Category Archives: Drug Offenses

Pot Convictions Pardoned

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People seeking a pardon can apply by filling out a simple petition form on the governor’s office’s website.

The new pardon process will allow applicants to skip the usual step of making a request to the state’s Clemency and Pardons Board, which typically reviews requests and makes recommendations to the governor, said Tip Wonhoff, the governor’s deputy general counsel.

For people granted pardons, the governor’s office will ask the State Patrol to remove those convictions from the criminal-history reports that are available to the public, though the records will remain available to law enforcement, according to a summary of the pardon plan provided by the governor’s office. Records also will remain in court files unless petitioners successfully petition to have them vacated by the court that imposed the sentence.

The pardon announcement comes amid Inslee’s well-publicized explorations of a 2020 presidential run. While relatively unknown in the field of potential Democratic contenders, Inslee has formed a federal political-action committee and garnered attention for making climate change the centerpiece of his potential national campaign.

Inslee’s advisers said he supports more sweeping legislation that would allow anyone with a misdemeanor adult marijuana-possession conviction to have it removed from their records.

A bill proposed in 2017 by Rep. Joe Fitzgibbon, D-Burien, would require sentencing courts to grant any person’s request to vacate such convictions. The proposal received a hearing but did not advance in the Legislature.

The city of Seattle has taken action to expunge old marijuana records. After a request by City Attorney Pete Holmes, Seattle Municipal Court judges last year moved to vacate convictions and dismiss charges for as many as 542 people prosecuted for marijuana possession between 1996 and 2010, when Holmes’ office ceased prosecuting marijuana possession.

My opinion? Kudos for Governor Inslee for making a bold step in the right direction. Washington has moved beyond prosecuting people for minor marijuana offenses. It seems right to vacate criminal convictions for these same offenses.

Please contact my office if you, a friend or family member face drug charges. Being convicted can limit career, housing and travel opportunities. Hiring qualified counsel is the first step toward gaining justice.

“School Search” Held Unconstitutional

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In State v. A.S., the WA Court of Appeals held that drugs found in a 14-year-old child’s backpack in a search conducted by the vice-principal were rightfully suppressed because the search was not reasonable when the child (1) was not a student of the school, (2) the vice principal knew nothing about the child’s history or school record, (3) there was no record of a drug problem at the school, and (4) there was no exigent circumstance to conduct the search as police officers were already on their way to the school.

BACKGROUND FACTS

On April 11, 2016, Meadowdale High School staff received information about an alleged threat involving then 14-year-old A.S., who was not a Meadowdale student. Meadowdale staff looked up A.S.’s picture using the district’s computer system so that they would be able to identify her should she appear on campus.

Later that day, the Vice-Principal of Meadowdale summonsed A.S. to his office, and later, the Principal’s office. A.S. was not very cooperative with being questioned.

At some point while A.S. was in Kniseley’s office, the Vice-Principal noticed an odor that he recognized as marijuana emanating from A.S. The Vice-Principal then searched A.S.’s backpack, which was sitting next to her, and found suspected marijuana and drug paraphernalia. A.S. did not say or do anything to resist the search of her backpack.

A.S. was later charged with possession of drug paraphernalia and possession of a controlled substance. Prior to trial, A.S. moved to suppress the evidence of the suspected marijuana and drug paraphernalia found in her backpack, arguing that the evidence was the fruit of an unlawful search and seizure. Specifically, A.S. argued that the “school search exception” to the warrant requirement did not apply to her because she was not a Meadowdale student when the Vice-Principal searched her backpack and even if the exception did apply, the search was not reasonable.

The trial court denied A.S.’s motion and, following a stipulated bench trial, convicted A.S. of both possession of drug paraphernalia and possession of a controlled substance. A.S. appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under both the Washington Constitution and U.S. Constitution, a government actor must obtain a search warrant supported by probable cause to conduct a search unless an exception applies. Under pre-existing case-law, the exceptions to the warrant requirement are “‘jealously and carefully drawn.”

School Search Exception

One of these exceptions is the “school search exception,” which allows school authorities to conduct a search of a student without probable cause if the search is reasonable under all the circumstances. A search is reasonable if it is: (1) justified at its inception; and (2) reasonably related in scope to the circumstances that justified the interference in the first place.

The Court further reasoned that under ordinary circumstances, a search of a student by a teacher or other school official will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. And, a search will be permitted in scope “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Finally, Washington courts have established the following factors from State v. Brooks and State v. McKinnon as relevant in determining whether school officials had reasonable grounds for conducting a warrantless search:

“The child’s age, history, and school record, the prevalence and seriousness of the problem in the school to which the search was directed, the exigency to make the search without delay, and the probative value and reliability of the information used as a justification for the search.”

Here,  the search was unconstitutional.

First, A.S. was not a student of the school and the Vice-Principal knew nothing about the child’s history or school record. Specifically, nothing in the record suggests that the Vice-Principal, who guessed that A.S. was middle school aged, knew anything about A.S.’s history or school record. Indeed, the Vice-Principal testified that when he looked up A.S. in the district database, he was only interested in her picture.

Furthermore, there was no evidence that drug use was a drug problem at Meadowdale. Rather, when asked whether Meadowdale had a drug problem, the Vice-Principal responded, “I don’t believe so.” He also testified that he did not deal with drugs on a regular basis as a school administrator and that Meadowdale had only “occasional incidents” on its campus involving students bringing drugs or drug paraphernalia on campus.

Additionally, there was no exigency to conduct the search without delay, given that the police had been called, and A.S.—who had been told that the police were called—gave no indication that she was trying to leave the principal’s office.

And finally, the odor of marijuana alone did not create an exigent circumstance, particularly where the Vice-Principal had no other reason to believe that A.S. used marijuana or that her backpack would contain marijuana. For these same reasons, the search of A.S.’s backpack was not justified at its inception.

My opinion? Good decision. In an educational context, school officials have a substantial interest in maintaining discipline and order on school grounds. However, the search conducted in this case did not promote that interest.

Please contact my office if you, a friend or family member are charged with a crime involving a questionable search by the authorities. Hiring a competent, experienced and knowledgeable defense attorney is the first step toward gaining justice.

Fentanyl Is the Deadliest Drug

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Excellent article by  of USA Today discussed a recent report from the from the Centers for Disease Control and Prevention finding that Fentanyl is now the deadliest drug in America, with more than 18,000 overdose deaths in 2016, the most recent year for which statistics are available.

It’s the first time the synthetic opioid has been the nation’s deadliest drug. From 2012 to 2015, heroin topped the list.

For those who don’t know, fentanyl is a synthetic opioid that is 80-100 times stronger than morphine. Pharmaceutical fentanyl was developed for pain management treatment of cancer patients, applied in a patch on the skin. Because of its powerful opioid properties, Fentanyl is also diverted for abuse. Fentanyl is added to heroin to increase its potency, or be disguised as highly potent heroin. Many users believe that they are purchasing heroin and actually don’t know that they are purchasing fentanyl – which often results in overdose deaths.

On average, in each year from 2013 to 2016, the rate of overdose deaths from Fentanyl increased by about 113 percent  a year.  The report said fentanyl was responsible for 29 percent of all overdose deaths in 2016, up from just 4 percent in 2011.

Overall, more than 63,000 Americans died of drug overdoses in 2016, according to the report, which was prepared by the National Center for Health Statistics, part of the U.S. Centers for Disease Control and Prevention.  That’s an average of 174 deaths  a day.

The study also said many people who die from overdoses have multiple drugs in their system. “We’ve had a tendency to think of these drugs in isolation,” Dr. Holly Hedegaard, lead author of the report, told HuffPost. “It’s not really what’s happening.”

As an example, roughly 40 percent of people listed as dying of a cocaine overdose also had fentanyl in their system.

After fentanyl, heroin, cocaine and methamphetamine were the deadliest drugs in 2016. After declines earlier in the decade, the report said, overdose deaths from both cocaine and methamphetamine were starting to rise again.

The study said illegal drugs such as fentanyl and heroin were the primary causes of unintentional overdoses, while prescription drugs such as oxycodone tended to be used in suicide overdoses.

Drug abuse is terribly destructive and deeply affects addicts, families and society. However, please contact my office if you, a friend or family members are charged with a drug crime. The Fourth Amendment guarantees the right against unlawful search and seizure. Perhaps some well-argued pretrial motions can become part of an aggressive defense against pending drug charges.

Shackled in Court

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In State v. Lundstrom, the WA Court of Appeals held that a trial court’s failure to state why a jailed defendant must wear shackles, handcuffs and other restraints to court violates a defendant’s due process rights.

BACKGROUND FACTS

The State charged Lundstrom with two counts of unlawful possession of a controlled
substance. At a pretrial hearing, Lundstrom appeared in restraints. Before the proceeding ended, defense counsel took exception to Mr. Lundstrom appearing in court with 5-point restraint shackles.

The trial court did not respond to defense counsel’s statement or concerns.

Lundstrom subsequently filed a motion objecting to the restraints and requesting removal of the shackles. The motion included a certified statement from defense counsel, which stated that he had made a public disclosure request with the Clallam County Sheriff’s Office (CCSO) for their policies and discovered that CCSO policy 15.106.1 required all inmates to be brought to court in full restraints (waist chain, cuffs, and leg irons) for their first appearance. There is no record showing whether Lundstrom noted the motion for hearing before the trial court, whether the trial court held a hearing on the motion, or whether the trial court ruled on the motion. Ultimately, however, Lundstrom pleaded guilty to two counts of unlawful possession of a controlled substance.

On appeal, Lundstrom argued that his pretrial restraint violated his due process rights because the trial court failed to make an individualized determination on the necessity of the restraints.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals agreed with Mr. Lundstrom.

It reasoned that under the  WA Constitution, the accused shall have the right to appear and defend in person. That right includes the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Additionally, under State v. Damon, the Washington Supreme Court has long recognized that a prisoner is entitled to be brought into the presence of the court free from restraints.

“Restraints are disfavored because they may interfere with important constitutional rights, including the presumption of innocence, privilege of testifying in one’s own behalf, and right to consult with counsel during trial.”

“But a defendant’s right to be in court free from restraints is not limitless,” said the Court of Appeals. “The right may yield to courtroom safety, security, and decorum. A defendant may be restrained if necessary to prevent injury, disorderly conduct, or escape.”

Furthermore, the trial court abused its discretion and committed constitutional error when it failed to address the issue of Lundstrom’s pretrial restraint. By failing to do so and allowing Lundstrom to be restrained, the trial court failed to exercise its discretion and effectively deferred the decision to the jail’s policy. As a result, the trial court abused its discretion and committed constitutional error by failing to make an individualized inquiry into the necessity for pretrial restraints when Lundstrom took exception to the use of pretrial restraints. Therefore, Lundstrom’s due process rights were violated by his pretrial restraints.

Interestingly, Lundstrom was not trying to overturn his conviction or seek any other remedy due to the violation of his due process rights. He only wanted the Court of Appeals to address his claim as a matter of continuing and substantial public interest.

“Generally, we do not consider claims that are moot or present only abstract questions,” said the Court of Appeals. However, we have the discretion to decide an issue if the question is one of continuing and substantial public interest.”

My opinion? Good decision. It’s harsh to see defendants in handcuffs and chains. Indeed, it’s unconstitutional. And for the most part, shackling defendants at court hearings is unnecessary unless there’s reason to believe the defendant may escape or harm others.

Please contact my office if you, a friend or family member face criminal charges.

Courtroom Disruptions

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In State v. Davis, the WA Court of Appeals held that a defendant’s Sixth Amendment right to question witnesses at trial was violated when the defendant was removed for being disruptive.

FACTUAL BACKGROUND

On January 23, 2014, a King County Sheriff’s deputy arrested Davis for possession of a stolen Hyundai vehicle.

Two and a half weeks later, on February 11,2014, a Federal Way Police Department officer observed a Buick parked near a park-and-ride and saw Davis standing outside the car, making furtive movements. As Davis got into the car to drive away, the officer recorded the license plate. The owner had reported the vehicle as stolen. the officer then initiated a traffic stop and arrested Davis for possession of a stolen vehicle — the Buick. A search of Davis recovered crack cocaine in his shirt pocket.

On May 19, 2014, the State charged Davis with two counts of possession of a stolen vehicle, and one count of possession of a controlled substance.

Davis motioned for standby counsel – an attorney who is appointed to assist a client who has invoked his/her right to self-representation – at numerous times throughout his pretrial proceedings. His requests were denied each time.  The court stated Davis must choose between having counsel and representing himself. Davis chose to proceed without a lawyer. The case proceeded to trial.

During trial, the The State Prosecutor attempted to continue its examination of a police officer, but Davis repeatedly interrupted to make comments about the water. The trial court temporarily retired the jury. A heated discussion took place to include the following:

THE COURT: Screaming at the top of his lungs, the jury–
THE DEFENDANT: And I’m going to continue to scream. Where’s my fucking water?
(Defendant screaming simultaneously with court)
THE COURT: I need to proceed with the trial, and I am finding that he is voluntarily absenting himself from the rest of these proceedings under State v. Garza, G-A-R-Z-A, and the record should reflect that he continues to speak on top of his lungs, swearing, accusing me of all kinds of things.
THE DEFENDANT: You’re being an asshole, and I can be one, too.
THE COURT: You’re now removed from the court.
THE DEFENDANT: Good. And fuck you very much, asshole. Fuck this kangaroo court shit.

At this point, it was after three o’clock in the afternoon. In Davis’s absence, the State continued questioning a police officer who testified as to finding crack cocaine in Davis’s pocket. The State then examined the police officer who had identified the stolen Buick, initiated the traffic stop, and arrested Davis.

The court did not give Davis an opportunity to cross-examine either officer.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals ruled that although (1) Davis did not have a right to standby counsel, and (2) the court properly removed him,  it nevertheless violated his Sixth Amendment right to representation by allowing the State to examine two of its witnesses in his absence and not affording him an opportunity to cross examine the witnesses.

The court reasoned that Davis went unrepresented during the testimony of police officers and was not given the opportunity to cross-examine them.

“He did not knowingly and voluntarily waive his right to representation and agree to have an empty defense table while the State questioned two critical witnesses.”

“This remains the case despite his decision to represent himself,” reasoned the Court of Appeals. “As reflected above, cases from other jurisdictions support this conclusion. We are unaware of authority supporting a contrary result.” Accordingly, the Court of Appeals concluded that leaving Davis without representation at trial violated his Sixth Amendment right to representation and remanded for a new trial.

Please contact my office if you, a friend or family member are charged with a crime. Representing yourself is rarely a good idea.

Racial Profiling of Latinos in LA County

Excellent article by Joel Rubin and Ben Poston of the LA Times examines a disturbing trend. Apparently, more than two-thirds of the drivers pulled over by the Domestic Highway Enforcement Team were Latino, according to a Times analysis of Sheriff’s Department data. And sheriff’s deputies searched the vehicles of more than 3,500 drivers who turned out to have no drugs or other illegal items, the analysis found. The overwhelming majority of those were Latino.

Several of the team’s big drug busts have been dismissed in federal court as the credibility of some deputies came under fire and judges ruled that deputies violated the rights of motorists by conducting unconstitutional searches.

The Times analyzed data from every traffic stop recorded by the team from 2012 through the end of last year — more than 9,000 stops in all — and reviewed records from hundreds of court cases. Among its findings:

  • Latino drivers accounted for 69% of the deputies’ stops. Officers from the California Highway Patrol, mainly policing traffic violations on the same section of freeway, pulled over nearly 378,000 motorists during the same period; 40% of them were Latino.
  • Two-thirds of Latinos who were pulled over by the Sheriff’s Department team had their vehicles searched, while cars belonging to all other drivers were searched less than half the time.
  • Three-quarters of the team’s searches came after deputies asked motorists for consent rather than having evidence of criminal behavior. Several legal scholars said such a high rate of requests for consent is concerning because people typically feel pressured to allow a search or are unaware they can refuse.
  • Though Latinos were much more likely to be searched, deputies found drugs or other illegal items in their vehicles at a rate that was not significantly higher than that of black or white drivers.

From top to bottom: L.A. County Sheriff’s Deputies search a motorist’s suitcase. Also a deputy uses a device for measuring density to search for hidden drugs and clutches some tools he uses to perform vehicle searches. (Myung J. Chun / Los Angeles Times)

The L.A. County Sheriff’s Department said that racial profiling plays no role in the deputies’ work and that they base their stops only on a person’s driving and other impartial factors.

In December, Sheriff Jim McDonnell heaped praise on the team, ticking off its accomplishments in a lengthy statement. “The importance of this mission cannot be overstated,” the sheriff said.

But several legal and law enforcement experts said the department’s own records strongly suggest the deputies are violating the civil rights of Latinos by racially profiling, whether intentionally or not.

“When they say, ‘We’re getting all these drugs out of here,’ they are not taking into account the cost,” said David Harris, a law professor at the University of Pittsburgh who studies racial profiling by police. “They are sacrificing their own legitimacy in the community as a whole and the Latino community in particular.”

Kimberly Fuentes, research director for the California League of United Latin American Citizens, described The Times’ findings as “extremely disturbing and troubling” and said the advocacy organization would demand a meeting with Sheriff’s Department officials.

“These findings risk tarnishing any trust between the Sheriff’s Department and the Latino community,” Fuentes said.

My opinion? A pullover and search of your vehicle is unlawful if the reason for the pullover/search is racial profiling. Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior. Examples of racial profiling by federal, state, and local law enforcement agencies are illustrated in legal settlements and data collected by governmental agencies and private groups, suggesting that minorities are disproportionately the subject of routine traffic stops and other security-related practices.

Also, pretextual searches are also unlawful. Pretext is an excuse to do something or say something that is not accurate. Pretexts may be based on a half-truth or developed in the context of a misleading fabrication. Pretexts have been used to conceal the true purpose or rationale behind actions and words. A pretextual search and arrest by law enforcement officers is one carried out for illegal purposes such as to conduct an unjustified search and seizure.

Please contact my office if you, a friend or family member was charged with a crime after being racially profiled and/or pulled over for unlawful pretext. I provide zealous representation to all defendants facing these circumstances.

Bellingham’s Most Dangerous Intersections

Informative article by David Rasbach of the Bellingham Herald reports on statistics provided by the Bellingham Police Department Traffic Division showing Bellingham’s most dangerous intersection.

Apparently, at least in terms of the sheer number of accidents, West Bakerview Road and Northwest Drive reigns as the most dangerous intersection in the city.

In a distracted driving study conducted by its traffic division from January 2016 through June 2017, Bellingham Police received 1,350 reports of accidents within city limits, regardless of severity or injury. Of those, 43 accidents occurred at the intersection of Bakerview and Northwest — the highest total of any intersection in town.

Rasbach also reports that three of the top four most dangerous intersections during the 18-month study were in that same corridor: West Bakerview Road and Eliza Avenuehad the third highest accident total with 22 wrecks, while West Bakerview Road and Cordata Parkway was fourth highest with 18.

The only intersection breaking up Bakerview’s stranglehold on the top of Bellingham’s dangerous intersections list — Lakeway Drive and Lincoln Street, which had 25 reported accidents — is very similar, with two busy shopping centers and a school occupying three of the four corners. Nearby Lakeway Drive and King Street tied for sixth-most dangerous with Woburn Street and Barkley Boulevard with 14 reported accidents, each.

Also, the lone roundabout at Cordata Parkway and West Kellogg Road had 16 accidents reported.

Please contact my office if you, a family member or friend are criminally charged for traffic-related incidents. Unfortunately, it’s very easy to be charged with DUI, Reckless Driving, Negligent Driving, Driving While License Suspended, Eluding and/or numerous traffic citations. Bellingham’s dangerous intersections only exacerbate the situation and make it more likely that an unlawful pretextual pullover will happen.

Most of all, drive safe!

Celebrate the Fourth of July Responsibly

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When celebrating holidays, many people gather with friends and family, decorating their homes and enjoying time together. However, some holiday celebrations often include consuming substances like illegal drugs and alcohol.

In 2016, Americans spent more than $1 billion on cold beverages for their Fourth of July celebrations. That amount was higher than what was spent on burgers and hotdogs, combined. According to CNBC, the Fourth of July is the country’s largest beer-drinking holiday. The popular holiday also surpassed New Year’s as the most dangerous holiday of the year, especially when it comes to traveling on the roadways. According to the Los Angeles Times, there was an average of 127 fatal car crashes each year on July 4 between 2008 and 2012. Of those who died, 41 percent of people had elevated blood alcohol levels.

So how did the day that was meant to celebrate America’s birthday become a day where people choose to drink? The Fourth of July is a federal holiday, which means that most businesses are closed and the employees of those businesses get to enjoy the day off. Jeffrey Spring, a spokesman for the Automobile Club of Southern California, told the Los Angeles Times that it’s more than just celebrating a day off of work. “They tend to try to cram a lot into these weekends and that’s where they get into trouble,” Spring said. In other words, a paid holiday is taken to new heights due to the excitement of having a free day to themselves.

Some advice? Please remember that beneath all the celebration, the Fourth of July is more than just about alcoholic drinks and setting off fireworks. In 1776, the thirteen American colonies declared themselves independent from the British Empire, thus the United States of America was born. Also known as Independence Day, the day celebrates the birth of the country. It can be commemorated in speeches presented by politicians, celebrities hosting private events, or military personnel saluting the United States at noon on the holiday by shooting off a rifle.

The Fourth of July is important to celebrate for its historical significance. This holiday is a time to remind people not only of the hard work and dedication it took to become the country that the United States is today, but to encourage people to live their lives to their fullest potential.

Don’t let the Fourth of July become a catalyst for illegal behavior.

However, please call my office if you, a friend or family member consume intoxicants this Fourth of July and later find yourselves facing criminal charges. It’s imperative to hire responsive and experienced defense counsel when contacted by law enforcement.

Search of Rental Cars

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In Byrd v. United States, the United States Supreme Court held that while a car thief does not have right to privacy in a stolen car no matter the degree of possession and control, the driver of a rental car can challenge a warrantless search of the vehicle even if the driver is not listed as an authorized driver on the rental agreement.

BACKGROUND FACTS

Latasha Reed rented a car in New Jersey while petitioner Terrence Byrd waited outside the rental facility. Her signed agreement warned that permitting an unauthorized driver to drive the car would violate the agreement. Reed listed no additional drivers on the form, but she gave the keys to Byrd upon leaving the building. He stored personal belongings in the rental car’s trunk and then left alone for Pittsburgh, Pennsylvania.

Pennsylvania State Troopers stopped Byrd for a traffic infraction. They learned that the car was rented, that Byrd was not listed as an authorized driver, and that Byrd had prior drug and weapons convictions. Byrd also stated he had a marijuana cigarette in the car.

The troopers proceeded to search the car, discovering body armor and 49 bricks of heroin in the trunk. The evidence was turned over to federal authorities, who charged Byrd with distribution and possession of heroin with the intent to distribute in violation of 21 U. S. C. §841(a)(1) and possession of body armor by a prohibited person in violation of 18 U. S. C. §931(a)(1). The District Court denied Byrd’s motion to suppress the evidence as the fruit of an unlawful search, and the Third Circuit affirmed. Both courts concluded that, because Byrd was not listed on the rental agreement, he lacked a reasonable expectation of privacy in the car.

COURT’S ANALYSIS AND CONCLUSIONS

In a unanimous decision favoring Byrd, Justice Anthony Kennedy wrote, “The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy.”

The Court added that there can be numerous reasons why a driver unlisted on a rental contract may need to drive the rental car, and that the government had not shown that whether the simple breach of the rental contract would affect the expectation of privacy.

Also, the Court reasoned that one of the main rights attaching to property is the right to exclude others. Also, one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude. “This general property-based concept guides resolution of the instant case,” said Justice Kennedy:

“The Government’s contention that drivers who are not listed on rental agreements always lack an expectation of privacy in the car rests on too restrictive a view of the Fourth Amendment’s protections. But Byrd’s proposal that a rental car’s sole occupant always has an expectation of privacy based on mere possession and control would, without qualification, include thieves or others who have no reasonable expectation of privacy.”

The Court rejected the Government’s arguments that an unauthorized driver has no privacy interest in the vehicle. Byrd, in contrast, was the rental car’s driver and sole occupant. His situation is similar to the defendant in Jones v. United States, who had a reasonable expectation of privacy in his friend’s apartment because he had complete dominion and control over the apartment and could exclude others from it:

“The expectation of privacy that comes from lawful possession and control and the attendant right to exclude should not differ depending on whether a car is rented or owned by someone other than the person currently possessing it, much as it did not seem to matter whether the defendant’s friend in Jones owned or leased the apartment he permitted the defendant to use in his absence.”

The Court also rejected the Government’s argument that Byrd had no basis for claiming an expectation of privacy in the rental car because his driving of that car was so serious a breach of Reed’s rental agreement that the rental company would have voided the contract once he took the wheel. “But the contract says only that the violation may result in coverage, not the agreement, being void and the renter’s being fully responsible for any loss or damage,” said Justice Kennedy. “And the Government fails to explain what bearing this breach of contract, standing alone, has on expectations of privacy in the car.”

Kennedy’s decision concluded that there remained two issues which the Supreme Court remanded back to the lower courts: (1) whether Officer Long had probable cause to search the car in the first place, and (2) whether Byrd intentionally used a third party as a straw man in a calculated plan to mislead the rental company from the very outset, all to aid him in committing a crime.

With that, the Supreme Court vacated Byrd’s conviction and remanded back to the Third Circuit Court of Appeals.

Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justice Alito also filed a concurring opinion.

Inventory Searches of Cars

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In United States v. Johnson, the Ninth Circuit Court of Appeals held that a suspicionless inventory search is only proper when it is performed to secure and to protect an arrestee’s property and to protect the police department against fraudulent claims of lost or stolen property. Evidence removed from the defendant’s car could not be justified under the inventory-search doctrine where the officers explicitly admitted that they seized the items in an effort to search for evidence of criminal activity.

BACKGROUND FACTS

On April 10, 2014, Multnomah County Sheriff’s deputies located Mr. Johnson—who had an outstanding warrant for his arrest based on a post-prison supervision violation—at the Clackamas Inn, just south of Portland, Oregon. The deputies followed Johnson to a residence in the nearby town of Gladstone and called Portland Police Bureau (PPB) Officers Corona and Ables for assistance in arresting him.

The officers did not approach Johnson at the residence, but instead waited outside. After about 20 minutes, Johnson left, and again the officers followed him. At a nearby intersection, the officers finally stopped Johnson by loosely boxing in his car; one car approached Johnson from behind while another approached from the front, effectively blocking Johnson’s ability to drive away. The cars all came to a stop within a few feet of each other, and although there was enough room for Johnson to pull his car to the side of the road, he instead parked in the lane of traffic, disrupting the flow of passing cars. When approached by the officers, Johnson could not provide proof of insurance for the car, which he was borrowing, nor could he give anything other than the first name of the car’s owner. Johnson did not know how the police could contact the owner.

The officers arrested Johnson on the outstanding warrant. After the arrest, the officers searched Johnson and found a folding knife in his front pocket, $7,100 in cash in $20 and $100 denominations in his rear pants pocket, and $150 in cash in his wallet. Johnson said that he had recently inherited the $7,100 and that he planned to purchase a car with it.

Because Johnson’s car was blocking traffic and because Johnson could not provide contact information for the car’s owner, the officers ordered it to be towed and impounded, pursuant to PPB policy. Prior to the tow, the officers conducted an inventory search of the car, again pursuant to local policy. From the interior of the car, the officers collected a combination stun gun and flashlight, a glass pipe with white residue, a jacket, and two cellphones. From the trunk, the officers collected a backpack and a duffel bag. Officer Corona testified that, when he moved the backpack and duffel in order to search for other items in the trunk, the bags felt heavy and the backpack made a metallic “clink” when he set it down on the pavement. PPB stored each of the seized pieces of property in the County property and evidence warehouse, and the $7,100 was taken into custody by the County Sherriff’s Office. Officer Corona recorded each item seized on an accompanying arrest report; the Sheriff’s Office prepared a property receipt for the $7,100 in seized cash.

A week later, Officer Corona submitted an affidavit to secure a warrant to search the seized backpack, duffel bag, and cell phones. The affidavit referred to a 2009 police report (which Corona read after arresting Johnson) that stated Johnson had previously been found with cash, weapons, and drugs in a safe concealed in his vehicle. Officer Corona’s affidavit stated that, based on the circumstances of Johnson’s recent arrest, he had probable cause to believe the bags seized from the trunk would contain similar lockboxes, and that the phones would contain evidence of drug dealing.

A warrant was duly signed by a local magistrate judge, and a search of the backpack revealed a small safe containing two bags of methamphetamine, drug-packaging materials, syringes, and a digital scale. The duffel bag contained Johnson’s personal items, and one of the cellphones contained text messages regarding drug trafficking.

Johnson was indicted on one charge of possession with intent to distribute methamphetamine in an amount of 50 grams or more, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii).

Before trial, Johnson moved to suppress the evidence found in the car and on his person at arrest. Primarily, Johnson challenged the evidence supporting the warrant to search the backpack and cellphones, arguing that it did not amount to probable cause. Johnson also argued that the officers unlawfully manipulated the bags they seized from the car in order to get a sense for what they might contain and that the inventory search of his car was invalid.

The federal district court denied the motion, concluding that there was probable cause to stop and to arrest Johnson on the outstanding warrant, the officers validly impounded Johnson’s car because it was blocking traffic, the subsequent inventory of the vehicle was “lawful because PPB mandates officers to conduct an inventory of impounded vehicles,” and the search warrant was supported by probable cause.

At trial, the government introduced the evidence found in Johnson’s car and on his person, with a particular focus on the items of evidence found in the backpack, the messages from the cellphone, and the $7,100 in cash. The jury found him guilty.

Approximately four months later, Johnson filed a motion for new trial on the basis of, among other things, two pieces of supposedly newly discovered evidence: (1) evidence showing that Johnson had indeed recently received an inheritance; and (2) a receipt from the private company that towed and impounded his car, which stated that they found various additional items of property in the car that were not listed in Officer Corona’s arrest report. After a hearing, the district court denied the motion for a new trial upon the conclusion that none of the supposedly new evidence would have resulted in a likely acquittal.

Johnson was sentenced to 188 months in prison, and he now timely appeals.

LEGAL ISSUE

Whether the trial court erred in failing to suppress evidence that was seized by City of Portland police officers during their inventory search of a criminal defendant and the car he was driving at the time of his arrest.

COURT’S ANALYSIS & CONCLUSIONS

Johnson argued that the officers’ inspection of his car exceeded the constitutionally permissible bounds for an inventory search.

The Ninth Circuit reasoned that as an exception to the warrant requirement of the Fourth Amendment to the United States Constitution, police may, without a warrant, impound and search a motor vehicle so long as they do so in conformance with the standardized procedures of the local police department and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic. The purpose of such a search is to produce an inventory of the items in the car, in order to protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. Florida v. Wells, 495 U.S. 1, 4 (1990). Thus, the purpose of the search must be non-investigative; it must be conducted on the basis of something other than suspicion of evidence of criminal activity. The search cannot be “a ruse for a general rummaging in order to discover incriminating evidence.” Wells, 495 U.S. at 4.

The Court of Appeals further reasoned that an administrative search may be invalid where the officer’s subjective purpose was to find evidence of crime. However, the mere presence of a criminal investigatory motive or a dual motive—one valid, and one impermissible— does not render an administrative stop or search invalid. Instead, the issue is whether the challenged search or seizure would have occurred in the absence of an impermissible reason.

“We thus must determine whether Johnson has produced evidence that demonstrates the officers would not have searched and seized items from the car he was driving but for an impermissible motive,” said the Court of Appeals.

“Under our circuit’s law, a suspicionless inventory search does not permit officers to search or to seize items simply because they believe the items might be of evidentiary value,” said the Court.  It reasoned that as explained above, the purpose of such a search must be unrelated to criminal investigation; it must function instead to secure and to protect an arrestee’s property, and likewise to protect the police department against fraudulent claims of lost or stolen property.

“Thus, the officers’ statements directly admitting that they searched and seized items from Johnson’s car specifically to gather evidence of a suspected crime are sufficient to conclude that the warrantless search of the car was unreasonable,” said the Court, citing Orozco; a case where the Ninth Circuit found pretext where the police officers admitted that their subjective purpose was to find evidence of crime.

The Ninth Circuit concluded that the officers’ search and seizure of such evidence cannot be justified under the inventory-search doctrine:

“In the face of such evidence, it is clear to us that the officers’ decision to seize the money, bags, and cellphones from Johnson and his car would not have occurred without an improper motivation to gather evidence of crime.”

Furthermore, the Ninth Circuit reasoned that because the government has not offered any justification for the seizure of such property other than the inventory-search doctrine, the district court erred in denying Johnson’s motion to suppress. Therefore, evidence gathered from Johnson and his vehicle was inadmissible.

With that, the Ninth Circuit ruled that the federal district court’s denial of Johnson’s motion to suppress the evidence found on his person and in the car he was driving at the time of his arrest is reversed, his conviction and sentence are vacated, and the case is remanded back to the district court for further proceedings.

My opinion? Good decision. Clearly, the search conducted by police officers in this case went beyond the scope of a lawful inventory search. Please contact my office if you, a friend of family member face criminal charges involving a questionable search. The evidence might be suppressible under a well-argued pretrial motion.