Category Archives: Community Caretaking

State v. Froehrich: Unlawful Inventory Search

Image result for unlawful search purse bag

In State v. Froehlich, the WA Court of Appeals Division II upheld the suppression of methampetamine found in a vehicle because the defendant’s car was unlawfully searched.

BACKGROUND

Ms. Froehlich was driving her car. She collided with a pickup truck waiting at a stop sign. After the collision, the car came to rest on the right shoulder of the highway. It was not obstructing traffic. A Washington State Patrol Trooper arrived at the scene. By this time, Froehlich was seated in the pickup truck that she had hit.

Ms. Froehlich eventually left the scene in an ambulance after talking with police at the scene. One trooper followed her to the hospital to do sobriety testing, and she was not arrested. However, the trooper at the scene of the accident decided to impound her car. At the scene, he performed an inventory search of the vehicle which also included the search of Froerich’s purse which she left inside the car. He found methamphetamine.

Ms. Froehrich was charged with Unlawful Possession of a Controlled Substance With Intent to Manufacture or Deliver. Froehlich filed a motion to suppress the methamphetamine, arguing in part that the Trooper had no reason to impound the car and failed to consider reasonable alternatives to impoundment. The trial court granted the motion, suppressed the evidence and ultimately dismissed the charges. The State appealed.

ANALYSIS

Ultimately, the Court of Appeals agreed with the lower court that the impoundment was not lawful and therefore the search was not lawful because (1) under the community caretaking exception, the State did not prove that the impounding officer considered whether Froehlich, her spouse, or her friends were available to remove the vehicle; and (2) even though there was statutory authority for impoundment, the State failed to prove that the impounding officer considered all reasonable alternatives.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless an exceptions to the warrant requirement applies. One exception to the warrant requirement is a non-investigatory, good faith inventory search of an impounded vehicle. Law enforcement may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a traffic offense for which the legislature has expressly authorized impoundment. Even if one of these reasons exists, however, an officer may impound a vehicle only if there are no reasonable alternatives.

Here, the Trooper’s impoundment of Froehlich’s car was not lawful under the community caretaking function because there were reasonable alternatives to impoundment. Here, the Trooper never asked Froehlich about arranging to have someone else remove the car as an alternative to impoundment, and the State presented no evidence that the Trooper considered Froehlich’s ability to arrange for the car’s removal.

CONCLUSION

Because Richardson unlawfully impounded the vehicle, his seizure of methamphetamine from Froehlich’s purse was unlawful.

My opinion? Good decision. Very simple, straightforward and correct analysis. As usual, I’m extremely impressed with Division II’s handling of search and seizure issues, especially when it comes to vehicle searches. Here, it’s clear that police officers cannot go about impounding people’s vehicles and searching through belongings when reasonable legal alternatives exist.

Backpack Searches When Jailed

In State v. Dunham, the WA Court of Appeals Division II decided that a warrantless search of a suspect’s locked backpack pocket was a lawful inventory search where the defendant was booked into jail, a search of his person produced knives, the backpack was to be logged into the jail’s temporary storage area and the officer felt knives on the outside of the backpack.

On January 29, 2014, Sergeant Gwen Carrell of the Chehalis Police Department responded to a reported shoplifting at a local department store. Upon arrival, Sgt. Carrell met with loss prevention officers. They told Sgt. Carrell that defendant Jason Dunham had multiple knives in his backpack and that they had removed the backpack from Dunham’s reach. Sgt. Carrell placed Dunham in handcuffs for officer safety and searched him for weapons. She located two more knives on Dunham’s person, arrested Dunham for theft and booked him into jail.

Sgt. Carrell searched Dunham’s backpack for items to be logged into the jail’s temporary storage. This is called an inventory search. In short, it is every police department’s policy to inventory items to be held in its storage facility for any dangerous items. As part of this policy, knives are to be kept in secure containers, preventing them from puncturing anything.

Sgt. Carrell used Dunham’s keys to unlock the backpack pocket. She opened the pocket and observed a flashlight, a butane torch, and a glass pipe. What Sgt. Carrell thought was a knife was actually the butane torch. The residue in the glass pipe tested positive for methamphetamine. The State charged Dunham with Possession of a Controlled Substance and Theft in the Third Degree.

Dunham filed a motion to suppress the evidence found during Sgt. Carrell’s search of the locked portion of his backpack pursuant to CrR 3.6, arguing that the search violated his constitutional rights. The trial court denied the motion and ruled that the inventory search was valid. Later, the trial court found him guilty on both counts at a bench trial.

Dunham appealed. He argued that the warrantless search of his backpack’s locked pocket violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. He claims that the search was not a valid inventory search.

Unfortunately for Dunham the Court of Appeals disagreed. First it reasoned that  inventory searches are an exception to the requirement that police have a warrant to search people’s personal property. Second, the Court described the purpose of an Inventory Search:

“The purpose of an inventory search is not to discover evidence of a crime, but to perform an administrative or caretaking function. The principal purposes of an inventory search are to (1) protect the owner’s property, (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger. The scope of an inventory search should be limited to those areas necessary to fulfill its purpose.”

Third, the Court reasoned that Officer Carrel’s safety concern about potentially exposed knives in the locked pocket was reasonable based on the facts that (1) several knives were found on Dunham’s person, (2) additional knives were found in the unlocked portion of Dunham’s backpack, (3) one of the knives found in the backpack was unsheathed, and (4) Sgt. Carrell felt what she believed to be another knife in the locked pocket of the backpack. Therefore, a manifest necessity existed for searching the locked portion of the backpack.

Finally, the Court concluded that the inventory search was valid and affirmed Dunham’s conviction:

“Substantial evidence supports the challenged finding of fact. Given the reasonable indication that the locked portion of the backpack contained dangerous items along with Sgt. Carrell’s reasonable fear of being stabbed, we hold that a manifest necessity existed to search No. 46169-2-II 8 inside the locked portion of the backpack. Therefore the trial court’s findings of fact support its conclusion that the inventory search was valid. We affirm Dunham’s conviction.”

My opinion? Search and seizure issues are a HUGE aspect of unlawful possession cases. The legal issues come down to whether the search was lawful, and if not, whether the evidence can be suppressed. Here, the court’s decision appears sound. Under Washington law, officers may search a suspect’s person if they feel “hard and sharp” objects through the outside of a suspect’s clothing. This is done for officer safety. Similarly, Inventory Searches are conducted under the same policy of preserving officer safety. Here, the hard and sharp objects felt through Dunham’s backpack raised a safety concern. Therefore, the search appears lawful.

For more information on Search and Seizure Issues please review my Legal Guide titled, “Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.” There, I provide links to my analysis of Washington cases discussing searches of persons, vehicles, cars and homes. Also, please go the search engine of my Blog if you have specific queries about these issues.

Finally, I am available for free consultations if you face criminal charges involving search and seizure issues.

Good luck!

“Community Caretaking” Search Upheld as Lawful

In State v. Duncan, the WA Supreme Court decided police officers may make a limited sweep of a vehicle under the community caretaking exception to the warrant requirement when (1) there is reasonable suspicion that an unsecured weapon is in the vehicle and (2) the vehicle has or shortly will be impounded and will be towed from the scene. However, this exception may not be used as a pre-text for an investigative search.

A little after midnight in Yakima one summer night in 2009, someone in a car shot into a home, grazing Kyle Mullins’ head. Other people in the home called 911 for medical assistance and to report the shooting. Callers described the car as white and possibly a Subaru or Impala. Officers were dispatched and stopped Duncan’s white Ford Taurus. Officers removed Duncan and his two passengers from the car at gunpoint, ordered them to the ground, handcuffed them, and put them in separate police cars. Without a warrant, officers opened the doors and found shell casings on the floor and a gun between the front passenger seat and the door. One officer removed the gun and placed it into an evidence bag in his own patrol car. The passengers told the police that Duncan had fired from the car and tossed the gun on the front floorboards. After the car was towed to a police annex, police obtained a warrant and made a more thorough search.

Duncan was charged with six counts of first degree assault and one count of unlawful possession of a firearm. Duncan moved to suppress the evidence under CrR 3.6 and confessions under CrR 3.5 that flowed from the traffic stop on several grounds, including that the police had insufficient grounds to stop him and that their initial warrantless search of his car was improper. At the pretrial suppression hearing, held a year and a half after the events of that summer night, the judge found that the stop was justified and that the search was reasonable, and denied the motions.

The jury returned guilty verdicts on all charges and found by special verdicts that Duncan was armed with a firearm. The judge sentenced Duncan to 1,159 months of incarceration, the top of the standard range. Duncan’s projected release date is March 26, 2099.

The case was appealed to the WA Supreme Court to decide the issue of whether the warrantless search of Duncan’s vehicle was lawful. The Court decided it was.

The Court reasoned that generally, warrantless searches and seizures are per se unreasonable. Nonetheless, there are a few jealously and carefully drawn exceptions to the warrant requirement which provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers of the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate. The State bears the burden of showing that the search and seizure was supported by a warrant or an exception to the warrant requirement. The fruits of an unconstitutional search and seizure must be suppressed.

The Court reasoned that the search was not lawful under Arizona v. Gant for “officer safety” reasons  because the vehicles’ occupants are detained in police cars. Also the search was not lawful under the Plain View Doctrine because the officers could see the gun from outside the vehicle. Finally, the search was also not a valid inventory search because the car was not impounded.

However, the court found the search was lawful under the community caretaking exception to the warrant requirement. Under that exception, officers may make a limited sweep of a vehicle when (1) there is reasonable suspicion that an unsecured weapon is in the vehicle and (2) the vehicle has or shortly will be impounded and will be towed from the scene.

We caution, however, that the community caretaking exception is a strictly limited exception to the warrant requirement. It may not, however, be used as a pretext for an investigatory search:

“It will only rarely justify intrusion into a private place or vehicle after an arrest. However, given the facts of this case and the fact that the sweep of the vehicle occurred before our opinion in Snapp, 174 Wn.2d 177, was announced, we are confident that the desire to remove an unsecured gun from the vehicle was not here used as a pretext for an otherwise unlawful search.”

With that, the Court concluded that the limited search of the vehicle was lawful and affirmed Duncan’s conviction.

My opinion? For those who don’t know, pretextual searches are unlawful. They usually describes false reasons that hide the true intentions or motivations for a legal action. If a party trying to admit the evidence can establish good reasons, the opposing party – usually, the defense – must prove that the these reasons were “pretextual,” or false, and move to suppress the “fruits” of the search.

Here, I understand the Court’s logic. I’m glad the Court appreciates the unlawfulness of pretextual searches and makes distinctions in the case at hand. Unfortunately, until now, unlawful pretext searches have been mitigated and/or simply ignored by our courts for many years.

Bellingham Police Get Software to Map Crime Patterns

This screen-grab is a sample interactive map that shows criminal activity in the downtown Seattle area. Bellingham is buying similar Predictive Policing Software.

According to the Bellingham Herald, the Bellingham Police Department plans to buy “Predictive Policing Software” that will map crime patterns in the city and help officers decide where to patrol.

For those who don’t know, “Predictive Policing Software” is computer technology which uses advanced mathematics and algorithms to predict the times, locations and “types” of many crimes in any given jurisdiction. Police agencies can use this software to predict property crimes, drug incidents, gang activity, and gun violence, as well as traffic accidents.

The software, by Bair Analytics, will help compile reports currently put together by the department’s current crime analyst, who plans to retire soon.

According to the Bellingham Herald, officers currently use similarly compiled crime information to help detect criminal patterns and choose where they should focus their efforts. For example, if a series of home break-ins has been reported in a specific neighborhood, and officers see that similar methods were used to get into the homes, they start looking at what days and times those crimes happened to try to prevent another or catch the criminal in the act.

“A few years back we had a long series of rooftop burglaries and it took a while to catch the guys that were doing it,” Vander Yacht said. “We had to figure out the best times and places for them to do that.”

 

The software also allows interested citizens to sign up for alerts and view an interactive map of criminal activity in their area. The information included on the map is somewhat limited to protect the privacy of victims.

The map, which can be found at raidsonline.com, currently shows information for 15 Washington cities, including Seattle, Richland and Pasco. RAIDS stands for Regional Analysis and Information Data Sharing.

My opinion? Interesting technology. I don’t see if it violates people’s Constitutional Rights or infringes on their privacy. There shouldn’t be any problem with the implementation of this technology as long as the information does not target a particular individual.

Still, one gets a sense that Big Brother is getting better at watching us . . .

Bellingham is buying predictive policing software that will map crime patterns in the city and help officers decide where to patrol. The software, by Blair Analytics, will essentially replace the Bellingham Police Department’s current crime analyst.

State v. A.A.: Unlawful Search of Juvenile

 In State v. AA, the Washington Court of Appeals decided an officer who detained a runaway juvenile under RCW 13.32A, the Family Reconciliation Act, unlawfully removed methamphetamine and marijuana from the youth’s pocket. The court reversed his conviction.

In State v. AA, the juvenile defendant A.A. was reported as a runaway. Officer Escamilla found A.A. walking down an alley a few blocks north of his mother’s house. The Officer detains AA and conducts a search before taking AA to the Crisis Residential Center (CRC), a detention center for minors.

Officer Escamilla searched A.A. near his patrol car. During the search, the officer found methamphetamine in a coin pocket of A.A.’s pants and marijuana in another pocket. The officer then transported A.A. to a juvenile detention center, rather than the CRC. The State charged A.A. with two counts of Unlawful Possession of a Controlled Substance.

The trial court denied AA’s motion to suppress the evidence. At the CrR 3.6 hearing, Officer Escamilla testified that A.A. was “just walking down an alley” and appeared “upset,” but that he was not engaged in criminal activity and did not appear dangerous to himself or others. At a bench trial, A.A .was found guilty on both drug charges. He appealed. The Court of Appeals took the case.

The sole issue on appeal was whether the trial court mistakenly concluded Officer Escamilla’s search of  A.A. was reasonable under the Family Reconciliation Act (the Act) because A.A. was going to be transported to the CRC, a secure facility for juveniles, which requires a search of juveniles before admission.

The Court of Appeals decided that while an officer may lawfully conduct a pat-down search for weapons prior to transporting the youth, the officer may not conduct a full search.

The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit unreasonable searches and seizures.

The Court reasoned that Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution  prohibit unreasonable searches and seizures. Under these provisions, warrantless searches are “per se” unreasonable. However, a search incident to a lawful arrest is a recognized exception to the warrant requirement. The exception allows an officer to search an arrestee for weapons as a measure to protect the officer or to search for evidence that may be destroyed. The community caretaking function, which allows for limited searches when it is necessary for police officers to render emergency aid or assistance, is also a recognized exception to the warrant requirement. These types of searches are “divorced” from a criminal investigation. Finally, the State has the burden of proving the search was lawful.

The Court reasoned that here, the particular circumstances did not justify the search of A.A.’s pockets. Once the officer conducted the pat-down search and determined that A.A. did not have a weapon, the search should have stopped. A.A. had not committed a crime and, therefore, there was no need to preserve evidence of a crime. A.A. did not exhibit signs of dangerousness to himself or others. The only concern was for officer safety.

Finally, the Court reasoned that although A.A. would be transported to a detention facility with other minors, this facility “was a noncriminal protective custody situation, which requires us to accord maximum weight to A.A.’s privacy interest in evaluating the reasonableness of the search.”

The Court of Appeals reversed A.A.’s conviction.

My opinion? Excellent decision. The law was simple, and simply applied. The State failed to establish an exception to the warrant requirement. Period. Good decision.

 

State v. Weller: Community Caretaking

In State v. Weller, the WA Court of Appeals decided an officers’ entry into a garage to privately interview children about their allegations of abuse was lawful under the health and safety check community caretaking exception to the warrant requirement. Also, the seizure of the board the children stated was used by the parents while beating the children, was lawful under the plain view exception to the warrant requirement.

Sandra and Jeffrey Weller had six children in their care. In 2011, CPS became suspicious that the Wellers were abusing the children. Eventually, CPS conducted a welfare check of the family home with the assistance of numerous police officers. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children. Sandra stepped back from the door and the officers entered the house. The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.

Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers saw what appeared to be bloodstains on the board. Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence.

After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. At trial, the Wellers tried to suppress the evidence and dismiss the case on theories

The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime. However, the trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view.

The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of Assault Second Degree, one count of Unlawful Imprisonment, one count of Assault Third Degree of a child, and two counts of Assault Fourth Degree. The jury also found Sandra guilty on most counts and the trial court sentenced her for four counts of Assault Second Degree and one count of Unlawful Imprisonment. The defendants appealed.

The Wellers argue that the officers seized the board used to beat CW and CG in an unlawful warrantless search of their garage, and therefore that the trial court erred in denying their CrR 3. 6 motion to suppress the board. The Court disagreed, and held that the trial court did not err when it concluded that ( 1) the officers’ entry into the garage to privately interview the children was lawful under the community caretaking function exception to the warrant requirement, and (2) the seizure of the board was lawful under the plain view exception to the warrant requirement. Some background on these legal principles is necessary.

WARRANTLESS SEARCHES

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies. The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement.

 COMMUNITY CARETAKING

The community caretaking function exception to the warrant requirement arises from law enforcement officers’ community caretaking function and involves two aspects: officers rendering aid or assistance ( emergency aid exception) or making routine checks on health and safety (health and safety exception). Another exception to the warrant requirement is the plain view exception, which allows officers to seize an object if they are lawfully present in a constitutionally protected area and the object is in plain view.

A search pursuant to the community caretaking function exception must be totally divorced from  a criminal investigation. The exception does not apply where an officer’ s primary motivation is to search for evidence or make an arrest.

Here, the Court reasoned that the officers entered the garage because they were trying to find a private place to interview the children in conjunction with their welfare check. Nothing in the record suggests that the officers were searching the garage or looking for evidence.

HEALTH AND SAFETY CHECK INSPECTION

To invoke the health and safety check exception, the State must show that ( 1) the officer subjectively believed someone needed health or safety assistance, and (2) a reasonable person in the same situation would believe that there was a need for assistance, and ( 3) there was a reasonable basis to associate the need for assistance with the place searched. Next, the State must show that the encounter under this exception was reasonable, which depends upon a balancing of the individual’ s interest in freedom from police interference against the public’ s interest in having the police perform a community caretaking function.

Here, the Court reasoned that the three requirements for application of the health and safety check exception clearly were satisfied. The officers subjectively and reasonably believed that the Weller children needed health or safety assistance. A trained CPS investigator relayed to the officers her professional opinion that the Weller children were not safe and were expressing severe fear.

PLAIN VIEW

The ” plain view” exception to the warrant requirement applies when officers ( 1) have a valid justification for being in a constitutionally protected area, and ( 2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. The test for determining when an item is immediately apparent for purposes of a plain view seizure is whether, considering the surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Officers do not need to be certain that the item is associated with criminal activity – probable cause is sufficient.

Here, the Court decided the officers were lawfully present in the Wellers’ garage. Further, the surrounding facts and circumstances led the officers to believe that the board was evidence of a crime. As the welfare check progressed, the children said Mr. Weller periodically beat them with a board. Further, when the officers were in the garage, the children began to look for the board. And the children immediately confirmed that the board in the garage was in fact the board used to beat them. As a result, the Court held that the plain view exception to the warrant requirement applied to the officers’ seizure of the board.

The Court of Appeals upheld the convictions.