Category Archives: Constitutional Rights

Poll: 6 In 10 Black Americans Say Police Unfairly Stopped Them Or A Relative

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News article by Joe Neel  of NPR says that a new poll out this week finds that 60 percent of black Americans say they or a family member have been stopped or treated unfairly by police because they are black. In addition, 45 percent say they or a family member have been treated unfairly by the courts because they are black. The poll is a collaboration between NPR, the Robert Wood Johnson Foundation and the Harvard T.H. Chan School of Public Health.

The poll reveals the consequences of these stops for black Americans personally and across society — 31 percent of poll respondents say that fear of discrimination has led them to avoid calling the police when in need. And 61 percent say that where they live, police are more likely to use unnecessary force on a person who is black than on a white person in the same situation.

Previous polls have asked similar questions, but ours is unique in that it’s the first to ask about lifetime experiences with policing. It’s part of NPR’s ongoing series “You, Me and Them: Experiencing Discrimination in America.”

Pew Research poll in 2016 asked whether people had been unfairly stopped by police because of race or ethnicity in the previous 12 months and found that 18 percent of black people said yes. A 2015 CBS News/New York Times poll asked whether this had ever happened and found 41 percent of black people said yes.

Neel reports that the NPR poll differs from Pew in that NPR asked not only about a much longer period but also whether people had been unfairly stopped or treated because of their race or ethnicity. Also the NPR poll differ from CBS in that NPR included the word “unfairly.” Finally, the NPR poll differs from both the Pew and CBS polls because NPR asked whether a person or a family member had had this experience, which gives a better sense of the presence of these experiences in respondents’ life and surroundings.

Neel also reports that the black American data from our poll, released Tuesday, were compiled from 802 black Americans as part of a large national representative probability survey of 3,453 adults from Jan. 26 to April 9. The margin of error for the full black American sample is plus or minus 4.1 percentage points.

It is imperative to contact a competent attorney if you, a friend or family member were pulled over, searched and/or seized by police under suspicious circumstances. Please contact my office for a free consultation.

Excessive Tasing

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In Jones v. Las Vegas Metropolitan Police Dept., the Ninth Circuit Court of Appeals held that any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public. However, such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime.

BACKGROUND FACTS

In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his firearm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten didn’t believe deadly force was necessary because Jones hadn’t threatened him and didn’t appear to have a weapon.

As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones’s body to “lock up” and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones’s back in an attempt to handcuff Jones, keeping his taser pressed to Jones’s thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived. Backup consisted of four officers: Richard Fonbuena on Hatten’s right side, who helped handcuff Jones; Steven Skenandore, who controlled Jones’s legs and feet; Timothy English at Jones’s head, who applied a taser to Jones’s upper back; and Michael Johnson, who arrived last and ordered the tasing to stop. Johnson wanted his officers to “back off on the tasers so that Jones’s muscles would relax.” According to Johnson, Jones “didn’t look like he was physically resisting” and there were “enough officers” to take Jones into custody.

In all, Jones was subjected to taser shocks for over ninety seconds: Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen seconds—and, for ten of those seconds, English simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went limp. They sat him up but Jones was nonresponsive and twitching; his eyes were glazed over and rolled back into his head. The officers tried and failed to resuscitate him. Jones was pronounced dead shortly thereafter. The coroner’s report concluded that “police restraining procedures”—including the tasings—contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police Department and all of the officers involved in restraining Jones. They alleged Fourth and Fourteenth Amendment violations as well as various state law torts. However, the lower district court granted summary judgment for the defendants on all claims. The plaintiff’s appealed.

LEGAL ISSUE

Whether police officers are entitled to qualified immunity when they’re alleged to have caused the death of a suspect by using tasers repeatedly and simultaneously for an extended period.

COURT’S ANALYSIS & CONCLUSIONS

As a preliminary matter, the Court of Appeals held that under Fed. R. Civ. P. 17, the lower district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint.

Next, the Court of Appeals addressed the issue of whether the officers were reasonable in the degree of force they deployed. They held that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable and that a jury could reasonably conclude that the officers knew or should have known that these actions created a substantial risk of serious injury or death:

” . . . any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public.”

The Court also reasoned that that such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime. Furthermore, it reasoned that given that there was clearly established Fourth Amendment law and a jury could reasonably conclude that the officers used excessive force, the question of qualified immunity must proceed to trial.

Furthermore, the Court held that the plaintiff’s state law battery and negligence claims were triable, and should not have been dismissed by the lower district court. It said that while there was no evidence that any of the officers acted out of hostility or improper motive, there was a factual dispute as to whether the repeated and simultaneous tasings were so excessive under the circumstances that they amounted to willful or deliberate disregard of Jones’s rights. The Court of Appeals therefore remanded plaintiffs’ battery and negligence claims.

In a twist, however, The Court of Appeals affirmed the lower district court’s dismissal of the
Fourteenth Amendment claim. It said that even assuming all the facts Plaintiffs alleged, there was no evidence that the officers acted with a purpose of harming Jones that was unconnected to a legitimate law enforcement objective.

In another twist, the Court of Appeals held that the Plaintiffs’ false arrest and false imprisonment claims failed because there was no evidence that the decision to arrest Jones lacked justification, let alone that it was made in bad faith. The Court of Appeals therefore affirmed the dismissal of that claim.

My opinion? A well-reasoned, good decision. Although the Court of Appeals upheld the dismissal of some of the Plaintiffs’ claims due to lack of evidence, the Court was ultimately convinced that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable. Good decision.

Who Is The Toxicologist?

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In the deeply divided 5-4 court decision State v. Salgado-Mendoza, the WA Supreme Court held that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the toxicologist’s testimony under CrRLJ 8.3(b) even though the defendant was not informed which State toxicologist would testify.

I originally discussed this case in my blog titled, “Prosecutors Must Reveal Toxicologist Identities in DUI Trials.” At that time, the WA Court of Appeals Division II reversed the defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On appeal, however, the WA Supreme Court decided differently. It overturned the Court of Appeals and said the trial court, in fact, was correct in denying the defendant’s motion to suppress the toxicologist’s testimony.

BACKGROUND FACTS

On the evening of August 11, 2012, a Washington State Patrol trooper stopped and arrested Mr. Salgado-Mendoza for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Before trial, the State initially disclosed the names of nine toxicologists from the Washington State Patrol toxicology laboratory, indicating its intent to call “one of the following.” It whittled the list to three names the day before trial, but did not specify which toxicologist it would call until the morning of trial, noting that it provided the witness’s name “as soon as we had it and that’s all that we can do in terms of disclosure.”

Mendoza moved to suppress the toxicologist’s testimony under CrRLJ 8.3(b) based on
late disclosure, asking the court to “send a message to the state patrol crime lab and
say this isn’t okay anymore.” The trial court refused, finding no actual prejudice to the defense and observing that the practice of disclosing a list of available toxicologists rather than a specific witness was driven more by underfunding of the crime labs than by mismanagement.

Salgado-Mendoza appealed to the superior court, which found the district
court had abused its discretion. The Court of Appeals affirmed, reasoning that the
delayed disclosure violated the discovery rules and caused prejudice. Again, however, the WA Court of Appeals disagreed.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reasoned that while the State’s disclosure practice amounted to mismanagement within the meaning of CrRLJ 8.3(b), Salgado-Mendoza has not demonstrated actual prejudice to justify suppression.

The majority Court explained that under CrRLJ 8.3(b), the party seeking relief bears the burden of showing both misconduct and actual prejudice.

“In this case, Salgado-Mendoza can demonstrate misconduct within the meaning of the rule, but not actual prejudice. He can prove misconduct because a discovery violation need not be willful—simple mismanagement will suffice. Here, the State’s failure to at least narrow the list of possible toxicology witnesses pretrial reflects mismanagement,” said the Court. “However, Salgado-Mendoza cannot show prejudice that wan’ants complete suppression of the toxicologist’s testimony.”

With that, the WA Supreme Court held that Mr. Mendoza has not demonstrated actual prejudice to justify suppression of the toxicologist’s testimony. “Because there was no abuse of discretion, we reverse the Court of Appeals.”

THE DISSENT

Justice Madsen authored the dissenting opinion. She was joined by Justices Yu, Gordon McCloud and Johnson.

In short, the dissenting judges disagreed with the majority because they believed the defendant was prejudiced by this delayed disclosure of the possible toxicologists who would testify. They reasoned that forcing a defendant to bear the burden of preparing to cross-examine a long list of witnesses when the State only intends to call one is not how our system of justice operates.

“The State cannot cite funding deficiencies and simply shift its burden of prosecution onto defense counsel,” wrote Judge Madsen. “If the State wishes to pursue prosecution, it must allocate sufficient resources to its departments so that they may operate in a way that is consistent with a defendant’s right to a fair trial.”

“By under-staffing the State’s toxicology laboratory so that they cannot confirm who will testify until the day of trial, the State is not meeting this burden and defendants are being forced to compensate for the deficiency. Therefore, I would find that the trial court abused its discretion by denying Salgado-Mendoza’s motion to suppress the toxicologist’s testimony.”

My opinion? I must agree with the dissenting opinion. Under the Sixth Amendment and the WA Constitution, The State bears the burden of proving their charges beyond a reasonable doubt. Also, the State must follow discovery rules under CrR 4.7. One of the State’s discovery obligations is to name their witnesses who they call to testify. Period. Collateral issues revolving around the State’s under-staffing and a lack of funding should not excuse violating a defendant’s Constitutional rights.

Don’t Search My Tent!

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

BACKGROUND

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

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

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

COURT’S ANALYSIS AND CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

‘Sanctuary’ Cities Targeted by ICE in Immigration Raids

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let’s see what happens . . .

Visions of Freedom

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In her article titled Visions of Freedom, author Hanna Kozlowska discusses  a New York art exhibit where artists capture the artistic requests of inmates held in solitary confinement.

The project “Photo Requests from Solitary” offers inmates held in solitary confinement a chance to ask for any image that they want, and to get their request fulfilled by professional photographers, artists. The inmates’ ideas range from the mundane to the elaborate—from a simple photo of a frog in its natural habitat, to an imaginary scene where a black man dramatically unshackles.

According to Kozlowska, the exhibition opened Sept. 13 as part of Photoville, a photography festival in New York’s Brooklyn Bridge Park. Viewers see the requests and the photos alike. It’s meant to raise awareness about solitary confinement, as a movement to abolish isolation in New York prisons is gaining ground. Meanwhile, the photos, sent to inmates in their cells, provide them some form of relief in conditions of extreme sensory deprivation and isolation proven to be psychologically damaging.

“The idea is that human imagination can survive even this,” said Jean Casella co-director of the watchdog group Solitary Watch. “When you ask people what they want to see, there’s never any shortage of images or fantasies… Part of the message of this show is that you can’t take that away, no matter what you do.” The exhibit also shows the inmate’s detailed requests, which the organizers say are just as powerful, if not more moving to the viewer.

The project started in 2009, within a group working to shut down the notorious Tamms Correctional Center, a super-max prison in Illinois. The inmates were strictly isolated from each other and the outside world, says Laurie Jo Reynolds, an artist and activist.

When discussing a poetry exchange with inmates, someone asked if they could send the prisoners photos. But with each photo sent, the inmate would have to give up one of their own. Reynolds asked: “Why not ask them what they want?”

Tamms was shut down in 2013, and the project was expanded to other states. The Brooklyn exhibition shows requests and photos from New York.

Over the years, certain categories emerged in what the inmates wanted to see in their cells. “I think those categories are useful in thinking about the experience of being in prison,” Reynolds says.

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My opinion? It’s a wonderful idea. Legally speaking, there’s strong debate that solitary confinement is “cruel and unusual punishment” prohibited by the Eighth Amendment to the Constitution. Cruel and unusual punishment includes torture, deliberately degrading punishment, or punishment that is too severe for the crime committed.

Artistically speaking, inspiration can come from many places. Dark and lonely places; even, where people are forgotten, downtrodden, separated from families and their aspirations destroyed by their choices and terrible circumstances. What do prisoners think about when placed in solitary confinement? What does one dream and yearn for? These visions of freedom are powerful indeed.

Dealing in Depictions

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In State v. Gray, the WA Supreme Court decided that the Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct statute allows the State to prosecute a minor for taking and distributing a sexually explicit photo of himself.
BACKGROUND FACTS
When he was 17 years old, Eric D. Gray electronically sent an unsolicited picture of his erect penis to an adult woman. The woman contacted the police, and Gray was charged with and convicted of one count of Second Degree Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct under ROW 9.68A.050. It also charged him with one count of Telephone Harassment under RCW 9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the trial court denied.
In a stipulated facts trial, the court found Gray guilty of the second degree dealing in depictions of a minor charge. The State agreed to dismiss the telephone harassment charge and chose not to charge him with two counts of misdemeanor indecent exposure stemming from an unrelated incident. He was sentenced to 150 hours of community service, 30 days of confinement, and fees, before being released with credit for time served. He was ordered to register as a sex offender.
Mr. Gray appealed to Division Three of the Court of Appeals, which affirmed his adjudication. He appealed again, this time to the Washington Supreme Court, claiming the plain language of the statute does not anticipate minors who take and transmit sexually explicit images of themselves. The American Civil Liberties Union of Washington, the Juvenile Law Center, Columbia Legal Services, and TeamChild subsequently filed a joint brief as amicus curiae, or “friend of the court”.
ISSUES
1. Does RCW 9.68A.050 allow the State to prosecute a minor for taking and distributing a sexually explicit photo of himself?
2. Is RCW 9.68A.050 impermissibly overbroad or vague in violation of the federal or state constitutions?
COURT’S ANALYSIS AND CONCLUSIONS
The WA Supreme Court reasoned that the plain language of the statute prohibits transmitting sexually explicit images of a minor even if the minor himself sent it:
“Under this statute, the State properly charged Gray for his actions. When he was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person. Gray is a “natural person” and therefore a person for purposes of the statute. He was also under the age of 18, making him a minor under the statute as well. He stated he was attracted to T.R., and when he sent the picture he included the phrase “Do u like it, babe?,” indicating an attempt to arouse the recipient. The picture he transmitted was, therefore, a visual depiction of a minor engaged in sexually explicit conduct because it was a picture of a minor’s genitals designed to sexually stimulate the viewer. This falls squarely within the statute’s plain meaning.”
The Court also reasoned that the statute here is unambiguous. A “person” is any person, including a minor. “Images of a ‘minor’ are images of any minor,” reasoned the Court. It elaborated that nothing in the statute indicates that the “person” and the “minor” are necessarily different entities. Therefore, the photographer or distributor may also be the minor in the photograph. “Because of this, Gray was properly charged with taking and disseminating sexually explicit images of a minor,” said the Court.
Furthermore, the Court reasoned that the Legislature’s findings support the Court’s plain reading of the statute. “The legislature intended to destroy the blight of child pornography everywhere, from production of the images to commercial gain,” said the Court. “Because the statute was intended to curtail production of child pornography at all levels in the distribution chain, the statute prohibits Gray’s actions.”
Finally, the Court reasoned that the statute is neither unconstitutionally overbroad nor unconstitutionally vague. First, it does not invite arbitrary and discriminatory enforcement. Despite Gray’s arguments, the Court reasoned that the State is vested with great discretion in determining how and when to file criminal charges. Here, Gray presents no evidence the State made the choice to charge Gray for an arbitrary or discriminatory purpose.
Second, the wording of the statute allows a reasonable person to understand what conduct is prohibited. “It states that ‘a person’ will be guilty if they transmit sexually explicit images of ‘a minor,’ said the Court. “On its face, this includes any person, even a minor taking a picture of himself. Our responsibility is to interpret the law, not to write it, and here the law is clear.”
With that, the WA Supreme Court voted 6-3 to affirm the Court of Appeals and upheld Gray’s conviction.
THE DISSENT
Justice McCloud authored the dissenting opinion. He reasoned that RCW 9.68A.050 is designed to tackle a significant problem: trafficking in sexual depictions of children. Furthermore, the statute tackles that problem with severe criminal penalties for the traffickers but protection for the depicted children.

“There is a long-standing and well-accepted rule that when a legislature enacts a criminal law to protect such a specific class, we cannot interpret that law to permit prosecution (and potential revictimization) of members of that protected class for their own exploitation—unless the legislature explicitly says so. The legislature did not say so here. Hence, the general rule applies,” said Justice McCloud. “Gray, the depicted minor, cannot be prosecuted under this statute for disseminating pictures of himself.”

Random UA’s & Privacy

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In State v. Olsen, the WA Supreme Court held that although random urinalysis tests (UAs) do implicate the privacy interests of a defendant who is on probation (probationer), the testing does not violate the defendant’s Constitutional rights if the UAs purpose was to  monitor compliance with a valid probation condition requiring the defendant to refrain from drug and alcohol consumption.

BACKGROUND FACTS

The facts are undisputed. In June 2014, defendant Brittanie Olsen pleaded guilty in Jefferson County District Court to one count of DUI, a gross misdemeanor offense under RCW 46.61.502. The court imposed a sentence of 364 days of confinement with 334 days suspended. As a condition of her suspended sentence, the court ordered that Olsen not consume alcohol, marijuana, or non prescribed drugs. Over defense objection, the court also required Olsen to submit to “random urine analysis screens … to ensure compliance with conditions regarding the consumption of alcohol and controlled substances.”

Olsen appealed to Jefferson County Superior Court, arguing that the random UAs requirement violated her privacy rights under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. She contended a warrantless search of a misdemeanant probationer may not be random but instead “must be supported by a well-founded suspicion that the probationer has violated a condition of her sentence.” The court agreed, vacated Olsen’s sentence, and remanded to the district court for resentencing without the requirement that Olsen submit to random urine tests.

The State appealed, and the Court of Appeals reversed, holding that “offenders on probation for DUI convictions do not have a privacy interest in preventing the random collection and testing of their urine when used to ensure compliance with a probation condition prohibiting the consumption of alcohol, marijuana, and/or non prescribed drugs.

ISSUE

The WA Supreme Court addressed the issue of whether random UAs ordered to monitor compliance with a valid probation condition not to consume drugs or alcohol violate a DUI probationer’s privacy interests under article I, section 7 of the Washington Constitution.

COURT’S CONCLUSIONS & ANALYSIS

The Supreme Court held that the random UAs here were conducted with “authority of law” under article I, section 7 of our state constitution. Furthermore, although random UAs of DUI probationers do implicate privacy interests, the UAs here are narrowly tailored and imposed to monitor compliance with a valid probation conditions.

The Court reasoned that The Washington State Constitution says that no person shall be disturbed in his private affairs, or his home invaded, without authority of law. One area of increased protection is the collection and testing of urine.

“Compared to the federal courts, we offer heightened protection for bodily functions,” said the Court. It elaborated that our courts have generally held that for ordinary citizens, suspicionless urinalysis testing constitutes a disturbance of one’s private affairs that, absent authority of law, violates the WA Constitution.

“On the other hand, we have repeatedly upheld blood or urine tests of prisoners, probationers, and parolees of some cases without explicitly conducting an analysis under the WA Constitution,” said the Court. It elaborated that two questions must be answered in cases like this: (1) whether the contested state action disturbed a person’s private affairs and, if so, (2) whether the action was undertaken with authority of law.

a. UAs Implicate a DUI Probationer’s Privacy Interests.

“We have consistently held that the nonconsensual removal of bodily fluids implicates privacy interests,” said the Court. It further stated that UAs implicate privacy interests in two ways. First, the act of providing a urine sample is fundamentally intrusive. This is particularly true where urine samples are collected under observation to ensure compliance. Second, chemical analysis of urine, like that of blood, can reveal a host of private medical facts about a person, including whether he or she is epileptic, pregnant, or diabetic. “These privacy interests are precisely what article I, section 7 is meant to protect.”

However, the Court also said that probationers do not enjoy constitutional privacy protection to the same degree as other citizens.

“Probationers have a reduced expectation of privacy because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls,” said the Court.  Therefore, the State may supervise and scrutinize a probationer more closely than it may other citizens. “However, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.”

The Court then addressed the State’s argument that UAs do not implicate Olsen’s privacy interests because probationers lack any privacy interest in their urine.

“We disagree,” said the Court. “Even though misdemeanant probationers have a reduced expectation of privacy, this does not mean that they have no privacy rights at all in their bodily fluids.” After giving a detailed analysis under the precedent of State v. Surge, the Court summarized that, even though probationers do not enjoy the same expectation of
privacy as other citizens, the UAs here still implicate their reduced privacy
interests under the WA Constitution.

b. Random UAs of DUI Probationers Do Not Violate the WA Constitution Because They Are Conducted with Authority of Law.

Next, the Court addressed whether the UA was performed with authority of law. In short, the Court decided that issue in the affirmative. It said the State has a strong interest in supervising DUI probationers in order to promote rehabilitation and protect the public, and elaborated that probation is simply one point (or, more accurately, one set of points) on a continuum of possible punishments.

It elaborated that probation is not a right, but an act of judicial grace or lenience motivated in part by the hope that the offender will become rehabilitated. To that end, a sentencing court has great discretion to impose conditions and restrictions of probation to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer’s being at large.

“As such, the State has a compelling interest in closely monitoring probationers in order to promote their rehabilitation,” said the Court. “As probation officers’ role is rehabilitative rather than punitive in nature, they must, then, have tools at their disposal in order to accurately assess whether rehabilitation is taking place.” Here, in the case of DUI probationers, the Court reasoned that monitoring and supervision ensure that treatment is taking place and serve to protect the public in the case that a probationer fails to comply with court-imposed conditions.

The court further reasoned that random UAs are narrowly tailored to monitor compliance with probation conditions, they are an effective monitoring tool and they are a permissible under these circumstances:

“Unannounced testing is, arguably, crucial if a court is to impose drug testing at all. Random testing seeks to deter the probationer from consuming drugs or alcohol by putting her on notice that drug use can be discovered at any time. It also promotes rehabilitation and accountability by providing the probation officer with a ‘practical mechanism to determine whether rehabilitation is indeed taking place.'”

Finally, the WA Supreme Court reasoned that random UAs, under certain circumstances, are a constitutionally permissible form of close scrutiny of DUI probationers. It found that
the testing here was a narrowly tailored monitoring tool imposed pursuant to a valid prohibition on drug and alcohol use. Random UAs are also directly related to a probationer’s rehabilitation and supervision.

With that, the Court concluded  that the random UAs here were conducted with “authority of law” under article I, section 7 of our state constitution and affirmed the Court of Appeals decision to invoke them.

Immigrants Make Up 22% of Federal Prison Population

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 of The Washington Times claims that a stunning 22 percent of the federal prison population is immigrants who have either already been deemed to be in the country illegally or who the government is looking to put in deportation proceedings, the administration said Tuesday.

President Trump requested the numbers as part of his initial immigration executive orders. The 22 percent is much higher than the population of foreign-born in the U.S. as a whole, which is about 13.5 percent.

All told, the government counted more than 42,000 aliens in federal prisons as of June 24. About 47 percent already face final deportation orders, making them illegal immigrants, and 3 percent are currently in immigration courts facing deportation proceedings.

Almost all of the rest are being probed by federal agents looking to deport them.

Immigrants who commit serious crimes, even if they once had legal status, can have that status revoked and can be subject to deportation, which explains the high number of cases where an alien is still being probed by U.S. Immigration and Customs Enforcement.

The U.S. Marshal Service, meanwhile, is holding about 12,000 “self-reporting” aliens, and almost all of them have already been ordered deported.

Government officials said they’re still trying to collect information on the foreign-born population in state and local prisons and jails.

“Furtive Movements”

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In State v. Weyand, the WA Supreme Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. Walking quickly while looking up and down the street at 2:40 a.m. is an innocuous act, which cannot justify intruding into people’s private affairs.

BACKGROUND FACTS

On December 22, 2012, at 2:40 in the morning, Corporal Bryce Henry saw a car parked near 95 Cullum Avenue in Richland, Washington, that had not been there 20 minutes prior. The area is known for extensive drug history. Corporal Henry did not recognize the car and ran the license plate through an I/LEADS (Intergraph Law Enforcement Automated System) database. However, that license plate search revealed nothing of consequence about the vehicle or its registered owner.

After parking his car, Corporal Henry saw Weyand and another male leave 95 Cullum. As the men walked quickly toward the car, they looked up and down the street. The driver looked around once more before getting into the car. Weyand got into the passenger seat. Based on these observations and Corporal Henry’s knowledge of the extensive drug history at 95 Cullum, he conducted a Terry stop of the car.

After stopping Weyand, Corporal Henry observed that Weyand’s eyes were red and glassy and his pupils were constricted. Corporal Henry is a drug recognition expert and believed that Weyand was under the influence of a narcotic. When Corporal Henry ran Weyand’ s name, he discovered an outstanding warrant and arrested Weyand. Corporal Henry searched Weyand incident to that arrest and found a capped syringe. Corporal Henry advised Weyand of his Miranda3 rights, and Weyand admitted that the substance in the syringe was heroin that he had bought from a resident inside 95 Cullum.

PROCEDURAL HISTORY

The State charged Weyand with one count of unlawful possession of a controlled substance. Weyand moved to suppress all evidence and statements under Criminal Rules (CrR) 3.5 and 3.6 and to dismiss the case against him. Weyand argued that the officer did not have sufficient individualized suspicion to conduct the investigatory stop.

After the hearing, the court concluded that the seizure was a lawful investigative stop. According to the court, Corporal Henry had reasonable suspicion to believe that Weyand was involved in criminal activity. The court found Weyand’s case distinct from State v. Doughty, because in this case there was actual evidence of drug activity at, as well as known drug users frequenting, 95 Cullum.

The court additionally found that Weyand knowingly, intelligently, and voluntarily waived his Miranda rights; thus, all post-Miranda statements were admissible at trial. Weyand waived his right to a jury trial and agreed to submit the case to a stipulated facts trial. Finding that Weyand possessed a loaded syringe that contained heroin, the court found Weyand guilty of unlawful possession of a controlled substance.

Weyand appealed, and the Court of Appeals affirmed the conviction. It reasoned that the totality of the circumstances, coupled with the officer’s training and experience, showed that the officer had a reasonable, articulable suspicion that justified the stop. Those circumstances included “the long history of drug activity at 95 Cullum, the time of night, the 20 minute stop at the house, the brisk walking, and the glances up and down the street.”

LEGAL ISSUE

Whether the specific facts that led to the Terry stop would lead an objective person to form a reasonable suspicion that Weyand was engaged in criminal activity.

COURT’S ANALYSIS & CONCLUSIONS

The Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. It reasoned that under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an officer generally may not seize a person without a warrant. There are, however, a few carefully drawn exceptions to the warrant requirement. The State bears the burden to show that a warrantless search or seizure falls into one of the narrowly drawn exceptions.

One of these exceptions is the Terry investigative stop. The Terry exception allows an officer to briefly detain a person for questioning, without a warrant, if the officer has reasonable suspicion that the person is or is about to be engaged in criminal activity. An officer may also briefly frisk the person if the officer has reasonable safety concerns to justify the protective frisk.

The Court found that the totality of the circumstances did not justify a warrantless seizure. It reasoned that in order 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. To evaluate the reasonableness of the officer’s suspicion, Courts look at the totality of the circumstances known to the officer. The totality of circumstances includes the officer’s training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s liberty. The suspicion must be individualized to the person being stopped.

“Here, the trial court’s decision rested primarily on evidence that 95 Cullum was a
known drug location,” said the Court. “However, Corporal Henry did not observe current activity that would lead a reasonable observer to believe that criminal activity was taking place or about to take place in the residence.”

Furtive Movements

Also, the Court reasoned that reliance on ‘furtive movements’ as the basis for a Terry stop can be problematic. “Case law has not precisely defined such movements, and courts too often accept the label without questioning the breadth of the term.” It explained that ‘furtive movements’ are vague generalizations of what might be perceived as suspicious activity which does not provide a legal ( or factual) basis for a Terry stop.”

The Court quoted Judge Richard Posner in recognizing that “furtive movements,” standing alone, are a vague and unreliable indicator of criminality:

“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”

With that, the WA Supreme Court reasoned that simply labeling a suspect’s action a “furtive movement,” without explaining how it gives rise to a reasonable and articulable suspicion, is not sufficient to justify a Terry stop. Furthermore, reasoned the Court, police cannot justify a suspicion of criminal conduct based only on a person’s location in a high crime area:

“It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation.”

Consequently, the WA Supreme Court reversed the Court of Appeals and hold that walking quickly and looking around, even after leaving a house with extensive drug history at 2:40 in the morning, is not enough to create a reasonable, articulable suspicion of criminal activity justifying a Terry stop.

My opinion? Excellent decision. I’m very impressed the Court addressed the term “furtive movements” and put it in perspective. Law enforcement officers regularly use this catch-phrase to describe suspicious behavior allowing them stop/search/seize people. Although officer safety is a primary concern and a very good reason to search people who are already in police custody and making “furtive movements” in the presence of officers, it cannot be a basis for stopping and searching people who are simply going about their business walking down the street. Great decision.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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

117 North 1st Street
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Mount Vernon, WA 98273

Phone: (360) 746-2642
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