crimes.”

“Putting more drug-law violators behind bars for longer periods of time has generated enormous costs for taxpayers, but it has not yielded a convincing public safety return on those investments,” concluded the study. “Instead, more imprisonment for drug offenders has meant limited funds are siphoned away from programs, practices, and policies that have been proved to reduce drug use and crime.”

My opinion? Public safety should be the number one reason we incarcerate. However, penalties should be the most effective, proportional, and cost-efficient sanction to achieve that goal. This would create more uniform sentences and reduce disparities, while preserving judicial discretion when necessary.

Please contact my office if you, a friend or family member face drug charges. If convicted, your loved ones risk facing an unnecessary amount of incarceration. Only a competent and experienced criminal defense attorney can reduce of criminal charges and/or facilitate the implementation of sentencing alternatives which reduce the amount of prison time an offender faces.

Increase of Uninsured Drivers in WA State

Informative article by Rolf Boone of The Olympian discusses how the number of uninsured motorists in Washington state increased to 17.4 percent between 2012 and 2015, according to the Northwest Insurance Council, which cited a report by the Insurance Research Council.

Washington state is now seventh highest in the country for uninsured drivers.

“It is concerning that in our region’s thriving economy, with more vehicles than ever on our roadways, that a growing percentage of drivers are uninsured, breaking the law and imposing higher costs on insured drivers,” said Kenton Brine, Northwest Insurance Council President in a statement.

The five states with the highest number of uninsured motorists:

-Florida, 26.7 percent.

-Mississippi, 23.7 percent.

-New Mexico, 20.8 percent.

-Michigan, 20.3 percent.

-Tennessee, 20 percent.

Under RCW 46.30.020, it is a civil infraction to drive without insurance. The legislative intent of this law says, “It is a privilege granted by the state to operate a motor vehicle upon the highways of this state. The legislature recognizes the threat that uninsured drivers are to the people of the state.”

Driving without insurance can be potentially damaging. Along with facing civil penalties, police officers may find some excuse to search your vehicle and/or investigate you for DUI, Driving While License Suspended, etc. Please contact my office if you, a friend or family member face these or any other charges relating to driving. You may need competent defense counsel to get these charges reduced or dismissed.

Probable Cause & Parties

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In District of Colombia v. Wesby, the United States Supreme Court decided that police officers had probable cause to arrest partygoers at a home when the totality of the circumstances make it clearly obvious that criminal activity was happening.

BACKGROUND

District of Columbia police officers responded to a complaint about loud music and illegal activities in a vacant house. Inside, they found the house nearly barren and in disarray. The officers smelled marijuana and observed beer bottles and cups of liquor on the floor, which was dirty. They found a make-shift strip club in the living room.  Several women were wearing only bras and thongs, with cash tucked into their garter belts. The women were giving lap dances while other partygoers watched. Most of the onlookers were holding cash and cups of alcohol.

The officers found more debauchery upstairs. A naked woman and several men were in the bedroom. A bare mattress—the only one in the house—was on the floor, along with some lit candles and multiple open condom wrappers. A used condom was on the windowsill. The officers found one partygoer hiding in an upstairs closet, and another who had shut himself in the bathroom and refused to come out.

Many partygoers scattered when they saw the uniformed officers, and some hid. The officers questioned everyone and got inconsistent stories. Two women identified “Peaches” as the house’s tenant and said that she had given the partygoers permission to have the party. But Peaches was not there. When the officers spoke by phone to Peaches, she was nervous, agitated, and evasive. At first, she claimed that she was renting the house and had given the partygoers permission to have the party, but she eventually admitted that she did not have permission to use the house. The owner confirmed that he had not given anyone permission to be there.

At that point, the officers arrested the 21 partygoers for Unlawful Entry. The police transported the partygoers to the police station, where the lieutenant decided to charge them with Disorderly Conduct. The partygoers were released, and the charges were eventually dropped.

Several partygoers sued for False Arrest under the Fourth Amendment. The Federal District Court concluded that the officers lacked probable cause to arrest the partygoers for unlawful entry and that two of the officers, petitioners here, were not entitled to qualified immunity. A divided panel of the D. C. Circuit Court of Appeals affirmed. Eventually, this case went to the U.S. Supreme court.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Officers Had Probable Cause to Arrest.

The U.S. Supreme Court held that police officers had probable cause to arrest the partygoers. The Court reasoned that considering the “totality of the circumstances” under Maryland v. Pringle, the officers made an “entirely reasonable inference” that the partygoers knew they did not have permission to be in the house.

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several common-sense conclusions about human behavior. Because most homeowners do not live in such conditions or permit such activities in their homes, the officers could infer that the partygoers knew the party was not authorized. Furthermore, the Court reasoned that officers also could infer that the partygoers knew that they were not supposed to be in the house because they scattered and hid when the officers arrived. Also, the partygoers’ vague and implausible answers to questioning also gave the officers reason to infer that the partygoers were lying and that their lies suggested a guilty mind. Finally, Peaches’ lying and evasive behavior gave the officers reason to discredit everything she said.

2. The Lower Court Failed to Conduct the Correct Analysis.

The Supreme Court explained that the lower court failed to follow two basic and well-established principles of law. First, it viewed each fact in isolation, rather than as a factor in the totality of the circumstances. Second, it believed that it could dismiss outright any circumstances that were susceptible of innocent explanation. Instead, it should have asked whether a reasonable officer could conclude—considering all of the surrounding circumstances, including the plausibility of the explanation itself—that there was a substantial chance of criminal activity.

   3. The Officers Were Entitled to Qualified Immunity.

For those who don’t know, Qualified Immunity protects a government official from lawsuits alleging that the official violated a plaintiff‘s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

The Court ruled that here, officers are entitled to qualified immunity under 42 U. S. C. §1983 unless the unlawfulness of their conduct was clearly established at the time. To be clearly established, a legal principle must be “settled law,” and it must clearly prohibit the officer’s conduct in the particular circumstances before him. In the warrantless arrest context, “a body of relevant case law” is usually necessary to “ ‘clearly establish’ the answer” with respect to probable cause. Brosseau v. Haugen.

With that, the U.S. Supreme Court reversed and remanded the lower court’s decision.

Contact my office of you, a friend or family member’s house party was interrupted by police who conducted arrests. Competent defense counsel can ascertain whether constitutional rights were violated in the search and seizure of persons and property.

Excessive Force?

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In Thompson v. Copeland, the Ninth Circuit Court of Appeals held that a police officer uses excessive force when he points a gun at a suspect’s head and threatens to kill the suspect after the suspect, who was arrested for a felony, has already been searched, is calm and compliant, and is being watched over by a second armed deputy.

BACKGROUND FACTS

In December, 2011, Pete Copeland, a deputy in the King County Sheriff’s Office (“KCSO”), was on patrol in the City of Burien, Washington. After watching Lawrence Thompson commit “multiple traffic violations,” Copeland pulled him over. Thompson apologized to Copeland but failed to provide a driver’s license, although he did offer up some mail addressed in his name.

When Copeland ran Thompson’s identifying information, he discovered that Thompson had a suspended license for an unpaid ticket, that Thompson was a convicted felon, and that his most recent felony conviction was for possessing a firearm. Copeland decided to arrest Thompson for driving with a suspended license, and to impound Thompson’s car, as required by a City of Burien ordinance.

Copeland had Thompson exit the vehicle and patted him down for weapons. Finding none, Copeland radioed for backup, and had Thompson sit on the bumper of Copeland’s patrol car. Copeland then conducted an inventory search of Thompson’s vehicle. During his search, Copeland saw a loaded revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the gun, Copeland decided to arrest Thompson for Unlawful Possession of a Firearm.

Thompson continued to sit on the bumper of Copeland’s police cruiser, watched over by another deputy who had arrived for backup on the scene. Thompson was about 10–15 feet from the gun in the backseat of his car, and was not handcuffed. Copeland signaled to the deputy watching over Thompson, then drew his gun.

What happened next is disputed by the parties. Copeland claims he unholstered his firearm and assumed a low-ready position, with his gun clearly displayed but not pointed directly at Thompson. By contrast, Thompson claims that Copeland pointed his gun at Thompson’s head, demanded Thompson surrender, and threatened to kill him if he did not.

Copeland directed Thompson to get on the ground, facedown, so that he could be handcuffed. Thompson complied and was cuffed without incident. Copeland arrested Thompson for being a felon in possession of a firearm. The State of Washington charged Thompson with Unlawful Possession of a Firearm. However, the charges were dismissed after determining that the evidence against Thompson had been gathered in violation of the Washington State Constitution.

Thompson sued Officer Copeland and King County under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights. Specifically, Thompson alleged that Officer Copeland used excessive force in pointing his gun at Thompson and threatening to kill him.

In recommending dismissal of this claim, the federal Magistrate Judge  found that the degree of force used on Thompson was reasonable given that Officer Copeland was conducting a felony arrest of a suspect who was not secured, who was in relatively close proximity to a weapon, who was taller and heavier than him, and who had a prior felony conviction for unlawfully possessing a firearm. The Magistrate Judge concluded that Officer Copeland’s minimal use-of-force in effectuating Thompson’s arrest was objectively reasonable, and did not violate Thompson’s Fourth Amendment rights.

The Magistrate Judge also granted Copeland’s motion to dismiss under summary judgment on the basis of qualified immunity. Later, The federal district court adopted the Magistrate Judge’s Report and Recommendation, and dismissed Thompson’s claims with prejudice. Thompson appealed.

ISSUE

In the course of a felony arrest, may a police officer point a loaded gun at an unarmed suspect’s head, where that suspect had already been searched, was calm and compliant, was watched over by a second armed deputy, and was seated on the bumper of a police cruiser 10–15 feet away from a gun found in the suspect’s car? And if not, was the police officer entitled to qualified immunity from future lawsuits for police misconduct?

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that pointing a loaded gun at the suspect’s head in these circumstances constitutes excessive force under the Fourth Amendment, but that the officers here are entitled to qualified immunity because the law was not clearly established at the time of the traffic stop.

“Our analysis involves two distinct steps,” said the Court of Appeals. “Police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the officers’ conduct violated a constitutional right, and (2) the right was clearly established at the time of the alleged violation.”

  1. Violation of a Constitutional Right.

The Court reasoned that Officer Copeland’s use of force in arresting Thompson was not objectively reasonable. Officer Copeland pointed the gun at Thompson’s head and threatened to kill him if he did not surrender. This type and amount of force can hardly be characterized as minor, reasoned the Court. Furthermore, Thompson had no weapon and had already been searched. He was sitting on the bumper of a squad car, watched over by an armed deputy. He was not actively resisting arrest or attempting to evade arrest by
flight.

“Reviewing the totality of the circumstances, the force used against Thompson was excessive when balanced against the government’s need for such force. In the end, pointing guns at persons who are compliant and present no danger is a constitutional violation.”

         2. No Clearly Established Right.

Here, the Court reasoned that although the use of excessive force violated Thompson’s constitutional rights, Officer Copeland is entitled to qualified immunity because Thompson’s right not to have a gun pointed at him under the circumstances here was not clearly established at the time the events took place.

“Looking to the particular setup here, we cannot say that every reasonable officer in Copeland’s position would have known that he was violating the constitution by pointing a gun at Thompson,” said the Court of Appeals. “Thompson’s nighttime, felony arrest arising from an automobile stop, in which a gun was found, coupled with a fluid, dangerous situation, distinguishes this case from our earlier precedent.”

The Court reasoned that, more specifically, Copeland was conducting a felony arrest at night of a suspect who was not handcuffed, stood six feet tall and weighed two hundred and sixty-five pounds, was taller and heavier than Copeland, and had a prior felony conviction for unlawfully possessing a firearm. “Although Thompson was cooperative, the situation was still critical in terms of potential danger to the officers, especially given that a loaded gun was only 10–15 feet away,” said the Court. “Copeland did not violate a “clearly established” right as that concept has been elucidated by the Supreme Court in the excessive force context.”

The Court of Appeals concluded that because the law was not clearly established within the parameters dictated by the Supreme Court, Officer Copeland was entitled to qualified immunity. Therefore, the lower district court’s grant of summary judgment was AFFIRMED.

   3. Dissenting Opinion.

My opinion? Respectfully, I disagree with the Court of Appeals’ majority decision and agree with Justice Christen’s dissenting opinion.

“This decision squarely conflicts with the clear directive our court issued in Robinson v. Solano County, a case involving facts that, if distinguishable at all, posed a greater threat to officer safety,” said Justice Christen. Ultimately, she reasoned that Robinson recognized the critical distinction between pointing a gun at someone’s head and holding it in the “low ready” position.

“Deputy Copeland was justified in displaying some degree of force, but accepting the allegations in the complaint as true, he unquestionably used excessive force when he aimed his gun at Thompson’s head and threatened that if Thompson moved, he’d be dead.,” said Justice Christen. “Because that rule was clearly established long before Thompson was arrested, I respectfully dissent.”

Please contact my office if you, a friend or family member believe police used excessive force in any given situation. Police officers have difficult tasks. In recent years, however, the use of force by police officers making traffic stops has flared into a national debate of renewed importance. It’s imperative to seek legal counsel with knowledge and competence in this debate, and who may recover damages from the police officer’s liability.

Unlawful Imprisonment Evidence

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In  State v. Scanlan, the WA Court of Appeals upheld the defendant’s conviction for Unlawful Imprisonment because there was evidence that  the victim told his doctor that he had been imprisoned in his home for two days against his will by the Defendant.

BACKGROUND

In 2013, Bagnell, an 82-year-old widower, was living independently in the Federal Way home that he had shared with his wife of more than 50 years. Sometime in 2013, Bagnell met Scanlan, a woman 30 years his junior. They quickly became friends and about two months later, Scanlan moved in with Bagnell.

On October 16, 2014, the Federal Way Police Department responded to Bagnell’s home after receiving a 911 hang-up call. The officers found Bagnell and Scanlan inside the home. Scanlan was uninjured, but Bagnell, who was dressed in a t-shirt and underwear, had wounds on his head, arms, and legs. After questioning Scanlan, the officers arrested her. As a result of the incident, a court order was issued prohibiting Scanlan from contacting Bagnell.

A few weeks later, on November 6, 2014, Bagnell’s adult children grew concerned after Bagnell missed a scheduled meeting with them. After trying and failing to reach him on his cell phone and home phone, Bagnell’s children went to Bagnell’s house to check on him.

When Bagnell’s children arrived at his house, they found it dark. Its blinds were
drawn and all of the interior and exterior lights were out. The children thought this was
odd and moved up to the front porch to try to see inside. From the porch they could see the glow of the television and shadowy movements. They rang the doorbell and
knocked but received no answer. Bagnell’s children were alarmed and opened the door
with an emergency key.

Inside, they found Bagnell’s home in disarray. Trails of blood ran across the carpet and up the stairs, gouges marked the walls, and broken household items and debris lay on the floor. A golf club leaned against a wall, and a hammer lay on a coffee table. A crowbar was on the dining room table, and a broken broom handle stood in a garbage bucket in the middle of the family room’s floor. Bagnell sat alone in a chair in the family room, dazed, bleeding from several wounds, and severely bruised such that “His face was black.” Bagnell at first appeared to be unconscious, but he began to respond to their attempts to rouse him as they called 911.

Roughly 15 minutes later, Federal Way Police Officer Brian Bassage arrived at Bagnell’s home. Just as Officer Bassage arrived, Scanlan was found hiding under a blanket in the front seat of a car in the garage. As Officer Bassage removed her from the car, Bagnell’s daughter yelled out at her that she had “just beat her father half to death, that there was blood everywhere.” Scanlan shouted back, “It’s not that bad.” At the police station, Scanlan claimed to be injured. The police took pictures, but did not detect any significant injuries. Scanlan did not receive medical treatment.

Bagnell was transported to the hospital where he was treated in the emergency room for his injuries which included: extensive bruising all over his body, four large open wounds on his legs, wounds on his arms, and fractures on both hands. Bagnell was treated in the emergency room by emergency room Nurse Catherine Gay and Dr. Robert Britt. Bagnell also met with social worker Jemina Skjonsby.

After treatment, but prior to his release, Bagnell met with Federal Way Police Department Detective Adrienne Purcella from about midnight to 1:00 a.m. Bagnell signed a form medical records waiver at 12:55 a.m.

Bagnell did not testify at trial. However, the trial court admitted statements that Bagnell made to medical providers in the emergency room, as well as subsequent statements made to his primary care physician and wound care medical team.

In November 2015, the State charged Scanlan with assault in the second degree (count 1), felony violation of a court order (count 2), unlawful imprisonment (count 3), and assault in the fourth degree (count 4). All counts contained a domestic violence allegation. The jury found Scanlan guilty of assault in the second degree, felony violation of a court order, and unlawful imprisonment.

Scanlon appealed her convictions She contends that, among other issues, there was insufficient evidence to support the charge of unlawful imprisonment.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals held there is sufficient evidence of unlawful imprisonment.

The Court reasoned that when reviewing a claim for the sufficiency of the evidence, it considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Furthermore, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom. Finally, circumstantial evidence is as reliable as direct evidence. However, inferences based on circumstantial evidence must be reasonable and cannot be based on speculation.

In this case, the State charged Scanlan with unlawful imprisonment under RCW 9A.40.040 which states: “A person is guilty of unlawful imprisonment if he or she knowingly restrains another person.” To prove restraint, the State had to prove that Scanlan restricted Bagnell’s movements (a) without consent and (b) without legal authority, in a manner which interfered substantially with his liberty. Restraint is without consent if it is accomplished by physical force, intimidation, or deception.

The Court reasoned that first, Bagnell told his physician Dr. Britt that he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will. Also the physician’s assistant testified that Bagnell told her that Scanlan locked him in a room: “He was living with a girlfriend at the time who had locked him in a room and had beat him with a candlestick, a broom and a hammer over multiple areas,” said the physician’s assistant, who also testified at trial.

Second, circumstantial evidence supports the inference that Scanlan used force or the threat of force to restrain Bagnell. Bagnell’s children found the front door locked, their father in a stupor, the house in disarray, and a broken broom, hammer, golf club, and crowbar. Bagnell’s children were also unable to contact their father by phone. Additionally, Bagnell’s cell phone was found broken, a battery was found to have been removed from a cordless phone in the home, and another phone was found to have no dial tone.

“Viewed in the light most favorable to the State, this is sufficient evidence of unlawful imprisonment.”

With that, the Court of Appeals affirmed Scanlan’s conviction for unlawful imprisonment.

Common Authority to Search

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In State v. Vanhollebeke, the WA Supreme Court held that a driver’s refusal to consent to the search of his or her vehicle must generally be respected. But where the facts reasonably raise a significant question about whether the driver had any legitimate claim to the vehicle at all, the police may contact the absent owner and then get that owner’s consent to search instead.

BACKGROUND FACTS

Defendant Justin Vanhollebeke drove his truck the wrong way down a one-way street. Not surprisingly, an officer stopped him. Vanhollebeke ignored the officer’s command to stay in the vehicle, got out and locked the vehicle behind him, left a punched out ignition and apparent drug paraphernalia behind in plain view of the police, and had no key. The police asked Vanhollebeke for consent to search the vehicle. Vanhollebeke refused. A police officer then contacted the truck’s owner, received the absent owner’s consent and a key to search, and then returned to search the vehicle.

Vanhollebeke was charged with unlawful possession of a firearm found in the truck.

Vanhollebeke moved to suppress the fruits of the search, arguing that the warrantless search was unconstitutional. The trial court denied the motion, reasoning that there’s a reduced expectation of privacy in a borrowed vehicle. The trial court made no explicit findings of fact regarding the officers’ motivation for contacting Mr. Casteel. Vanhollebeke was found guilty, sentenced to 34 months confinement, and assessed fees of $1,380. He appealed on the issue of whether the search was constitutional.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reasoned that warrantless searches are presumptively unconstitutional, unless they fit within one of the few, narrow exceptions to the warrant requirement. Under both the Washington and United States Constitutions, warrantless searches are per se unreasonable. However, there are a few jealously and carefully drawn exceptions to the warrant requirement.

“One of those exceptions is for consent, and consent is the exception at issue here,” said the Court. It elaborated that consent to a search establishes the validity of that search if the person giving consent has the authority to so consent. Furthermore, the Court reasoned that while the driver of an absent owner’s vehicle does not ordinarily assume the risk that the absent owner will consent to a search, the driver does assume that risk where the facts reasonably suggest it is stolen.

Next, the Court adopted and applied the Fourth Amendment standard for valid third-party consent to a search is a two-part test: (1) Did the consenting party have authority to permit the search in his own right? And if so, (2) did the defendant assume the risk that the third party would permit a search? Both this Court and the United States Supreme Court refer to this test as the “common authority rule.” In short, the common authority rule refers to a legal principle that permits a person to give consent to a law officer for the purpose of searching another person’s property. The common-authority rule provides for searches without warrant. The principle can be applied only when both parties have access or control to the same property.

The Consenting Party Had Authority to Permit the Search.

The WA Supreme Court held that here, the consenting party, the owner, clearly had the authority to consent to the search in his own right. “There is no dispute that the first part of the test is satisfied in this case as the truck’s owner, Casteel, could clearly consent to its search in his own right,” said the Court. “The driver of a car owned by another does not ordinarily assume the risk that the owner will consent to a search.”

Vanhollebeke, by Borrowing Casteel’s truck, Assumed the Risk that Casteel Might Allow Others to Search It.

The Court held that the evidence in this case gave the officers good reasons to believe the vehicle was stolen. This driver, without a key or identification and with a punched out ignition clearly visible, therefore assumed the risk that the police would contact the absent owner and seek consent to search.

The Court elaborated that this reasoning is consistent with the reasoning in the United States Supreme Court’s “common authority” cases that legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

“The search in this case did not violate the Fourth Amendment,” concluded the Court.

Drive-By Shooting Conviction Reversed

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In State v. Vasquez, the WA Court of Appeals held that the drive-by sentence aggravator is not met where a perpetrator ran 63 feet from his vehicle and around the corner of a grocery store prior to shooting and killing the victim.

BACKGROUND FACTS

Mr. Vasquez shot and killed Mr. Garcia as Mr. Garcia was seated in the front passenger side of a GMC Envoy parked at the Airport Grocery in Moses Lake, Washington. Mr. Garcia’s girlfriend was in the front driver’s seat and her five-year-old child was in the back seat, behind Mr. Garcia. Neither Mr. Garcia’s girlfriend nor her child were physically injured during the shooting.

At the crux of this case is the route Mr. Vasquez took to shoot Mr. Garcia.

For several minutes prior to the shooting, the Envoy was parked near the Airport Grocery’s front entrance. Mr. Vasquez then arrived at the scene in a Toyota pickup. The Toyota was parked on the side of the grocery, next to a fenced utility area, approximately 63 feet away from the Envoy.

Once the Toyota was parked, Mr. Vasquez ran from the pickup and hid behind the utility fence for nearly a minute. Mr. Vasquez then rushed around the corner of the grocery, across the front-side of the Envoy, and over to the area of the front passenger window of the Envoy. The front window was partially rolled down, exposing Mr. Garcia to Mr. Vasquez.

Mr. Vasquez shot and killed Mr. Garcia from point-blank range. Mr. Vasquez then retreated to the Toyota and it sped away. The entire shooting was captured on video by the grocery’s surveillance system. Approximately one minute and 16 seconds elapsed between the Toyota’s initial arrival and ultimate departure.

A jury convicted Mr. Vasquez of first degree murder with a drive-by shooting aggravator, along with several counts of drive-by shooting. Mr. Vasquez was sentenced to life imprisonment without parole for the aggravated first degree murder conviction. He also received a 60-month firearm enhancement. Mr. Vasquez appealed on arguments that the evidence was insufficient to prove a drive-by shooting.

COURT’S ANALYSIS & CONCLUSIONS

Washington’s drive-by shooting statute states, in pertinent part:

A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in RCW 9.41.010 in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.

The legal question was whether the State’s evidence showed Mr. Vasquez was in the “immediate area” of the Toyota pickup truck at the time of the shooting. Viewing the evidence in the light most favorable to the State, the Court of Appeals held the “immediate area” requirement was not met.

The Court of Appeals explained that a drive-by shooting is commonly understood to involve shots fired from inside a vehicle, or from “within a few feet or yards” of the vehicle. In other words, the crime contemplates a shooter who is either inside a vehicle or within easy reach of the vehicle.

“Mr. Vasquez’s offense did not fall within either circumstance,” reasoned the Court of Appeals. It further reasoned that Mr. Vasquez was far from reach of the Toyota at the time he shot Mr. Garcia. “In fact, Mr. Vasquez had to traverse several intervening obstacles in order to get a clear shot at his victim,” said the Court. “Although Mr. Vasquez was in the immediate area of Mr. Garcia’s Envoy at the time of the shooting, he was not in the immediate area of the Toyota that had transported him to the scene. Mr. Vasquez’s offense therefore does not qualify as a drive-by shooting.”

The Court concluded that because Mr. Vasquez was neither inside the Toyota nor within immediate reach of the Toyota at the time of the shooting, the State failed to present sufficient evidence justifying Mr. Vasquez’s convictions for drive-by shooting as well as the drive-by shooting aggravator to Mr. Vasquez’s first degree murder conviction.

Consequently, the Court reversed Vasquez’s drive-by shooting convictions and aggravator.

My opinion? The circumstances of this case are certainly tragic. However, it’s not uncommon for Prosecutors to charge people for crimes which don’t fit the facts and circumstances. That’s why it’s extremely important to hire a qualified and competent defense attorney who knows and understands the law. Defense counsel must question the evidence and, when necessary, argue pretrial motions to dismiss charges where evidence is lacking. Please contact my office if you, a family member or friend faces serious criminal charges similar to those in this case.

Forced & Warrantless Entry

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In Bonivert v. City of Clarkston, the Ninth Circuit Court of Appeals held that police officers responding to a “physical domestic” call violated the Fourth Amendment by entering the locked house without a warrant after the suspect, who was the lone occupant of the home by the time the police arrived, refused repeated requests to come to the door. Under the facts of the case, the forced entry could not be upheld under consent, emergency doctrine or exigent circumstances.

BACKGROUND FACTS

This case starts with a domestic dispute call to the police from the home of Ryan Bonivert. During an evening gathering with friends, Bonivert reportedly argued with his girlfriend, Jessie Ausman, when she attempted to leave with the couple’s nine-month old daughter. By the time police arrived, the disturbance was over: Ausman, the baby, and the guests had safely departed the home, leaving Bonivert alone inside. At that point, there was no indication that Bonivert had a weapon or posed a danger to himself or others. Nor does the record suggest that Ausman intended to reenter the house or otherwise asked police to accompany her inside. When Bonivert failed to respond to repeated requests to come to the door, the officers decided they needed to enter the house. No attempt was made to obtain a search warrant.

Though Bonivert locked the door to his house and refused police entreaties to talk with them, the police broke a window to unlock and partially enter the back door. Even then, Bonivert tried to shut the door, albeit unsuccessfully. Although Ausman consented to the officers entering the house, Bonivert’s actions were express—stay out.

Nevertheless, the officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, handcuffed him, and arrested him. Bonivert was arrested for assaulting an officer, resisting arrest, and domestic violence assault in the fourth degree.

Bonivert brought civil rights claims under 42 U.S.C. § 1983 against the City, the County, Combs, Purcell, Gary Synder, and Joseph Synder, alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The district court granted summary judgment in favor of the defendants on the basis of qualified immunity.

For those who don’t know, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights. It only allows suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Ninth Circuit concluded that the warrantless entry into Bonivert’s home violated the Fourth Amendment as none of the lawful exceptions to the warrant requirement applied. The officers are not entitled to qualified immunity.

The Police Officers Were Not Entitled to Qualified Immunity.

The Court reasoned that police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the defendants’ conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation.

In other words, the question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Fourth Amendment

The Court of Appeals explained that the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

“It has long been recognized that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” reasoned the Court. “This special protection of the home as the center of the private lives of our people reflects an ardent belief in the ancient adage that a man’s house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.” Consequently, the Court reasoned it is a basic principle of Fourth Amendment law that warrantless searches of the home or the curtilage surrounding the home are presumptively unreasonable.

“Taken in the light most favorable to Bonivert,  . . . the facts demonstrate that the officers violated Bonivert’s constitutional right because no exception to the Fourth Amendment’s warrant requirement justified the officers’ entry into Bonivert’s home.”

Warrantless Entry: Officer are Not Entitled to Entry Under the “Consent” Exception.

The Court explained that although the consent exception ordinarily permits warrantless entry where officers have obtained consent to enter from a third party who has common authority over the premises, Georgia v. Randolph held that an occupant’s consent to a warrantless search of a residence is unreasonable as to a co-occupant who is physically present and objects to the search.

“Such is the situation here,” said the Court of Appeals. “Even though the officers secured
Ausman’s (his girlfriend’s) consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions.”

The court explained that Bonivert expressly refused entry when he locked the side door to his house. During the initial “knock and talk,” Combs and Purcell knocked and attempted to open the front and back doors to the house, but found them to be locked. As the officers circled the house to approach the side door, Bonivert realized it was unlocked and locked it as Combs was approaching. Combs heard the door lock and informed Purcell.

Bonivert also expressly refused entry when he attempted to close the back door on the officers after Combs broke in. Once the officers decided to enter the home by force, Combs used his flashlight to shatter a window pane in the back door, reached through the opening, and unlocked the door. At that point, Bonivert partially opened the door and confronted the officers, which prompted the officers to fire their tasers in dart mode. All parties agree that after the darts failed to make contact, Bonivert tried to shut the door, placing it between himself and the officers, but ultimately was prevented from doing so when Officer Combs rushed through with such force that he threw Bonivert to the other side of the room.

“Based on the foregoing, we hold that the officers are not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement. Simply put, a reasonable officer would have understood that no means no.”

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Emergency” Exception.

The Court reasoned that the emergency aid exception permits law enforcement officers to enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  An entry pursuant to the emergency aid exception is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. However, the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests, because the emergency exception is narrow and rigorously guarded.

“Viewing the facts in the light most favorable to Bonivert, there were simply no circumstances pointing to an actual or imminent injury inside the home,” said the Court. By the time the officers arrived, both Ausman and the child were safely outside, surrounded by four other adults intent on protecting them from harm. During the entire time that the officers spoke to the witnesses, circled and attempted to enter the home from various points, and called on Deputies Gary and Joseph Snyder for backup, the house was silent. Ausman further assured the officers that there were no weapons in the house and that Bonivert did not pose a danger to himself. Consequently, the Court rejected arguments that an emergency existed which allowed warrantless entry into the house.

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Exigent Circumstances” Exception.

The Court explained that the exigency exception permits warrantless entry where officers have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is necessary to prevent the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

Here, the Court reasoned that Bonivert, who was inside his home when the alleged domestic assault occurred and remained there even after the officers broke into his back door, was never a “fleeing suspect.” The officers never articulated any other legitimate law enforcement justification for entry under the exigency exception.

The Lower Court Improperly Denied Bonivart’s Excessive Force Claims.

Taken in the light most favorable to Bonivert, the evidence reflects that Bonivert remained inside the home at all times; that Bonivert did not threaten or advance toward the officers; that Bonivert posed no immediate threat to the officers; that Combs threw Bonivert across the back room; that Bonivert did not resist arrest; and that Combs tasered Bonivert several times in drive-stun mode notwithstanding Bonivert’s compliance. The evidence does not justify the district court’s conclusion that “no reasonable jury could find the use of force within the home excessive.

With that, the Ninth Circuit reversed the district court’s grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry
and excessive force.

Excellent decision.