Monthly Archives: February 2019

Proposed Legislation Makes It Easier to Remove Criminal Convictions.

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Excellent article by Lester Black of the Stranger reports that a proposed state law, HB 1041, would make it easier for people to remove misdemeanors and felonies from their criminal record.
Although certain convictions are already eligible to be vacated, or removed from someone’s record, but this proposed law would greatly expedite the vacation process and expand the types of crimes that are eligible for vacation. An explanation of the bill describes which types of convictions are covered.
Rep. Drew Hansen, a Democrat from Bainbridge who is sponsoring the legislation, said he is supporting the bill so old convictions don’t burden people long after they’ve paid their debts to society.

“This bill makes it easier for people to clear their record when people have truly turned their lives around.” ~Representative Drew Hansen

Also, Rep. Morgan Irwin, a Republican from Enumclaw co-sponsoring the legislation, said the proposed law would give an incentive for people to stay out of the criminal justice system.

“This is about giving people that have… made that mistake a reason to not make another one,” Irwin said at a recent legislative hearing.

According to the Stranger staff reporter Lester Black, the bill would not automatically clear anyone’s criminal record. People would still need to get a judge’s approval for each conviction to be vacated, but the bill would make it easier for people to go through the process and expand the types of criminal convictions that are eligible to be removed from people’s records. Some serious crimes such as second-degree burglary and assault would now be eligible under the proposed law. There is also no official estimate for how many people could take advantage of vacating convictions, according to a financial statement attached to the bill.

King County Prosecuting Attorney Dan Satterberg also spoke in favor of the legislation, noting that the “collateral consequences” a person experiences from a conviction have nothing to do with public safety. Satterberg emphasized that people would still need to convince a judge to vacate their record.

“This is a reward for highly motivated people,” Satterberg said. “We shouldn’t stand in their way, we should encourage that.”

My opinion? This legislation is a step in the right direction. Convictions are crippling. This type of data limits career opportunities, prevents housing, prevents travel and may be used as impeachment evidence should the convicted offender testify in a court hearing.

Seattle Police Accountability Report: More Use of Force Against African Americans

Excellent article by of the Seattle Times reports that Seattle police are using force at low levels but still can’t fully explain why it is used against African Americans at disproportionately higher rates, according to the department’s annual report submitted to the federal judge overseeing court-ordered reforms.

The Seattle Police Department last week filed its 2019 Use of Force report, which shows that the use of force by officers remained “extraordinarily low” last year.

Officers reported using force at a rate of less than one quarter of 1 percent out of the nearly 400,000 incidents to which they responded, the report said. That’s in line with the rate reported a year earlier.

According to Miletich, the report is part of a series to show whether federally-mandated police reforms are being sustained, with an ultimate goal of terminating a court-ordered agreement by 2020. The updates are being provided to U.S. District Judge James Robart, who last year found the city in full compliance with the main terms of a 2012 consent decree with the U.S. Justice Department.

Judge Robart’s ruling triggered a two-year period in which the city must demonstrate that it is maintaining reforms to address allegations of excessive force and issues of biased policing. The city took the lead role in carrying out a self-analysis, although the Justice Department and the court’s monitor, Merrick Bobb, scrutinize the progress.

The police department’s use-of-force reports follow Bobb’s key finding in April 2017 that the department had made a dramatic turnaround. He concluded that overall use of force was down, and that when officers used it, it was largely handled in a reasonable way consistent with department policies.

Still, as in the 2018 report, the new figures show a disparity in the use of force against African Americans. Black males represented 32 percent of cases involving males, up from 25 percent a year earlier. Cases involving black females surged to represent 22 percent of incidents where force was used against females, compared with 5 percent in 2017. African Americans make up about 7 percent of Seattle’s population.

Racial disparity is a “significant ongoing concern” requiring further discussion and analysis within the limited role of law enforcement, the report said.

Yet current sociological and criminal-justice research has not found proven reliable methodology for accounting for all the “multitude of recognized factors” that may combine to result in the disparity, including education, socioeconomic status and family structure, the report said.

“In other words, while numbers can identify a disparity, they cannot explain the disparity,” the report said. At any rate, the police department said it would continue to consult academic experts to learn more, including the possible effects of implicit bias.

Please contact my office if you, a friend or family member had a negative experience which police which turned inappropriately violent. Although police officers have difficult jobs, police misconduct still exists.

Firearms & Terry Stops

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In State v. Tarango, the WA Court of Appeals held that the presence of a firearm in public and the presence of an individual openly carrying a handgun in a “high-risk setting,” are insufficient, standing alone, to support an investigatory stop.

BACKGROUND FACTS

At around 2:00 in the afternoon on a winter day in 2016, Mr. Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who later turned out to be the defendant Mr. Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number. The first officer to respond saw a vehicle meeting Mr. Matthews’s description parked on the east side of the store. He called in the license plate number and waited for backup to arrive. Before other officers could arrive, however, the Suburban left the parking area, traveling west.

The Suburban was followed by an officer and once several other officers reached the vicinity, they conducted a felony stop. According to one of the officers, the driver, Lacey Hutchinson, claimed to be the vehicle’s owner. When told why she had been pulled over, she denied having firearms in the vehicle and gave consent to search it.

After officers obtained Mr. Tarango’s identification, however, they realized he was under Department of Corrections (DOC) supervision and decided to call DOC officers to perform the search.

In searching the area within reach of where Mr. Tarango had been seated, a DOC officer observed what appeared to be the grip of a firearm located behind the passenger seat, covered by a canvas bag. When the officer moved the bag to get a better view of the visible firearm—the visible firearm turned out to be a black semiautomatic—a second firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of ammunition. At that point, officers decided to terminate the search, seal the vehicle, and obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver were recovered when the vehicle was later searched.

The State charged Mr. Tarango, who had prior felony convictions, with two counts of first degree unlawful possession of a firearm. Because Mr. Tarango had recently failed to report to his community custody officer as ordered, he was also charged with Escape from community custody.

Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the traffic stop, arguing that police lacked reasonable suspicion of criminal activity. However, the trial court denied the suppression motion. Later, at trial, the jury found Mr. Tarango guilty as charged. He appealed.

ISSUE

The issue on appeal was whether a reliable informant’s tip that Mr. Tarango was seen openly holding a handgun while seated in a vehicle in a grocery store parking lot was a sufficient basis, without more, for conducting a Terry stop of the vehicle after it left the lot.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that Mr. Tarango’s motion to suppress should have been granted because officers lacked reasonable suspicion that Mr. Tarango had engaged in or was about to engage in criminal activity.

The Court reasoned that warrantless searches and seizures are per se unreasonable unless one of the few jealously and carefully drawn exceptions to the warrant requirement applies.

“A Terry investigative stop is a well-established exception,” said the Court. “The purpose of a Terry stop is to allow the police to make an intermediate response to a situation for which there is no probable cause to arrest but which calls for further investigation . . . To conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop.”

Additionally, the Court of Appeals reasoned that in evaluating whether the circumstances supported a reasonable suspicion of criminal conduct, it reminded that Washington is an “open carry” state, meaning that it is legal in Washington to carry an unconcealed firearm unless the circumstances manifest an intent to intimidate another or warrant alarm for the safety of other persons.

“Since openly carrying a handgun is not only not unlawful, but is an individual right protected by the federal and state constitutions, it defies reason to contend that it can be the basis, without more, for an investigative stop.”

Here, because the officers conducting the Terry stop of the Suburban had no information that Mr. Tarango had engaged in or was about to engage in criminal activity, the officers lacked reasonable suspicion.

Consequently, the Court of Appeals ruled that Tarango’s motion to suppress should have been granted. The Court also reversed and dismissed his firearm possession convictions.

Please contact my office if, a friend or family member face criminal charges. Similar to the excellent defense attorney in this case, experienced attorneys routinely research, file and argue motions to suppress evidence when it is gained by unlawful search and seizure and in violation a defendant’s Constitutional rights.

Unlawful Vehicle Stops

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In United States v. Landeros, the Ninth Circuit Court of Appeals held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

BACKGROUND FACTS

Early in the morning of February 9, 2016, police officer Baker pulled over a car driving 11 miles over the speed limit. The stop occurred on a road near the Pascua Yaqui Indian Reservation. Defendant Alfredo Landeros sat in the front passenger seat next to the driver. Two young women were in the back seat. The driver apologized to Officer Baker for speeding and provided identification.

Officer Baker wrote in his incident report and testified that he smelled alcohol in the car. The two women in the backseat appeared to him to be minors, and therefore subject to the underage drinking laws.  The two women—who were 21 and 19 years old—complied.

Officer Baker did not believe that Landeros was underage, and he was not. Nonetheless, Officer Baker commanded Landeros to provide identification.

Landeros refused to identify himself, and informed Officer Baker that he was not required to do so. Officer Baker then repeated his demand to see Landeros’s ID.” Landeros again refused. As a result, Officer Baker called for back-up, prolonging the stop. Officer Romero then arrived, and he too asked for Landeros’s identification. The two officers also repeatedly commanded Landeros to exit the car because he was not being compliant.

Landeros eventually did leave the car. At least several minutes passed between Officer Baker’s initial request for Landeros’s identification and his exit from the car. As Landeros exited the car, he saw for the first time pocketknives, a machete, and two open beer bottles on the floorboards by the front passenger seat. Under Ariz. Rev. Stat. Ann. § 4-251, Arizona prohibits open containers of alcohol in cars on public highways. Officer Baker then placed Landeros under arrest.

Landeros was arrested both for possessing an open container and for “failure to provide his true full name and refusal to comply with directions of police officers under Ariz. Rev. Stat. Ann. § 13-2412(A). Under that statute, it is unlawful for a person, after being advised that the person’s refusal to answer is unlawful, to fail or refuse to state the person’s true full name on request of a peace officer who has lawfully detained the person based on reasonable suspicion that the person has committed, is committing or is about to commit a crime.”

The officers handcuffed Landeros as soon as he exited the car. Officer Romero asked Landeros if he had any weapons. Landeros confirmed that he had a knife in a pocket. Officer Romero requested consent to search Landeros’s pockets, and Landeros agreed. During that search, Officer Romero found a smoking pipe and six bullets in Landeros’s pockets.

Landeros was federally indicted for possession of ammunition by a convicted felon, 18 U.S.C. §§ 922(g)(1), 924(a)(2). He moved to suppress the evidence based on the circumstances of the stop, however, the lower federal district court denied the motion. Landeros then entered into a plea agreement that preserved his right to appeal the denials of the two motions. The district court accepted the agreement and sentenced Landeros to 405 days in prison and three years of supervised release. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that law enforcement officers may not extend a lawfully initiated vehicle stop because a passenger refuses to identify himself, absent reasonable suspicion that the individual has committed a criminal offense.

The Court reasoned held that because the lower court mistakenly approved the duration of the stop in this case based on United States v. Turvin and wrongfully disregarded Rodriguez v. United States.

“Applying Rodriguez, we shall assume that Officer Baker was permitted to prolong the initially lawful stop to ask the two women for identification, because he had reasonable suspicion they were underage. But the several minutes of additional questioning to ascertain Landeros’s identity was permissible only if it was (1) part of the stop’s “mission” or (2) supported by independent reasonable suspicion.”

The Ninth Circuit also held that any extension of the traffic stop to investigate those matters was an unlawful seizure because there was no evidence that the officer had a reasonable suspicion that the defendant was out past his curfew or drinking underage. As a result, the record does not demonstrate that Officer Baker had a reasonable suspicion that Landeros was out past his curfew or drinking underage. Any extension of the traffic stop to investigate those matters was an unlawful seizure under the Fourth Amendment.

Furthermore, the Ninth Circuit rejected the government’s arguments that the defendant’s refusal to identify himself provided reasonable suspicion of the additional offenses of failure to provide identification and failure to comply with law enforcement orders.

The Court reasoned that here, the officers insisted several times that Landeros identify himself after he initially refused, and detained him while making those demands. “At the time they did so, the officers had no reasonable suspicion that Landeros had committed an offense,” said the Ninth Circuit. “Accordingly, the police could not lawfully order him to identify himself. His repeated refusal to do so thus did not, as the government claims, constitute a failure to comply with an officer’s lawful order . . .” Consequently, reasoned the Ninth Circuit, there was therefore no justification for the extension of the detention to allow the officers to press Landeros further for his identity.

The Ninth Circuit concluded that there was therefore no justification for the extension of the detention to allow the officers to press the defendant further for his identity. It reasoned that the bullets the defendant was convicted of possessing cannot be introduced at trial because he was ordered from the car as part of the unlawfully extended seizure and subsequently consented to a search of his pockets. Furthermore, because the stop was no longer lawful by the time the officers ordered the defendant to leave the car, the validity (or not) of the police officer’s order to exit the vehicle did not matter.

Good opinion.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

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

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