Monthly Archives: April 2018

Evidence of Forgery

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In State v. Bradshaw, the WA Court of Appeals held that sufficient evidence existed to convict the defendant, an escrow agent, of forgery.

BACKGROUND FACTS

In 2014, Defendant/Appellant Stacy Bradshaw was a licensed escrow agent and the owner of North Sound Escrow. By law, an escrow agent must maintain several types of liability insurance. Bradshaw had coverage for crime as well as for errors and omissions through the insurance firm USI Kibble & Prentice. The limits were $1 million per claim.

In February 2014, Bradshaw was retained as the escrow agent for the sale of commercial property for the price of approximately $1.4 million. Umpqua Bank was the lender for one of the parties. Umpqua asked Bradshaw for a copy of her insurance information. Bradshaw obtained a “Certificate of Liability Insurance” from Kibble & Prentice showing her limits of $1 million. She gave Umpqua a copy of the certificate that was altered to represent that Bradehaw had coverage limits of $2 million. Umpqua noticed the alterations and contacted both Kibble & Prentice and the Department of Financial Institutions, the agency that regulates escrow agents. This led to the prosecution of Bradshaw on one count of forgery.

Bradshaw waived her right to a jury trial and opted instead for a bench trial. The court convicted Bradshaw  as charged and sentenced her to 40 hours of community service, $3,600 in financial restitution, and 6 months of community supervision. Bradshaw’s appeal challenges the sufficiency of the evidence.

LEGAL ISSUE

Whether sufficient evidence exists to uphold the defendant’s forgery conviction.

RULE

Under RCW 9A.60.020,  person is guilty of forgery if, with intent to injure or defraud: (a) He or she falsely makes, completes, or alters a written instrument or; (b) He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged.

ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the trial court correctly determined that the Certificate of Liability Insurance has legal efficacy as a written instrument and a public record. The court reasoned that a written instrument is broadly defined in the current statute as “Any paper, document, or other instrument containing written or printed matter or its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification.”

The Court reasoned that the certificate holder named on Bradshaw’s certificate of liability insurance is the Washington State Department of Financial Institutions. The Certificate was filed with the department as evidence that Bradshaw was in compliance with coverage requirements. Finally, the certificate had material significance to the Washington State Department of Financial Institutions.

“As part of the licensing process, and under statute, an escrow agent must submit proof of financial responsibility to the department, including a fidelity bond providing coverage in the aggregate amount of one million dollars,” said the Court. Furthermore, under the Washington Administrative Code, to demonstrate compliance with the requirement for a fidelity bond, the applicant is required to provide the department with a certificate of insurance that includes the aggregate amount of coverage. By statute, maintaining such insurance is “a condition precedent to the escrow agent’s authority to transact escrow business in this state.”

The Court raised and dismissed Bradshaw’s arguments that the evidence is insufficient to prove her certificate of insurance is a public record because the State did not establish that anyone in the department scrutinized it during the process of renewing her license.

“Bradshaw cites no authority for this proposition, and we have found none,” said the Court.

“In short, the record shows that Bradshaw’s certificate of insurance was a type of document required by law to be filed and necessary or convenient to the discharge of the duties of the department. In view of the regulatory scheme, the trial court reasonably found that a certificate of insurance coverage for an escrow agent is a written instrument, the alteration of which supports a forgery charge because it is a public record with legal efficacy.”

With that, the Court held that sufficient evidence supports the trial court’s determination that Bradshaw’s certificate of insurance had legal efficacy as a foundation for legal
liability.

Finally, the Court raised and dismissed arguments that the Rule of Lenity supports the reversal of her conviction.  “The rule of lenity operates to resolve statutory ambiguities in favor of criminal defendant,” said the Court. “It ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” The Court reasoned that here, because Bradshaw’s conduct is clearly covered by the statute, the rule of lenity is not applicable.

Please contact my office if you, a friend or family member face charges of Forgery or other crimes of dishonesty. These convictions wreak havoc on people’s reputations and careers.  Even if guilty, it’s paramount to seek a result which either reduces the charges to a conviction which is not involve a crime of dishonesty or try and dismiss the charges over a period of time if the defendant fulfills certain conditions.

5 Types of Alcoholics

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Apparently, there are several types of alcoholics.

Scientists at the National Institute on Alcohol Abuse and Alcoholism (NIAAA) conducted a survey of 43,093 individuals, screening them for alcohol dependence as well as a wide range of other factors. The NIAAA researchers found that there were five distinct patterns of alcohol dependence.

YOUNG ADULT SUBTYPE

This is the most prevalent subtype, making up 31.5 percent of people who are alcohol dependent. The average age of dependent young adults is 25 years, and they first became dependent at an average of age 20. They tend to drink less frequently than people of other types (an average of 143 days a year). However, most of their drinking is binge drinking – they drink five or more drinks on an average of 104 (73 percent) of those days. On drinking days, the average maximum number of drinks is 14. This pattern of alcohol use is more likely to be hazardous than non-binging patterns.

Young adult alcohol dependents are 2.5 times more likely to be male than female. About 75 percent have never been married, 36.5 percent are still in school, and 54 percent work full time. Approximately 22 percent have a first- or second-degree family member who is also dependent on alcohol. Compared to other types of alcoholics, young adults are less likely to have psychiatric disorders or legal problems. Fewer than 1 percent of them have antisocial personality disorder. About 32 percent also smoke cigarettes, and 25 percent also use cannabis.

Only 8.7 percent of young adult alcohol dependents have ever sought treatment for their drinking problem. If they do choose to seek help, they tend to prefer 12-step programs over specialty treatment clinics or private professional practices.

The NIAAA reports that four out of five college students drink alcohol and half of those who do binge drink. They also note that each year, among college students between the ages of 18 and 24:

  • At least 1,825 students die from alcohol-related accidental injuries.
  • Over 690,000 students are assaulted by another student who has been drinking.
  • More than 97,000 students are victims of alcohol-related date rape or sexual assault.
  • About 599,000 students are unintentionally injured while they are under the influence of alcohol.
  • Over 150,000 students develop alcohol-related health problems.
  • About 25 percent of students experience school-related consequences from their alcohol consumption, such as being late to or missing classes, falling behind on coursework, doing poorly on homework, exams or papers, and receiving overall lower grades.

YOUNG ANTISOCIAL SUBTYPE

Young antisocial alcohol dependents make up 21.1 percent of alcoholics – 54 percent of them have antisocial personality disorder (ASPD). ASPD is characterized by at least three of the following:

  • Recurring criminal activities
  • Regular fights or assaults
  • Lack of regard for the safety of others
  • Lack of remorse
  • Impulsiveness
  • Deceitfulness
  • Irresponsibility

They are also young (average age 26 years), and they have the earliest age of onset of drinking (average 16 years) and the earliest age of alcohol dependence (average 18 years). Young antisocial alcoholics drank an average of 201 days in the last year, binge drinking (consuming five or more drinks) on an average of 161 (80 percent) of those days. When they drink, their maximum number of drinks is 17, the highest of any subtype of alcoholic.

About 76 percent of this type of alcoholic are male. Only 7.6 percent have received a college degree, although another 13.4 percent are still in school. Approximately 47 percent are employed full time. Family incomes average around $32,000, the lowest among the subtypes (alongside the chronic severe subtype).

Over half of young antisocial alcoholics (52.5 percent) have a close family member who is also alcohol dependent. In addition, they also have high rates of psychiatric disorders:

They also have high rates of substance abuse:

Almost 35 percent of young antisocial alcoholics have sought help for their alcohol-dependence problems. They tend to go to self-help groups, detoxification programs, and specialty treatment programs, and they have high rates of participation in treatments offered by individual private health care providers.

The NIAAA reports that alcohol and ASPD make for a dangerous combination. People with ASPD are 21 times more likely to develop alcohol dependence in their lifetimes. Meanwhile, alcohol is more likely to increase aggressive behaviors in people with ASPD than in people without. This may be because alcohol interferes with executive functioning in the brain, which regulates and inhibits aggressive behavior. People with ASPD also show impaired executive functioning, which may make them particularly vulnerable to this effect.

FUNCTIONAL SUBTYPE

Functional alcoholics make up 19.4 percent of alcohol-dependent individuals. This group tends to be older (average age 41 years), has a later age of first drinking (average 19 years), and a later onset of alcohol dependence (average age of 37 years). They tend to drink alcohol every other day (an average of 181 days per year), and they consume five or more drinks on an average of 98 (54 percent) of those days. On drinking days, they tend to consume a maximum of 10 drinks.

About 62 percent of functional alcoholics work fulltime, 3.6 percent are in school fulltime, and 5 percent are retired. Nearly 26 percent have a college degree or higher, and average household income is almost $60,000, the highest among any of the subtypes. Approximately 40 percent are female, and nearly 50 percent are married.

About 31 percent of functional alcoholics have a close family member who also has alcohol dependence. They have moderate rates of major depression(24 percent) and smoking cigarettes (43 percent), and low rates of anxiety disorders, other substance use disorders, and the lowest rates of having legal problems (fewer than 1 percent). Fewer than 1 percent of these individuals have antisocial personality disorder.

Only 17 percent of functional alcoholics have ever sought help for their alcohol dependence. Those who do tend to make use of 12-step programs and private health care professionals. Functional alcoholics make up 19.4 percent of alcohol-dependent individuals. This group tends to be older (average age 41 years), has a later age of first drinking (average 19 years), and a later onset of alcohol dependence (average age of 37 years). They tend to drink alcohol every other day (an average of 181 days per year), and they consume five or more drinks on an average of 98 (54 percent) of those days. On drinking days, they tend to consume a maximum of 10 drinks.

INTERMEDIATE FAMILIAL ALCOHOLICS

Intermediate familial alcoholics make up 18.8 percent of all alcoholics. Nearly half (47 percent) of them have a close family member who is also an alcoholic. They have an average age of 38 years, began drinking at almost age 17, and developed alcohol dependence at an average age of 32 years. Intermediate familial alcoholics drink on an average of 172 days a year, consuming five or more drinks on 93 (54 percent) of those days, with a maximum of 10 drinks.

They have the highest rates of employment among alcoholics, with 68 percent working full time and with an average family income of nearly $50,000 a year. Nearly 20 percent have a college degree. About 64 percent are male, while about 38 percent are married and 21 percent are divorced.

Intermediate familial alcoholics have elevated rates of mental illness:

They also have higher rates of substance use/abuse:

  • 57 percent smoke cigarettes
  • 25 percent have cannabis use disorder
  • 20 percent have cocaine use disorder

Almost 27 percent of intermediate familial alcohol dependents have sought help for their drinking problem. They tend to prefer self-help groups, detoxification programs, specialty treatment programs, and individual private health care providers.

CHRONIC SEVERE SUBTYPE

This is the rarest and most dangerous type of alcoholism, making up 9.2 percent of alcoholics. Chronic severe alcoholics average 38 years of age. They begin drinking early (at 16 years) and develop alcohol dependence later (around 29 years of age). This group has the highest rates of drinking, consuming alcohol on an average of 247.5 days a year and binge drinking on 172 (69 percent) of them, with a maximum of 15 drinks.

The majority of chronic severe alcoholics are male (65 percent). They also have the highest divorce rates, with 25.1 percent divorced and 8.6 percent separated, and only 28.7 percent married. Only 9 percent have a college degree, and they also have the lowest employment rate, with only 43 percent of chronic severe alcoholics employed full time and 7.6 percent both unemployed and permanently disabled.

Chronic severe alcoholics have the highest rate of family members who also experience alcohol dependence, at 77 percent. They are most likely to have mental illnesses:

  • 55 percent have depression
  • 47 percent have antisocial personality disorder (the second-highest rate, after young antisocial alcoholics)
  • 34 percent have bipolar disorder
  • 26 percent have social phobia
  • 25 percent have dysthymia
  • 24 percent have generalized anxiety disorder
  • 17 percent have panic disorder

Substance abuse is also common:

  • 75 percent smoke cigarettes
  • 58 percent have cannabis use disorder
  • 39 percent have cocaine use disorder
  • 24 percent have opioid use disorder

Chronic severe alcoholics experience the most pervasive symptoms:

  • Highest rate of emergency room visits related to drinking of any subtype
  • 94 percent drink larger/longer amounts than intended
  • 92 percent drink despite experiencing problems from drinking, such as at work, school, in relationships, or while driving
  • 88 percent experience withdrawal symptoms
  • 83 percent have repeatedly tried to reduce their drinking
  • 64 percent spend significant time recovering from drinking
  • 48 percent reduced meaningful activities, like hobbies or family time, because of alcohol

Almost 66 percent of chronic severe alcoholics have sought help for their alcoholism. They have the highest rates of attendance at self-help groups, detoxification programs, and specialty rehabilitation programs, and the highest rates of treatment in inpatient programs. When seeking treatment, they tend to turn to social workers, psychologists, psychiatrists, and private physicians.

Alcoholism is a debilitating disease. Making matters worse, it can lead people to commit crimes they otherwise would not commit. DUI is the perfect example of a crime which necessarily involves alcohol or drug abuse. Fortunately, there are defenses. Voluntary Intoxication and/or Diminished Capacity might apply. Please contact my office if you, a friend or family member suffer from alcoholism and are charged with a crime. Perhaps good defenses combined with hard work and strong dedication to a alcohol treatment program might persuade the Prosecutor to reduce or dismiss the charges.

Supreme Court Makes it Harder to Deport Legal Immigrants Who Commit Crimes.

In this Feb. 7, 2017, photo released by U.S. Immigration and Customs Enforcement, foreign nationals are arrested during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles. (Charles Reed/U.S. Immigration and Customs Enforcement via AP, File)

In Sessions v. Dimaya, the United States Supreme Court held that 18 U. S. C. §16(b), which defines “violent felony” for purposes of the Immigration and Nationality Act’s removal provisions for non-citizens, was unconstitutionally vague.

BACKGROUND FACTS

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California’s first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, the U.S. Supreme Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Relying on Johnson v. United States, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delivered the majority opinion of the Court and concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court’s opinion began by explaining that The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence for which the term of imprisonment is at least one year.

Justice Kagan explained that Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether the particular facts underlying a conviction created a substantial risk; but whether “the ordinary case” of an offense poses the requisite risk.

Justice Kagan reasoned that ACCA’s residual clause created grave uncertainty about how to estimate the risk posed by a crime because it tied the judicial assessment of risk to a speculative hypothesis about the crime’s ordinary case, but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. “The combination of indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony resulted in more unpredictability and arbitrariness than the Due Process Clause tolerates,” said Justice Kagan.

Justice Kagan further reasoned that Section 16(b) suffers from those same two flaws. He explained that similar to the ACCA’s residual clause, §16(b) calls for a court to identify a crime’s ordinary case in order to measure the crime’s risk but offers no reliable way to discern what the ordinary version of any offense looks like. Additionally, its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. “Thus, the same two features that conspired to make ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result,” said Justice Kagan.

Next, Justice Kagan raised and dismissed numerous arguments from the Government that §16(b) is easier to apply and thus cure the constitutional infirmities. “None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate,” said Justice Kagan.

With that, the majority Court concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court was deeply divided. Justice Kagan’s opinion was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. Justice Gorsuch filed an opinion concurring in
part and concurring in the judgment. Justice Roberts filed a dissenting
opinion, in which Justices Kennedy, Thomas, and Alito joined.

Interestingly, it was Justice Gorsuch — a Trump nominee who sided with the four liberal-leaning justices in the ruling — who was the swing vote in this case. Despite his surprise vote, he explicitly left the door open to Congress to act, saying it should be up to lawmakers and not the courts to be explicit about the crimes that deserve automatic deportation for even legal immigrants.

My opinion? This decision is very good for legal immigrants facing crimes which are questionably deportable as crimes of moral turpitude and/or crimes of violence under today’s immigration laws. It’s incredibly difficult to navigate the criminal justice system, and even more so for defendants who are not citizens. Therefore, it’s imperative for legal immigrants charged with crimes to hire competent defense counsel when charged with crimes which may essentially result in deportation. Please contact my office if you, a friend or family member are legal immigrants facing felonies and/or domestic violence crimes.

Marijuana Use & Your Job

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Interesting article by Dr. Kelly Arps of abc news reports that a survey released by the Centers for Disease and Control Prevention (CDC) Thursday may help inform employers about marijuana use in their industry.

The Colorado Department of Public Health and Environment (CDPHE) analyzed data from the Behavioral Risk Factor Surveillance System (BRFSS) — a phone survey about health habits in general — and published a breakdown of marijuana use by industry and job.

Of the more than 10,000 workers surveyed, 14.6 percent answered yes to the question, “Did you use marijuana or hashish in the last 30 days?” They were not asked whether they used marijuana while on the job. Not surprisingly, use was more common in males and among young people, with nearly 30 percent of those in the 18- to 25-year-old age group reporting at least one use in 30 days.

Which profession smokes the most pot?

In the “accommodation and food services” industry, 30 percent of workers reported smoking pot at least once in the past month. Those in the job category “food preparation and serving” had the highest use at 32 percent of workers.

What other professions have a high proportion of marijuana users?

“Arts, design, entertainment, sports and media” came in second at 28 percent. Marijuana use was also reported by 19 to 21 percent of workers in “production,” “life, physical, and social science,” “sales and related,” and “installation, maintenance, and repair.”

What about people in high risk jobs?

While the study doesn’t reveal if anyone actually got high on the job, the researchers did take a special look at industries in “safety-sensitive occupations” in which workers are responsible for their own safety or the safety of others.

Those in construction, manufacturing, and agriculture industries all fell above the state average in percentage of workers reporting marijuana use. Notably, healthcare, utilities, or mining, oil, and gas all had less than 10 percent of their workers report marijuana use.

All three of these low-use industries are also those known to perform drug testing on employees.

Next steps: Workplace marijuana use policies

In states where marijuana use is legal, companies are currently left to their own judgment regarding workplace use.

Those with a policy that allows medicinal or recreational marijuana use during personal time will have difficulty interpreting a positive drug screen — was the employee high at work or does the result reflect his or her use last weekend?

Experts have suggested implementing standardized cognitive testing rather than drug screens for those approved to use marijuana while employed — or for those with a suspected marijuana-related workplace safety incident.

Marijuana use is frequently linked to mental health issues

Dr. Arps reports that if an employee is using marijuana, then employers should dig further.

“Is there anxiety, is there ADHD, is there depression?” said Dr. Scott Krakower. “If marijuana is there, what else are we missing? Are we meeting our employees’ needs?”

Dr. Arps also reports that federal law allows employers to prohibit employees from working under the influence of marijuana and may discipline employees who violate the prohibition without violating the Americans with Disabilities Act.

Several states have laws, however, which prohibit discrimination based on its use, citing evidence supporting the positive effects of marijuana on various health conditions.

“With widespread legalization, we will likely see publicized court cases surrounding these issues,” says Dr. Arps.

Please contact my office if you, a friend or family member faces criminal charges involving marijuana, drugs or drug addictions. I dedicate my career to helping clients face tough circumstances in their lives and work hard to get criminal charges reduced or dismissed.

Whatcom County Sues Opioid Drug Manufacturer

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Impressive article by Kie Relyea of the Bellingham Herald discusses how the Whatcom County Council voted to join a growing legal fight against makers and wholesalers of prescription opioids, saying they have contributed to a public health crisis.

On Tuesday, the County Council decided to retain law firm Keller Rohrback in Seattle, which is representing a number of municipalities including Skagit, Pierce and King counties in Washington state.

The vote was 7-0.

“Pretty broad consensus it was a good thing to do for the county.”

-Council member Todd Donovan.

Relyea reports that the law firm will sue the makers and distributors of opioid painkillers, including Purdue Pharma, Endo Pharmaceuticals, Janssen Pharmaceuticals and other entities.

The law firm has so far filed lawsuits on behalf of five counties in the state, as well as the City of Tacoma.

Whatcom County isn’t paying the law firm, which will be compensated if there’s a judgment against the companies, Donovan said.

The county wants help responding to a public health crisis caused by opioids, according to Donovan.

“They are partially liable for over-prescribing these things and marketing them as non-addictive,” he said. “They should help us in bearing the cost.”

In a separate lawsuit filed in 2017, the state of Washington sued Purdue Pharma, the maker of OxyContin, accusing it of “fueling the opioid epidemic in Washington state.”

My opinion? GOOD. Opioids have turned many law-abiding  and hardworking Americans into drug addicts. A substantial portion of my criminal defense practice is dedicated to helping clients who suffer from drug addictions which force them to commit crimes.  You’d be amazed.

Contact my office if you, a friend or family member is addicted to opioids and charged with a crime. The defense of Diminished Capacity may apply. Under this defense, evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form the intent to commit the crime. In some cases, drug addicts lack intent to commit crimes because they are acting under the compulsion of their addiction.

Marijuana vs. Alcohol

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Wonderful article by Matthew Martinez of the Miami Herald says that according to new research from Cowen and Company, seven of the nine states that allow adults to legally consume marijuana saw 13 percent fewer binge drinking episodes than non-cannabis states, and 9 percent fewer than the national average. In recreational use states, binge drinkers guzzled 6.6 drinks per binge, compared with 7.4 drinks in non-cannabis states.

“We have consistently argued that cannabis and alcohol are substitute social lubricants,” the report reads. “To be sure, we do not dispute that alcohol will continue to be quite popular in the U.S. (generating over $210 bn in annual retail sales today). We are, however, focused on the marginal alcohol unit, which given the cannabis category’s much smaller size, creates a sizable opportunity for the cannabis industry.”

Nevada and California, the two states to have most recently legalized recreational pot, still had higher rates of binge drinking intensity than Colorado, Washington, Oregon, Maine, Vermont, Massachusetts and the District of Columbia, but the report stated the company expects “mean reversion for these states, too, given the historical precedent.”

People’s decision to switch to marijuana, according to the report, include: outsized switching among younger consumers, shifting risk perceptions among 18- to 25-year-olds, less pressure to generate alcohol tax revenue in legal cannabis states, consumer survey work on alcohol consumption among cannabis consumers, and academic research that concludes medical cannabis weighs on alcohol purchases.

The Wall Street investment firm calls marijuana a viable “substitute social lubricant” for alcohol in the years to come, projecting even greater sales numbers for the industry than previously thought.

“Assuming federal legalization, we believe cannabis can generate gross sales of $75 billion by 2030 (and $17.5 billion in tax revenue),” the report reads. “As cannabis access expands, we expect further pressure on alcohol sales, given this notable divide in consumption patterns.”

A 2015 study published in the Journal of Health Economics and cited by The Washington Post, studying a drop-off in people’s marijuana use and a corresponding spike in their alcohol use once they reach age 21, the age to legally drink in the U.S., concluded that the two substances are indeed substitutes for each other among users.

What Cowen and Company’s more recent research finds is almost the exact inverse of that older study: that as recreational marijuana becomes legal in more and more states, some people are choosing the high from the plant over the the one from the bottle.

A study published in March in the journal Neuropsychopharmacology found that one of the non-psychoactive compounds in marijuana, cannabidiol (CBD), could also help drug addicts and alcoholics from relapsing.

Contact my office if you, a friend or family member are charged with a crime involving drugs or alcohol. The substantive defenses of Voluntary Intoxication and Diminished Capacity might be applicable to the specific facts of the case.

The Particularity Requirement for Search Warrants

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In State v. McKee, the WA Court of Appeals held that a search warrant that authorized the police to search and seize a large amount of cell phone data, including images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, and tasks, and authorized a “physical dump” of “the memory of the phone for examination,” violated the particularity requirement of the Fourth Amendment.

BACKGROUND FACTS

In 2012, A.Z. lived with her older brother and her mother in Anacortes. All parties were addicted to heroin, methamphetamine or both. A.Z. was using heroin and methamphetamine on a daily basis during 2012.

In January 2012, A.Z.’s mother introduced A.Z. to 40-year-old Marc Daniel McKee during a “drug deal” for methamphetamine. McKee started spending a lot of time with the family and supplied them with methamphetamine. They would often “get high” together. At the end of June, McKee left to go to Alaska for work.

When McKee returned two months later, he immediately contacted A.Z. McKee told A.Z. he had heroin and methamphetamine. McKee and A.Z. spent three days together at a Burlington motel using the drugs and engaging in consensual sex.

Eventually, A.Z’s mother confronted McKee about the sexual encounters between A.Z. and McKee. Bringing another male with her A.Z.’s mother confronted McKee at a hotel room, beat him up, took his cell phone, and pulled A.Z out of the room. Later, A.Z.’s mother scrolled through the phone. She found pictures and videos of her daughter A.Z tied naked to a bed as well as videos of McKee and A.Z. having sex.

After A.Z.’s mother looked at the video clips and photographs on the cell phone, she contacted the Mount Vernon Police Department. On October 30, A.Z.’s mother met with Detective Dave Shackleton. A.Z.’s mother described the video clips and photographs she saw on the cell phone. She left the cell phone with Detective Shackleton. Later, A.Z.’s mother contacted Detective Shackleton to report that J.P., another minor female, told her that McKee gave J.P. drugs in exchange for sex. Brickley obtained a restraining order prohibiting McKee from contacting A.Z.

Application for a Search Warrant

On October 31, Detective Jerrad Ely submitted an application and affidavit (Affidavit) in support of probable cause to obtain a warrant to search McKee’s cell phone to investigate the crimes of “Sexual Exploitation of a Minor RCW 9.68A.040” and “Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct RCW 9.68A.050.” The court issued a search warrant.

The warrant allowed the police to obtain evidence from the cell phone described as an LG cell phone with model VX9100 currently being held at the Mount Vernon Police Department for the following items wanted:

“Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/internet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.”

The search warrant authorizes the police to conduct a “physical dump” of the memory of
the cell phone for examination. On November 7, 2012, the court filed a “Receipt of Execution of Search Warrant.” The Receipt of Execution of Search Warrant states the police conducted a “Cellebrite Dump” of the cell phone on November 6. Cellebrite software obtains all information saved on the cell phone as well as deleted information and transfers the data from the cell phone to a computer.

Criminal Charges

The State charged McKee with three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the first Degree in violation of RCW 9.68A.070(1) based on the three cell phone video clips, one count of Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct in the Second Degree in violation of RCW 9.68A.070(2) based on the cell phone photographs, one count of Commercial Aex Abuse of J.P. as a minor in violation of RCW 9.68A.100, three counts of Distribution of Methamphetamine and/or Heroin to a person under age 18 in violation of RCW 69.50.406(1) and .401(2), and one count of Violation of a No-Contact Order in violation of RCW 26.50.110(1).

Motion to Suppress

McKee filed a motion to suppress the evidence the police seized from his cell phone. McKee asserted the search warrant violated the Fourth Amendment requirement to describe with particularity the “things to be seized.” McKee argued the warrant allowed the police to search an “overbroad list of items” unrelated to the identified crimes under investigation. McKee also argued probable cause did not support issuing a search warrant of the cell phone for the crime of dealing in depictions of a minor engaged in sexually explicit conduct.

The court entered an order denying the motion to suppress. The court found the allegations in the Affidavit supported probable cause that McKee committed the crimes of sexual exploitation of a minor and dealing in depictions of minors engaged in sexually explicit conduct. The court concluded the citation to the criminal statutes established particularity and the search warrant was not overbroad.

At trial, the jury found McKee not guilty of distribution of methamphetamine and/or heroin. The jury found McKee guilty as charged on all other counts.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals held that the search warrant violated the particularity requirement of the Fourth Amendment, and that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

The Court reasoned that the Fourth Amendment was adopted in response to indiscriminate searches and seizures conducted under the authority of ‘general warrants.’

“The problem posed by the general warrant is not that of intrusion per se, but of a general,
exploratory rummaging in a person’s belongings,” said the Court. “The Fourth Amendment
addresses the problem by requiring a particular description of the things to be seized . . .

The court further reasoned that by limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and would not take on the character of the wide-ranging exploratory searches the Framers of the Constitution intended to prohibit.

“The degree of specificity required varies depending on the circumstances of the case and the types of items,” said the Court. “The advent of devices such as cell phones that store vast amounts of personal information makes the particularity requirement of the Fourth Amendment that much more important.” The Court also quoted language from the U.S. Supreme Court’s Riley v. California and the WA Supreme Court’s State v. Samilia; both cases strongly supporting the notion that cell phones and the information contained therein are private affairs because they may contain intimate details about individuals’ lives.

“Here, the warrant cites and identifies the crimes under investigation but does not use the language in the statutes to describe the data sought from the cell phone,” said the Court. “The warrant lists the crimes under investigation on page one but separately lists the “Items Wanted” on page two.” Consequently, the Court reasoned that the description of the “Items Wanted” was overbroad and allowed the police to search and seize lawful data when the warrant could have been made more particular.

Furthermore, the Court held that the warrant in this case was not carefully tailored to the justification to search and was not limited to data for which there was probable cause. The warrant authorized the police to search all images, videos, documents, calendars, text messages, data, Internet usage, and “any other electronic data” and to conduct a “physical dump” of “all of the memory of the phone for examination.”

“The language of the search warrant clearly allows search and seizure of data without regard to whether the data is connected to the crime,” said the Court. “The warrant gives the police the right to search the contents of the cell phone and seize private information with no temporal or other limitation.” As a result, reasoned the Court, there was no limit on the topics of information for which the police could search. Nor did the warrant limit the search to information generated close in time to incidents for which the police had probable cause:

“The warrant allowed the police to search general categories of data on the cell phone with no objective standard or guidance to the police executing the warrant. The language of the search warrant left to the discretion of the police what to seize.”

With that, the Court of Appeals held the search warrant violated the particularity requirement of the Fourth Amendment. The Court reversed and dismissed the four convictions of Possession of Depictions of a Minor Engaging in Sexually Explicit Conduct.

My opinion? For the most part, courts look dis favorably on the searches of people’s homes, cars, phones, etc., unless the probable cause for the search is virtually overwhelming, and/or an emergency exists which would spoil the evidence if it was not gathered quickly; and/or a search warrant exists. Even when search warrants are drafted and executed, they must be particular to the search. In other words, law enforcement can’t expect that a general, non-specific search warrant is going to win the day for them and allow a fishing expedition to take place.

Here, the Court of Appeals correctly followed the law. In this case, limiting the search to the crimes cited on the first page of the warrant was insufficient. The descriptions of what to be seized must be made more particular by using the precise statutory language to describe the materials sought.

Please contact my office if you, a friend or family member’s person, home, vehicle or cell phone was searched by police and evidence was seized. The search may have been unlawfully conducted in violation of your Constitutional rights.

Probation Searches

Image result for illegal search and seizure in vehicle

in State v. Cornwell, the WA Supreme Court held that Article I, section 7 of the Washington Constitution requires a nexus between the property searched and the suspected probation violation. Here, there was no nexus between the defendant’s failure to report to DOC and the car which the defendant was driving.

BACKGROUND FACTS

In September 2013, petitioner Curtis Lament Cornwell was placed on probation. His judgment and sentence allowed his probation officer to impose conditions of his release, which included the following provision:

“I am aware that I am subject to search and seizure of my person, residence, automobile, or other personal property if there is reasonable cause on the part of the Department of Corrections to believe that I have violated the conditions/requirements or instructions above.”

Cornwell failed to report to the Department of Corrections (DOC) in violation of his probation, and DOC subsequently issued a warrant for his arrest.

Cornwell first came to the attention of Tacoma Police Department Officer Randy Frisbie and CCO Thomas Grabski because of a distinctive Chevrolet Monte Carlo observed outside a house suspected of being a site for drug sales and prostitution. An officer conducted a records check and determined he had an outstanding warrant.

In late November 2014, Officer Frisbie testified that he intended to stop the vehicle because he believed Cornwell was driving it and he had an outstanding warrant. He did not initiate the stop based on any belief that the car contained drugs or a gun or because he observed a traffic violation.

Before Officer Frisbie could activate his police lights, the car pulled into a driveway and Cornwell began to exit it. Cornwell ignored Officer Frisbie’s orders to stay in the vehicle, and Officer Frisbie believed Cornwell was attempting to distance himself from the car. Officer Frisbie then ordered Cornwell to the ground. Cornwell started to lower himself in apparent compliance before jumping up and running. Cornwell was apprehended after both officers deployed their tasers. He had $1,573 on his person at the time of arrest.

After securing Cornwell, Officer Patterson called CCO Grabski to the scene. Upon arrival, CCO Grabski searched the Monte Carlo. He described the basis for his search as follows:

“When people are in violation of probation, they’re subject to search. So he’s driving a vehicle, he has a felony warrant for his arrest by DOC, which is in violation of his probation. He’s driving the vehicle, he has the ability to access to enter the vehicle, so I’m searching the car to make sure there’s no further violations of his probation.”

In this case, CCO Grabski found a black nylon bag sitting on the front seat of the car. The bag contained oxycodone, amphetamine and methamphetamine pills, sim cards, and small spoons. A cell phone was also found in the car.

Cornwell moved pursuant to CrR 3.6 to suppress the evidence obtained during the vehicle search. The trial court denied the motion.

A jury convicted Cornwell of three counts of unlawful possession of a controlled substance with intent to deliver and one count of resisting arrest. The Court of Appeals affirmed the conviction. The WA Supreme Court granted review on the issue of whether the search of the car Cornwell was driving an unlawful search.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that individuals on probation are not entitled to the full protection of the Constitution. The Court reasoned that probationers have a reduced expectations of privacy because they are serving their time outside the prison walls. Accordingly, it is constitutionally permissible for a CCO to search an individual based only on a well-founded or reasonable suspicion of a probation violation, rather than a search warrant supported by probable cause.

However, the Court also also reasoned that the goals of the probation process can be accomplished with rules and procedures that provide both the necessary societal protections as well as the necessary constitutional protections.

“Limiting the scope of a CCO’s search to property reasonably believed to have a nexus with the suspected probation violation protects the privacy and dignity of individuals on probation while still allowing the State ample supervision,” said the Court. “We therefore hold that article I, section 7 permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.”

The Court reasoned that the CCO’s search of Cornwell’s car exceeded its lawful scope.

“While CCO Grabski may have suspected Cornwell violated other probation conditions, the only probation violation supported by the record is Cornwell’s failure to report,” said the Court. It also reasoned that CCO Grabski’s testimony at the suppression hearing confirmed that he had no expectation that the search would produce evidence of Cornwell’s failure to report.

“In this case, the search of Cornwell’s vehicle was unlawful because there was no nexus between the search and his suspected probation violation of failure to report to DOC,” concluded the Court. “The evidence seized during the search should have been suppressed. Accordingly, we reverse the Court of Appeals and Cornwell’s convictions.”

Contact my office if you, a friend or family member were subject to an unlawful search. It is imperative to hire experienced and competent defense counsel to suppress evidence of an unlawful search as quickly as possible.