Category Archives: Drug Offenses

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.

DUI For Left-Lane Travel

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In State v. Thibert, the WA Court of Appeals upheld the DUI conviction of a motorist who was pulled over for the traffic infraction of travelling in the far-left lane of the freeway.

BACKGROUND FACTS

Deputy Justin Gerry was on routine patrol one morning in July 2013 on westbound Interstate 82 in Benton County. He observed a silver Chevrolet Impala in the left lane pass a vehicle in the right lane, traveling faster than the posted 70 miles per hour speed limit. The Impala continued to travel in the left lane long after passing the vehicle in the right lane, even though no other vehicles were traveling in the unobstructed right lane. The deputy initiated a traffic stop not for the car’s speed, but for a violation of RCW 46.61.100(2), captioned “Keep right except when passing, etc.”

On approaching the vehicle, which was being driven by Mr. Thibert, Deputy Gerry smelled the odor of fresh marijuana. What looked like a smoking device was hanging from Mr. Thibert’s neck. Mr. Thibert told the deputy he was a medical marijuana patient and used the smoking device to smoke marijuana oil. Deputy Gerry noted that Mr. Thibert had difficulty finishing his sentences and that he “would sometimes stop speaking and just giggle.”

Mr. Thibert agreed to perform field sobriety tests. Based on Mr. Thibert’s performance, Deputy Gerry concluded he was under the influence of marijuana and could not safely operate a motor vehicle. He placed Mr. Thibert under arrest and transported him to the hospital for a blood draw. THC was present in Mr. Thibert’s blood at 55 nanograms. He was charged with driving a motor vehicle while under the influence of marijuana.

Mr. Thibert moved on multiple grounds to suppress evidence obtained as a result of the traffic stop and events that followed. The district court denied the motion. It found among other facts that Mr. Thibert’s “remaining in the left lane, when one could lawfully and safely return to the right lane, is an infraction and provided Deputy Gerry probable cause to stop.” The parties agreed to submit the case to the court for a determination of guilt on stipulated facts. The district court found Mr. Thibert guilty.

Mr. Thibert appealed to the Benton County Superior Court, which affirmed the judgment, dismissed the appeal, and remanded the matter to the district court for sentencing.

Afterward, Mr. Thibert appealed his case to the WA Court of Appeals on the issue of whether Mr. Thibert was stopped unlawfully because the fact that he drove in the left lane, without impeding traffic, did not establish reasonable suspicion for the stop.

COURT’S ANALYSIS & CONCLUSIONS

“At issue is whether RCW 46.61.100(2), on which Deputy Gerry relied in stopping Mr. Thibert, creates a traffic infraction,” said the Court of Appeals.

The WA Court of Appeals said that a reasonable articulable suspicion of a traffic infraction, like a reasonable articulable suspicion of criminal activity, will support a warrantless traffic stop under article I, section 7 of the Washington Constitution. Subsection (2) of RCW 46.61.100, which Mr. Williams contends addresses only the “primary use” of the left lane of a multi-lane highway, states:

“Upon all roadways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lane then available for traffic, except (a) when overtaking and passing another vehicle proceeding in the same direction, (b) when traveling at a speed greater than the traffic flow, (c) when moving left to allow traffic to merge, or (d) when preparing for a left turn at an intersection, exit, or into a private road or driveway when such left turn is legally permitted.”

Plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

Subsection (4), which he contends identifies the only infraction arising from
driving in the left lane, provides: “It is a traffic infraction to drive continuously in the left lane of a multi-lane roadway when it impedes the flow of other traffic.”

The Court further reasoned that, plainly read, RCW 46.63.020 and 46.61.100 make it a traffic infraction to travel in the left lane in the four circumstances identified by RCW 46.61.100(2). The word “shall” in subsection (2) (“all vehicles shall be driven in the right-hand lane then available for traffic, except . . .”) “is presumptively imperative and operates to create a duty.”

The Court disagreed with Mr. Thibert’s contention that if each of subsections (2) and (4) of RCW 46.61.100 identify traffic infractions, then they are irreconcilable or cancel each other out.

“The subsections are reconcilable,” said the Court. “An individual is permitted to drive in the left lane when one of the transient exceptions identified in subsection (2) applies, unless the transient exceptions arise so frequently that the individual’s continuing travel in the left lane is impeding traffic.” Also, because the conduct that was forbidden by the statute can be understood by ordinary people, the Court of Appeals rejected Mr. Thibert’s passing argument that the statute is void for vagueness.

With that, the Court of Appeals upheld Mr. Thibert’s conviction.

Please contact my office if you, a friend or family member face charges of DUI or other traffic-related charges.

Marijuana Use & Your Job

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

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

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

Which profession smokes the most pot?

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

What other professions have a high proportion of marijuana users?

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

What about people in high risk jobs?

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

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

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

Next steps: Workplace marijuana use policies

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

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

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

Marijuana use is frequently linked to mental health issues

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

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

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

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

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

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

Whatcom County Sues Opioid Drug Manufacturer

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

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

The vote was 7-0.

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

-Council member Todd Donovan.

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

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

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

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

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

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

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

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

The Particularity Requirement for Search Warrants

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

BACKGROUND FACTS

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

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

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

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

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

Application for a Search Warrant

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

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

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

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

Criminal Charges

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

Motion to Suppress

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

Probation Searches

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

Drug Offender Recidivism

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A recent Pew Study suggests that imprisoning drug offenders for longer prison sentences does not reduce drug problems in any given state. In other words, there is no statistical data showing a relationship between prison terms and drug misuse.

To test this, Pew compared state drug imprisonment rates with three important measures of drug problems— self-reported drug use (excluding marijuana), drug arrest, and overdose death—and found no statistically significant relationship between drug imprisonment and these indicators. In other words, higher rates of drug imprisonment did not translate into lower rates of drug use, arrests, or overdose deaths.

The study found that nearly 300,000 people are held in state and federal prisons in the United States for drug-law violations, up from less than 25,000 in 1980. These offenders served more time than in the past: Those who left state prisons in 2009 had been behind bars an average of 2.2 years, a 36 percent increase over 1990, while prison terms for federal drug offenders jumped 153 percent between 1988 and 2012, from about two to roughly five years.

The study said that as the U.S. confronts a growing epidemic of opioid misuse, policymakers and public health officials need a clear understanding of whether, how, and to what degree imprisonment for drug offenses affects the nature and extent of the nation’s drug problems. To explore this question, The Pew Charitable Trusts examined publicly available 2014 data from federal and state law enforcement, corrections, and health agencies. The analysis found no statistically significant relationship between state drug imprisonment rates and three indicators of state drug problems: self-reported drug use, drug overdose deaths, and drug arrests.

The findings—which Pew sent to the President’s Commission on Combating Drug Addiction and the Opioid Crisis in a letter dated June 19, 2017—reinforce a large body of prior research that cast doubt on the theory that stiffer prison terms deter drug misuse, distribution, and other drug-law violations. The evidence strongly suggests that policymakers should pursue alternative strategies that research shows work better and cost less.

“Although no amount of policy analysis can resolve disagreements about how much punishment drug offenses deserve, research does make clear that some strategies for reducing drug use and crime are more effective than others and that imprisonment ranks near the bottom of that list. And surveys have found strong public support for changing how states and the federal government respond to drug crimes.”

“Putting more drug-law violators behind bars for longer periods of time has generated enormous costs for taxpayers, but it has not yielded a convincing public safety return on those investments,” concluded the study. “Instead, more imprisonment for drug offenders has meant limited funds are siphoned away from programs, practices, and policies that have been proved to reduce drug use and crime.”

My opinion? Public safety should be the number one reason we incarcerate. However, penalties should be the most effective, proportional, and cost-efficient sanction to achieve that goal. This would create more uniform sentences and reduce disparities, while preserving judicial discretion when necessary.

Please contact my office if you, a friend or family member face drug charges. If convicted, your loved ones risk facing an unnecessary amount of incarceration. Only a competent and experienced criminal defense attorney can reduce of criminal charges and/or facilitate the implementation of sentencing alternatives which reduce the amount of prison time an offender faces.

Witness Tampering

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In State v. Gonzalez, the WA Court of Appeals decided there was sufficient evidence that the defendant attempted to influence a witness to testify falsely where he asked the witness to give a different story than the one she told the police.

BACKGROUND FACTS

The defendant Leonel Gonzalez was in a relationship with Nona Hook for several years. Hook lived with her mother, Carol Salyers, and several other family members, and Gonzalez was frequently in the home. Salyers owned a Jeep and permitted Hook, but not Gonzalez, to drive it.

In the early morning hours of September 21, Gonzalez called Hook, and she asked him if
he had taken her Jeep. According to Hook, Gonzalez denied knowing anything about the Jeep, but he told her that he was “coming home.” At some point after this call, someone contacted the police.

The police were waiting when Gonzalez arrived at Hook’s home in the Jeep. Upon seeing
the police, Gonzalez drove away, jumped out of the Jeep while it was still moving, and attempted to flee on foot. The Jeep rolled into and damaged a parked vehicle. The police caught and arrested Gonzalez. Following his arrest, officers discovered a white substance that later tested positive for both methamphetamine and cocaine in Gonzalez’s back pocket.

Jail Call

While in jail following his arrest, Gonzalez called Hook. This call was recorded.

During the call, Gonzalez insisted that Hook listen to him and told her that some people
were trying to contact her and that when his “investigator” or “somebody” called her, she was to tell them that she “gave him permission.” Hook responded, “Tell them that I gave you permission,” and Gonzalez interrupted her and told her to “listen” and said adamantly, “That’s it.”

Hook responded by chuckling and saying, “That’s gonna be a little bit hard for me to do.”  Gonzalez appears to respond, “Well, then don’t do it.” The rest of Gonzalez’s response is unclear.

Hook replied, “I mean, for one thing, I was—you already know what the deal was.” And Gonzalez told her aggressively to “listen” and that they were not “going to talk about all that.” He then stated, “You know what to do, so.” Gonzalez and Hook then talked about when Hook could visit so they could talk about their relationship and whether they would marry even if he was in prison. During this part of the conversation, Hook commented about how hard it was for her to be away from him, and Gonzalez responded by asking her whether she “would rather deal with” 6 or 15 years.

Criminal Charges

The State charged Gonzalez with theft of a motor vehicle, unlawful possession of a controlled substance (methamphetamine), hit and run, and tampering with a witness.

Jury Trial & Appeal

At trial, Ms. Hook testified about the jail calls. Ultimately, the jury found Gonzalez guilty of unlawful possession of a controlled substance and tampering with a witness.

Gonzalez appealed under arguments that the evidence was insufficient to support the witness tampering conviction because (1) he asked Hook to speak to his investigator and never discussed her testimony and (2) there was no evidence he was asking Hook to testify falsely.

COURT’S ANALYSIS & CONCLUSIONS

Gonzalez argues that the State failed to prove that he was attempting to influence Hook to
testify falsely because he asked her to tell the defense investigator only something different than she told the police. He asserts that speaking to the defense investigator is not the equivalent of testimony.

“We disagree,” said the Court of Appeals. The Court reasoned that Gonzalez’s request that Hook tell the defense investigator a different story than she told the police would have little effect if it did not also imply that Hook needed to also be willing to testify consistently with what she told the defense investigator. “Thus, a rational finder of fact could have easily found that Gonzalez was attempting to influence Hook’s potential testimony,” said the Court.

Gonzalez also argued that there was insufficient evidence to establish that he asked Hook
to testify falsely.

“Again, we disagree,” said the Court of Appeals. “At no point in her testimony did Hook testify that she had given Gonzalez permission to take the Jeep on September 18th,” said the Court. Instead, she testified that she dropped Gonzalez off, drove the Jeep home and parked it, and left the keys near the back door. Although Gonzalez came into her bedroom the next morning, Hook did not testify that he asked for or that she gave him permission to drive the Jeep.

The Court of Appeals further reasoned that taking this evidence in the light most favorable to the State, the jury could find that Hook’s testimony established that Gonzalez took the Jeep without her permission and that Hook’s testimony was truthful.

“Given that Gonzalez asked Hook to state that she had given him permission, a rational finder of fact could have easily found that Gonzalez was asking Hook to testify falsely. Accordingly, Gonzalez’s insufficient evidence arguments fail, and we affirm his witness tampering conviction.”

In sum, the Court of Appeals affirmed Gonzalez’s convictions, but remanded for re-sentencing on the unlawful possession of a controlled substance conviction consistent with this opinion.

Wine Glass Sizes Are Increasing

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An article by of the Guardian reports that scientists at the University of Cambridge have found that the capacity of wine glasses has ballooned nearly seven-fold over the past 300 years, rising most sharply in the last two decades in line with a surge in wine consumption.

Wine glasses have swelled in size from an average capacity of 66ml in the early 1700s to 449ml today, the study reveals – a change that may have encouraged us to drink far more than is healthy. Indeed, a typical wine glass 300 years ago would only have held about a half of today’s smallest “official” measure of 125ml.

Smithers reports that the university’s behaviour and health research unit quizzed antique experts and examined 18th-century glasses held at the Ashmolean museum in Oxford, glassware used at Buckingham Palace, and more recent glasses in John Lewis catalogues.

The evidence was clear: the newer glasses were bigger.

The study, published on Wednesday in the BMJ, measured wine glass capacity from 1700 to the present day to help understand whether any changes in their size might have contributed to the rise in wine consumption.

“Wine will no doubt be a feature of some merry Christmas nights, but when it comes to how much we drink, wine glass size probably does matter,” said Prof Theresa Marteau, director of the Behaviour and Health Research Unit at the University of Cambridge, who led the research.

In 2016, Marteau and her colleagues carried out an experiment at the Pint Shop in Cambridge, altering the size of wine glasses while keeping the serving sizes the same. They found this led to an almost 10% increase in sales.

Smithers reports that for the new study, the researchers obtained measurements of 411 glasses from 1700 to the modern day. They found wine glass capacity increased from 66ml in the 1700s to 417ml in the 2000s, with the mean wine glass size in 2016-17 even higher at 449ml.

“Wine glasses became a common receptacle from which wine was drunk around 1700,” says author Dr. Zorana Zupan. “This followed the development of lead crystal glassware by George Ravenscroft in the late 17th century, which led to the manufacture of less fragile and larger glasses than was previously possible.”

The study points out that alcohol is the fifth largest risk factor for premature mortality and disability in high income countries. In England, the type of alcohol and volume consumed has fluctuated over the last 300 years, in response to economic, legislative and social factors. Significantly, wine consumption increased almost fourfold between 1960 and 1980, and almost doubled again between 1980 and 2004, a trend attributed to better marketing and licensing liberalisation which allowed supermarkets to compete in the lucrative drinks retail business.

“Our findings suggest that the capacity of wine glasses in England increased significantly over the past 300 years,” added Zupan.

“Since the 1990s, the size has increased rapidly. Whether this led to the rise in wine consumption in England, we can’t say for certain, but a wine glass 300 years ago would only have held about a half of today’s small measure.”

The strength of wine sold in the UK has also increased since the 1990s, adding to the amount of pure alcohol being consumed by wine drinkers.

In England, wine is increasingly served in pubs and bars in 250ml servings, with smaller measures of 125ml often absent from wine lists or menus despite a regulatory requirement that licensees make customers aware of them.

The Wine and Spirits Trade Association said sociological trends were probably part of the reason for the growing wine glasses.

“The size of a wine glass reflects the trend and fashions of the time and is often larger for practical reasons” said the WSTA chief executive Miles Beale. “Red wine, for example, is served in a larger glass to allow it to breathe, something which perhaps wasn’t a priority 300 years ago.”

Drink responsibly. If, however, your family or friends are charged with DUI or face any other alcohol-related charges, then contact my law offices and schedule a free consultation. You need effective and competent representation before the judge, prosecutors and the Department of Licensing.