Category Archives: Exigent Circumstances

Forced & Warrantless Entry

Image result for police smash door

In Bonivert v. City of Clarkston, the Ninth Circuit Court of Appeals held that police officers responding to a “physical domestic” call violated the Fourth Amendment by entering the locked house without a warrant after the suspect, who was the lone occupant of the home by the time the police arrived, refused repeated requests to come to the door. Under the facts of the case, the forced entry could not be upheld under consent, emergency doctrine or exigent circumstances.

BACKGROUND FACTS

This case starts with a domestic dispute call to the police from the home of Ryan Bonivert. During an evening gathering with friends, Bonivert reportedly argued with his girlfriend, Jessie Ausman, when she attempted to leave with the couple’s nine-month old daughter. By the time police arrived, the disturbance was over: Ausman, the baby, and the guests had safely departed the home, leaving Bonivert alone inside. At that point, there was no indication that Bonivert had a weapon or posed a danger to himself or others. Nor does the record suggest that Ausman intended to reenter the house or otherwise asked police to accompany her inside. When Bonivert failed to respond to repeated requests to come to the door, the officers decided they needed to enter the house. No attempt was made to obtain a search warrant.

Though Bonivert locked the door to his house and refused police entreaties to talk with them, the police broke a window to unlock and partially enter the back door. Even then, Bonivert tried to shut the door, albeit unsuccessfully. Although Ausman consented to the officers entering the house, Bonivert’s actions were express—stay out.

Nevertheless, the officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, handcuffed him, and arrested him. Bonivert was arrested for assaulting an officer, resisting arrest, and domestic violence assault in the fourth degree.

Bonivert brought civil rights claims under 42 U.S.C. § 1983 against the City, the County, Combs, Purcell, Gary Synder, and Joseph Synder, alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The district court granted summary judgment in favor of the defendants on the basis of qualified immunity.

For those who don’t know, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights. It only allows suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Ninth Circuit concluded that the warrantless entry into Bonivert’s home violated the Fourth Amendment as none of the lawful exceptions to the warrant requirement applied. The officers are not entitled to qualified immunity.

The Police Officers Were Not Entitled to Qualified Immunity.

The Court reasoned that police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the defendants’ conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation.

In other words, the question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Fourth Amendment

The Court of Appeals explained that the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

“It has long been recognized that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” reasoned the Court. “This special protection of the home as the center of the private lives of our people reflects an ardent belief in the ancient adage that a man’s house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.” Consequently, the Court reasoned it is a basic principle of Fourth Amendment law that warrantless searches of the home or the curtilage surrounding the home are presumptively unreasonable.

“Taken in the light most favorable to Bonivert,  . . . the facts demonstrate that the officers violated Bonivert’s constitutional right because no exception to the Fourth Amendment’s warrant requirement justified the officers’ entry into Bonivert’s home.”

Warrantless Entry: Officer are Not Entitled to Entry Under the “Consent” Exception.

The Court explained that although the consent exception ordinarily permits warrantless entry where officers have obtained consent to enter from a third party who has common authority over the premises, Georgia v. Randolph held that an occupant’s consent to a warrantless search of a residence is unreasonable as to a co-occupant who is physically present and objects to the search.

“Such is the situation here,” said the Court of Appeals. “Even though the officers secured
Ausman’s (his girlfriend’s) consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions.”

The court explained that Bonivert expressly refused entry when he locked the side door to his house. During the initial “knock and talk,” Combs and Purcell knocked and attempted to open the front and back doors to the house, but found them to be locked. As the officers circled the house to approach the side door, Bonivert realized it was unlocked and locked it as Combs was approaching. Combs heard the door lock and informed Purcell.

Bonivert also expressly refused entry when he attempted to close the back door on the officers after Combs broke in. Once the officers decided to enter the home by force, Combs used his flashlight to shatter a window pane in the back door, reached through the opening, and unlocked the door. At that point, Bonivert partially opened the door and confronted the officers, which prompted the officers to fire their tasers in dart mode. All parties agree that after the darts failed to make contact, Bonivert tried to shut the door, placing it between himself and the officers, but ultimately was prevented from doing so when Officer Combs rushed through with such force that he threw Bonivert to the other side of the room.

“Based on the foregoing, we hold that the officers are not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement. Simply put, a reasonable officer would have understood that no means no.”

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Emergency” Exception.

The Court reasoned that the emergency aid exception permits law enforcement officers to enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  An entry pursuant to the emergency aid exception is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. However, the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests, because the emergency exception is narrow and rigorously guarded.

“Viewing the facts in the light most favorable to Bonivert, there were simply no circumstances pointing to an actual or imminent injury inside the home,” said the Court. By the time the officers arrived, both Ausman and the child were safely outside, surrounded by four other adults intent on protecting them from harm. During the entire time that the officers spoke to the witnesses, circled and attempted to enter the home from various points, and called on Deputies Gary and Joseph Snyder for backup, the house was silent. Ausman further assured the officers that there were no weapons in the house and that Bonivert did not pose a danger to himself. Consequently, the Court rejected arguments that an emergency existed which allowed warrantless entry into the house.

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Exigent Circumstances” Exception.

The Court explained that the exigency exception permits warrantless entry where officers have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is necessary to prevent the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

Here, the Court reasoned that Bonivert, who was inside his home when the alleged domestic assault occurred and remained there even after the officers broke into his back door, was never a “fleeing suspect.” The officers never articulated any other legitimate law enforcement justification for entry under the exigency exception.

The Lower Court Improperly Denied Bonivart’s Excessive Force Claims.

Taken in the light most favorable to Bonivert, the evidence reflects that Bonivert remained inside the home at all times; that Bonivert did not threaten or advance toward the officers; that Bonivert posed no immediate threat to the officers; that Combs threw Bonivert across the back room; that Bonivert did not resist arrest; and that Combs tasered Bonivert several times in drive-stun mode notwithstanding Bonivert’s compliance. The evidence does not justify the district court’s conclusion that “no reasonable jury could find the use of force within the home excessive.

With that, the Ninth Circuit reversed the district court’s grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry
and excessive force.

Excellent decision.

Emergency Blood Draws

Image result for hospital airlift

In State v. Inman, the WA Court of Appeals held that a warrantless blood draw was proper under exigent circumstances where: (a) the injury collision occurred in a rural area; (b) there is spotty phone service; (c) a search warrant takes 30-45 minutes to create; and (d) helicopters airlifted the DUI suspect to a hospital. A search warrant is not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.

BACKGROUND FACTS

In May 2015, Inman and Margie Vanderhoof were injured in a motorcycle accident on a
rural road. Inman was the driver of the motorcycle and Vanderhoof was his passenger. Captain Tim Manly, the first paramedic on the scene, observed a motorcycle in a ditch and two people lying down in a driveway approximately 20 to 25 feet away. Captain Manly observed that Inman had facial trauma, including bleeding and abrasions on the face, and a deformed helmet. Based on Inman’s injuries, Captain Manly believed that the accident was a high-trauma incident.

Captain Manly learned from a bystander that Inman had been unconscious for approximately five minutes after the collision before regaining consciousness. Manly
administered emergency treatment to Inman, which included placing Inman in a C-Spine, a device designed to immobilize the spine to prevent paralysis.

While Captain Manly provided Inman with treatment, Sergeant Galin Hester of the Washington State Patrol contacted Vanderhoof, who complained of pelvic pain. Sergeant Hester spoke with Inman and smelled intoxicants on him.

Later, Jefferson County Sheriff’s Deputy Brandon Przygocki arrived on the scene and observed a motorcycle in a ditch with significant front-end damage.  He contacted Inman in the ambulance and, smelling alcohol, asked whether Inman had been drinking and driving. Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

Deputy Przygocki believed he had probable cause to believe Inman was driving under the influence. Helicopters came to airlift Inman and Vanderhoof to the nearest trauma center. Deputy Przygocki knew that preparation of a search warrant affidavit takes 30-45 minutes. There was no reliable cell phone coverage in the rural area. Deputy Przygocki conducted a warrantless blood draw after reading a special evidence warning to Inman informing him that he was under arrest and that a blood sample was being seized to determine the concentration of alcohol in his blood.

There is a process by which a search warrant for a blood draw may be obtained
telephonically and executed by an officer at the hospital to which Inman was being transported. However, this process is problematic and, in the experience of Officer Hester, had never worked in the past.

TRIAL COURT PROCEDURES

Inman was charged with vehicular assault while under the influence and filed a motion to
suppress evidence of the warrantless blood draw. He argued that the implied consent statute authorized a warrantless blood draw but that the implied consent statute was not constitutional, so there was no valid authority for the blood draw. He also argued that the exigent circumstances exception to the warrant requirement did not justify a warrantless blood draw in this case.

In response, the State argued that Inman’s blood was lawfully drawn pursuant to the exigent circumstances exception to the warrant requirement.

The trial court heard testimony from six witnesses, who testified consistently with the
factual findings summarized above. The trial court orally ruled that exigent circumstances justified the blood draw and later entered written findings of fact and conclusions of law.

Inman filed a reconsideration motion. He argued that there was no probable cause for DUI. He also argued that, even assuming that exigent circumstances justified the warrantless blood draw, a warrant was needed to test the blood. The State disagreed.

The trial court denied Inman’s reconsideration motion. The trial court concluded that Deputy Przygocki had probable cause to believe Inman had committed a DUI. In addition, the trial court concluded that the warrantless blood draw was justified under the exigent circumstances exception to the warrant requirement. Finally, the trial court concluded that because the blood was lawfully seized under exigent circumstances, no warrant was required to test the blood. After a stipulated facts trial, the trial court found Inman guilty of vehicular assault. Inman appealed.

COURT’S CONCLUSIONS AND ANALYSIS

  1. The Arrest Was Supported by Probable Cause.

The Court of Appeals reasoned that under both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution, an arrest is lawful only when supported by probable cause. Probable cause exists when the arresting officer, at the time of the arrest, has knowledge of facts sufficient to cause a reasonable officer to believe that an offense has been committed. Whether probable cause exists depends on the totality of the circumstances.

Here, Deputy Przygocki had probable cause to believe Inman had committed a DUI. When Deputy Przygocki arrived on the scene, he observed a motorcycle in a ditch with significant front-end damage and, after running the license plates, knew the vehicle belonged to Inman. Deputy Przygocki learned from Sergeant Hester that Inman was in the ambulance and smelled of alcohol. Deputy Przygocki then contacted Inman in the ambulance, and Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

“Based on these facts, Deputy Przygocki knew that Inman was driving the motorcycle after drinking alcohol when he crashed. This knowledge is sufficient to cause a reasonable officer to believe that Inman was driving a motor vehicle under the influence of alcohol,” said the Court of Appeals.

2. Exigent Circumstances Supported a Warrantless Blood Draw.

The Court of Appeals reasoned that a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution, unless an exception to the warrant requirement authorizes the search. Drawing a person’s blood for alcohol testing is a search triggering these constitutional protections. A warrantless search is allowed if exigent circumstances exist.  The exigent circumstances exception to the warrant requirement applies where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.

“The natural dissipation of an intoxicating substance in a suspect’s blood may be a factor in determining whether exigent circumstances justify a warrantless blood search, but courts determine exigency under the totality of the circumstances on a case-by-case basis.”

The Court of Appeals held that under the circumstances, obtaining a warrant was not practical. Inman and Vanderhoof were both injured from a motorcycle accident that resulted in significant front-end damage to the motorcycle, which was found in a ditch. Both Inman and Vanderhoof received emergency medical services, and Inman was receiving treatment for possible spine injuries. At the time of the blood draw, helicopters were coming to airlift Inman and Vanderhoof to the nearest hospital. It would have taken at least 45 minutes to prepare and obtain judicial approval for a search warrant. Deputy Przygocki lacked reliable cell phone coverage in the rural area, so obtaining a telephonic warrant may have been a challenge.

CONCLUSION

The Court of Appeals concluded that the trial court did not err in denying Inman’s suppression motion. First, there was probable cause to arrest Inman for DUI. Second, exigent circumstances existed to authorize a warrantless blood draw. Third, the implied consent statute does not bar a warrantless search under exigent circumstances. Finally, a legal blood draw under the exigent circumstances exception allows testing of the blood without a warrant when there is probable cause to arrest for DUI.

My opinion? Exigent circumstances are one of many arguments that the government uses to get around search warrant requirements. Contact my office if you, a friend or family member face criminal charges involving DUI, blood draws, or exigent circumstances which arguably circumvent the need for officers to obtain search warrants. In difficult cases like the one described above, competent legal counsel is definitely needed to protect constitutional rights against unlawful search and seizure.

Don’t Search My Tent!

Image result for police search tent homeless

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

BACKGROUND

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

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

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

COURT’S ANALYSIS AND CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

Protective Sweeps of Homes

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In State v. Chambers, the WA Court of Appeals decided (1) the police’s “protective sweep” of the defendant’s home was improper because the defendant was arrested outside his home and the officers did not have specific facts that other armed individuals might be inside the defendant’s home, and (2) the defendant’s 3.5 Motion to Suppress statements made to police was rightfully denied because police scrupulously honored the defendant’s Fifth Amendment invocation of his right to remain silent.

In this case, defendant Lovett Chambers was drinking at the Feedback Lounge, a neighborhood bar in West Seattle that he frequented. Chambers was a convicted felon of African-American descent who moved to Seattle in 1989, worked in the construction industry, obtained degrees in computer science and started an IT business. In 1992, he got married and later purchased a house in West Seattle with his wife. A few years later, Chambers asked his wife to buy him a Colt .45 caliber semiautomatic handgun. She did so, apparently unaware that he was a convicted felon.

On the night of the incident, Mr. Chambers had numerous drinks at the Feedback Lounge. He carried and concealed his .45 pistol.   At some point, two Caucasian men entered the bar and began drinking. The gentlemen did not know Mr. Chambers. Later, all of the gentlemen departed the bar simultaneously and walked to their respective vehicles which were parked nearby each other in the parking lot.

For reasons unknown, words were exchanged between Chambers and the two gentlemen, who apparently uttered racial epitaphs to each other, Mr. Chambers, or both. One of the gentleman – Michael Travis Hood – pulled a shovel from his vehicle; apparently to defend himself from Mr. Chambers. However, Chambers shot Mr. Hood three times with his .45 pistol. Chambers walked away, got into his car and drove home in his BMW.

Mr. Hood died from lethal gunshot wounds to his back.

Seattle police arrested Chambers at his home at 10:49 p.m. Officer Belgarde read Chambers his Miranda rights at 10:51 p.m. Chambers smelled of alcohol. He was “swaying,” had trouble balancing, slurred his words, and was argumentative. Officer Galbraith drove Chambers to the precinct. Officers obtained a warrant to search Chambers’ home and seized a loaded .45 caliber handgun, a spare magazine, and the BMW keys. The police impounded the BMW. Later, officers interrogated Chambers and obtained numerous incriminating statements regarding the shooting.

The State charged Chambers with murder in the second degree of Hood while armed with a deadly weapon. Chambers asserted a claim of self-defense. Before trial, Chambers filed a CrR 3.6 motion to suppress the evidence seized from his house and the statements he made. The court denied the motion to suppress the evidence seized from the house. The court concluded the police “were authorized to enter the house to conduct a protective sweep to ensure their safety.” The court also denied the motion to suppress Chambers’ statements to police and reasoned his “right to remain silent was scrupulously honored” under Michigan v. Mosley.

The jury found Chambers guilty of the lesser-included offense of manslaughter in the first degree. By special verdict, the jury found Chambers was armed with a firearm at the time he committed the crime. The court imposed the low-end standard range sentence of 78 months plus the mandatory consecutive 60-month firearm enhancement. Chambers appealed.

  1. Evidence Seized from the House Was Obtained Through a Unlawfully Conducted “Protective Sweep,” However, The Trial Court’s Decision to Deny Chambers’ Suppression Motion Was Harmless Error.

Chambers contends the court erred in denying his motion to suppress the evidence the police seized from his house: the Colt .45, a magazine clip with .45 caliber bullets, and the keys to the BMW.

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates that one of the narrow exceptions to the warrant requirement applies. One recognized exception to the warrant requirement is a “protective sweep” of the home. The court further reasoned that under Maryland v. Buie the U.S. Supreme Court describes a protective sweep as a limited cursory search incident to arrest and conducted to protect the safety of police officers or others.

The Court of Appeals decided the trial court erred in concluding the police had the authority to conduct a protective sweep of Chambers’ house. First, a warrantless search of “spaces immediately adjoining the place of arrest” without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home.

Here, the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress:

“The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse. The front door was open after the arrest and the police could see Sara was sitting on the living room couch watching television and remained in the living room.”

However, the Court of Appeals also ruled that the verdict would have been the same absent the trial court’s error. Chambers testified he acted in self-defense when he shot Hood with the Colt .45. Chambers admitted that he parked his BMW in front of the Beveridge Place Pub on January 21, that he kept a .45 caliber gun under the passenger seat of the BMW, and that he used the Colt .45 to shoot Hood near Morgan Junction Park. For these reasons, the trial court’s decision to deny Chamber’s motion to suppress was harmless error.

2. Chamber’s Incriminating Statements Are Admissible.

On appeal, Mr. Chambers asserts the detectives did not “scrupulously honor” his Fifth Amendment right to remain silent. The court reasoned that the Fifth Amendment provides, in pertinent part, “No person shall be . .. compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the Supreme Court adopted “procedural safeguards” to protect the privilege and held that before questioning an individual in custody, the police must clearly inform the suspect of the following:

That he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Here, the Court of Appeals decided that because the circumstances leading up to the police’s interview with Chambers show the police scrupulously honored Chambers’ right to cut off questioning, the court did not err in denying the motion to suppress the statements Chambers made.

The Court of Appeals reasoned that the record shows the police advised Chambers of his Miranda rights at 10:51 p.m. when he was arrested on January 21. Chambers stated he understood his rights and unequivocally said he did not want to talk to the police. The record establishes the police did not “ask the defendant any questions or persist in repeated efforts to wear him down or change his mind after he invoked his rights.” After he invoked his right to remain silent at 10:51 p.m. on January 21, the police did not question Chambers while at police headquarters. And while driving to Harborview to obtain a blood draw at 3:07 a.m. on January 22, the detectives did not ask Chambers any questions.

Nonetheless, on the way to Harborview, Chambers said he did not want to talk about what happened. While at Harborview, Chambers seemed to have “sobered up.” When they left Harborview approximately 45 minutes later, Detective Steiger advised Chambers of his Miranda rights again. Chambers stated he understood his rights and did not invoke the right to remain silent.

With that, the Court of Appeals concluded the undisputed facts support the conclusion that the right to cut off questioning was scrupulously honored.

The Court affirmed the jury verdict.

My opinion? The police should have advised Mr. Chambers of his Ferrier warnings, a topic which I have blogged many times. Ferrier warnings must be given if police officers seek to enter the home to conduct a warrantless search for evidence of a crime or contraband. Still, even if Ferrier warnings were given and Mr. Chambers denied the police entry into his home, his incriminating statements to police ultimately assigned harmless error to the unlawful search.

“Knock & Announce” Was Too Short.

Image result for cops break down door

In State v. Ortiz, the WA Court of Appeals Division III held that police violated a defendant’s rights when they forced entry into his home after waiting only 6-9 seconds of their “knock and announce” during the early morning.

In late July 2011, Wapato Police Sergeant Robert Hubbard viewed the backyard of the defendant’s property from the vantage point of a cooperative neighbor. He saw two marijuana plants. Sergeant Hubbard was granted a search warrant for the property.

on August 11, 2011, at approximately 6:4 7 a.m., Sergeant Hubbard and 11 other police officers executed the search warrant at the property. He knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Hearing nothing inside the home, the officers breached the front door and entered the home.

Upon searching the property, the officers found 41 marijuana plants in various stages of growth and other evidence of a grow operation. Mr. Ortiz was eventually charged with one count of manufacture of a controlled substance, one count of involving a minor in an unlawful controlled substance transaction, and several other counts not relevant on appeal.

At the end of trial, the jury found Mr. Ortiz guilty.

On appeal, Mr. Ortiz argued he received ineffective assistance of counsel because his defense attorney failed to challenge the execution of the search warrant for failure to comply with the knock and announce rule.

EFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals began by explaining that effective assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. First, the defendant must show he received deficient representation. Second, the defendant must show he suffered prejudice as a result of the deficient performance.

“KNOCK & ANNOUNCE” RULE.

Next, the court explained the “knock and announce” rule. The Fourth Amendment to the United States Constitution requires that a non-consensual entry by the police be preceded by an announcement of identity and purpose on the part of the officers. This is part of the constitutional requirement that search warrants be reasonably executed.

In WA State, the parallel requirement of article I, section 7 of the Washington Constitution is codified in RCW 10.31.040. It states, “To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other enclosure, if, after notice of his or her office and purpose, he or she be refused admittance.”

The Court explained that in order to comply with the “Knock & Announce” statute, the police must, prior to a non-consensual entry, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance. The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a ‘waiting period,’ often linked to whether the police officers are refused admittance. Strict compliance with the rule is required unless the State can demonstrate that one of the two exceptions to the rule applies: exigent circumstances or futility of compliance. Finally, the proper remedy for an unexcused violation is suppression of the evidence obtained by the violation.

Here, the only disputed issue was whether the police waited long enough before they broke down the door. The answer to this question depends upon the circumstances of the case.

The Court elaborated that the reasonableness of the waiting period is evaluated in light of the purposes of the rule, which are: ( 1) reduction of potential violence to both occupants and police arising from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant’s right to privacy.

Here, the Court believed the waiting period of 6-9 seconds was unreasonable:

“In this case, due to the early hour of the search, the occupants were foreseeably asleep. Six to nine seconds was not a reasonable amount of time for them to respond to the police, and thus no denial of admittance can be inferred. Even Sergeant Hubbard admitted it would not be a surprise that sleeping occupants would be unable to respond in that amount of time. In addition, the purposes of the rule were not fulfilled due to the property damage done by battering in the door. The police did not comply with the rule.”

Although the State presented cases where the “knock and announce” rule was adhered to after police officers breached entry quickly after announcing, the Court nevertheless reasoned that in each of those cases the defendants were both present and awake. But here, the officers did not have any indication the home’s occupants were present or awake.

Because the police violated the knock and announce rule, and there is no legitimate strategic or tactical reason for failing to challenge the search, counsel was deficient for not moving to suppress the evidence. This deficiency, reasoned the court, prejudiced the defendant.

The Court concluded that Mr. Ortiz established that he was deprived of his constitutional right to effective assistance of counsel. The court reversed his convictions and remanded the case back to the trial court with directions to suppress the fruits of the illegal search.

My opinion? Excellent decision. Search and seizure issues like this are incredibly interesting. For more information on the case law surrounding these issues please review my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

State v. Martines: WA Supreme Court Finds Defendant Guilty of DUI on Blood Test Case

Bad news.

In State v. Martines, the Washington Supreme Court reversed the WA Court of Appeals Division I. I blogged about this case last year in State v. Martines: More Good Caselaw on Blood tests Taken After DUI Arrests. There, the WA Court of Appeals version of State v. Martines held that the blood test performed on Martines was an unlawful warrantless search. The Court of Appeals also reasoned that drawing blood and testing blood constitute separate searches, each of which requires particular authorization, and that the warrant here authorized only a blood draw.

The original Martines opinion appeared strong. It was rooted in the United States Supreme Court’s decision in Missouri v. McNeely; which requires police officers to obtain search warrants for blood draws in DUI cases when exigent circumstances do not otherwise exist. It also followed Washington State legalizing marijuana, thus necessitating stronger regulations and monitoring of blood tests performed during DUI investigations.

The WA Supreme Court decided differently in a short, scathing opinion signed by all justices.

First, the Court held that a warrant authorizing the testing of a blood sample for intoxicants does not require separate findings of probable cause to suspect drug and alcohol use so long as there is probable cause to suspect intoxication that may be caused by alcohol, drugs, or a combination of both.

Second, the Court  further held that the search warrant lawfully authorized testing Martines’s blood sample for intoxicants because it authorized a blood draw to obtain evidence of DUI. In other words, the search of Martines’s blood did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted and tested for intoxicants anyway.

My opinion?

Bad decision. I’m amazed the WA Supremes didn’t discuss Missouri v. McNeely at all. Not once. McNeely profoundly and significantly evolved search and seizure law concerning blood draws in DUI investigations. Indeed, McNeely was the underpinnings for Division One Court of Appeals case State v. Martinez. Yet the WA Supremes ignore McNeely as if it didn’t exist. Ignoring case precedents violates stare decisis, plain and simple.

Hopefully, this case gets appealed to the U.S. Supreme Court for further review.

 

State v. Wisdom: Unlawful Search of Zipped Shaving Kit Bag

Interesting opinion. In State v. Wisdom, the WA Court of Appeals Division III decided the removal and warrantless inspection of a zipped shut shaving kit bag found in the front seat of a stolen vehicle the defendant was driving was not a lawful search incident to arrest because  the defendant sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. The methamphetamine found in the zipped shut shaving kit is not lawful pursuant to the impound inventory doctrine, as unzipping the kit exceeded the lawful scope of an impound.

Defendant Heath Wisdom drove a Chevrolet pickup truck with an ATV in its back. Someone earlier reported both vehicles as stolen. Yakima County Sheriff Deputy Nate Boyer, while on patrol, passed the pickup, and Boyer’s automated license plate reader identified the pickup as stolen. Officer Boyer pulled Wisdom over and arrested him for possession of a stolen vehicle. Boyer handcuffed Wisdom, searched his body, and escorted him to the patrol vehicle. Officer Boyer found on Wisdom’s body a pipe that Wisdom admitted he used for smoking methamphetamine.

Deputy Nate Boyer advised Heath Wisdom of his Miranda rights. Officer Boyer asked if there were drugs in the truck, and Wisdom replied that methamphetamine lay on the front seat. Officer Boyer looked inside the cab of the truck and saw filters, some cleaner, and a black “shaving kit type” bag. Officer Boyer concluded that the bag contained the methamphetamine. The toiletry bag was closed, but Boyer spied money through the mesh side of the bag.

After photographing the truck, Deputy Boyer removed the bag from the vehicle, opened it, and found methamphetamine, cocaine, ecstasy, heroin, drug paraphernalia, and two thousand seven hundred dollars in cash. Heath Wisdom told Deputy Boyer that he owned the black bag. Deputy Boyer had not asked Wisdom ifhe owned the black bag before searching inside the bag.

Deputy Boyer never obtained a warrant for his search, nor did he request Heath Wisdom’s consent before opening the black bag. Law enforcement impounded the truck and ATV, since the legal owner could not be located.

The State of Washington charged Heath Wisdom with three counts of Possession of a Controlled Substance in violation of RCW 69.50.4013(1) (cocaine, ecstasy, and heroin) and one count of Possession of a Controlled Substance with Intent to Deliver under RCW 69.50.401(1) (methamphetamine). Wisdom moved under CrR 3.6 to suppress all evidence found in the black toiletry bag. However, the trial court denied Heath Wisdom’s motion to suppress. The WA Court of Appeals accepted review of this case.

First, the Court reasoned that the search incident to arrest exception to the warrant requirement did NOT excuse police from obtaining a search warrant before unzipping and perusing the inside of the shaving kit bag. The court’s opinion was quite lengthy in explaining the need for society to trust police, and that doing so required officers to obtain search warrants in cases like this, and that failure to do so violates a defendants rights under article I, section 7 of the WA Constitution as well as the Fourth Amendment to the U.S. Constitution.

The Court emphasized how the caselaw treats “luggage and other closed packages, bags, and containers” as unique for purposes of police searches. Washington courts recognize an individual’s privacy interest in his closed luggage, whether locked or unlocked. Indeed, the Court gave a very colorful analyses on this subject:

A person does not rummage through a woman’s purse, because ofsecrets obtained therein. A man’s shaving kit bag can be likened to a woman’s purse. The kit bag could obtain prescription drugs, condoms or other items the owner wishes shielded from the public. The bag is intended to safeguard the privacy of personal effects. Literature, medicines, and other things found inside a bag may reveal much about a person’s activities, associations and beliefs.

The Court further reasoned that Washington allows a few jealously and carefully drawn exceptions to the warrant requirement, which include exigent circumstances, searches incident to an arrest, inventory searches, plain view searches, and Terry stops. Furthermore, under Arizona v. Gant, a warrantless vehicle search incident to arrest is authorized when the arrestee would be able to obtain a weapon from the vehicle or reach evidence ofthe crime of arrest to conceal or destroy it. Here, Heath Wisdom sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. He lacked access to the bag.

Furthermore, under State v. Snapp, the Court reasoned the WA Constitution disapproves expansive application of the search-incident-to arrest exception to the period of time after the arrestee is secured and attendant risks to officers have passed. When a search can be delayed without running afoul of concerns for officer safety or to preserve evidence of the crime of arrest from concealment or destruction by the arrestee, and does not fall within another applicable exception, the warrant must be obtained. The police officer can prevent destruction of evidence by holding the bag as a sealed unit until obtaining a warrant.

Finally, the Court ruled that the police officer’s inventorying of the pickup’s contents did NOT excuse the need to obtain a search warrant. Inventory searches, unlike other searches, are not conducted to discover evidence of crime. Although a routine inventory search does not require a warrant, a police department policy should not, however, justify an unconstitutional search. The permitted extent of an inventory search pursuant to police department policy must be restricted to effectuating the purposes that justify the exception warrant clause.

In conclusion, the Court of Appeals held the warrantless search inside of Mr. Wisdom’s black bag was not justified by either a search incident to arrest or an inventory search. The court reversed the trial court’s denial of Mr. Wisdom’s motion to suppress evidence, reversed his four convictions, and dismissed all charges filed against him.

Good opinion.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

State v. Vanness: Unlawful Search of a Lockbox Inside a Backpack.

Heavy Duty medication Lockbox with Combination (internal dimensions: 5.75" H x 8.75" W x 7.50" D)

In State v. Vanness, the WA Court of Appeals Division I decided that the warrantless search of a locked box found inside a backpack that the defendant was wearing at the time of arrest violated both the Fourth Amendment and Washington Const. art. I, § 7.

Defendant VanNess was arrested for having outstanding warrants in Everett, WA. When arrested, VanNess was wearing a backpack and carrying a bag. A police officer removed the backpack and asked permission to search it. VanNess did not respond. Everett Police Department had a policy requiring officers to search backpacks for dangerous items. Following that policy, officers searched VanNess’s backpack and found knives. They also found a small box with a combination lock.

The police officer used a flathead screwdriver to pry open the box. He looked inside. Although he did not see any dangerous items, he saw a scale and small plastic “baggies” and smelled vinegar, which he associated with heroin. The box was delivered to the Everett Police Department’s property room.

Police obtained a warrant to search the box. They found suspected methamphetamine and heroin, a digital scale, a glass pipe, and several plastic baggies. The Prosecutor charged VanNess with Possession of Heroin with Intent to Deliver and Possession of Methamphetamine with Intent to Deliver. Both crimes are Class B felonies. The trial court denied VanNess’s motion to suppress. At trial, the court admitted the evidence. A jury found VanNess guilty of all charges. VanNess appealed.

A warrantless search is per se unreasonable, unless the State can prove a “carefully drawn and jealously guarded exception” applies. These exceptions include a search incident to arrest and an inventory search. If an exception does not apply, a warrantless search is illegal and the exclusionary rule prevents the State from presenting the illegally seized evidence. Here, the defendant argued that the inventory search of his lockbox violated his Constitutional rights.

The Court of Appeals agreed. It reasoned that although State v. Stroud and State v. Valdez each involved a locked container found in an automobile, the court’s consideration of the Chimel v. California applies just as well to the facts of our case:

“Where a container is locked and officers have the opportunity to prevent the individual’s access to the contents of that container so that officer safety or the preservation of evidence of the crime of arrest is not at risk, there is no justification under the search incident to arrest exception to permit a warrantless search of the locked container.”

Under Chimel, the Court reasoned that police officers may conduct a warrantless inventory search (1) to protect the arrestee’s property, (2) to protect the government from false claims of theft, and (3) to protect police officers and the public from potential danger. Courts generally uphold inventory searches conducted according to standardized procedures which do not afford police officers excessive discretion and when they serve a purpose other than discovery of evidence.

The Court of Appeals decided that here, an officer’s compliance with an established police procedure does not constitutionalize an illegal search. Similarly, the court rejected the claim that the possibility of a bomb or dangerous firearm in the locked box established a “manifest necessity” to search the box. They reasoned that without exigent circumstances, a legitimate inventory search only calls for noting such an item as a sealed unit. With that the court concluded that neither the search incident to arrest nor the inventory search exception applies to the officer’s initial search of VanNess’s locked box. Therefore, the police unconstitutionally searched the locked box.

My opinion? Good decision. It appears the Court of Appeals announced a new balancing test for some items found on an arrested person at the time of arrest. Basically, if the item to be searched falls within a category that implicates an arrestee’s significant privacy interests, the court must balance the government interests against those individual privacy interests. Only when government interests in officer safety and evidence preservation exceed an arrestee’s privacy interest in the category of item to be searched may it be searched incident to arrest without a warrant.

Good decision.

State v. Rubio: “Exigent Circumstances” Found in Arrest for Possession of Methamphetamine.

In State v. Rubio, the WA Court of Appeals Division III upheld the defendant’s conviction for Possession of Methamphetamine because exigent circumstances existed to seize and search the defendant after it was discovered he had open warrants for his arrest and possibly witnessed a domestic violence incident.

Officers from the Spokane police department responded to a domestic disturbance call and found Ricardo J. Rubio inside the apartment at the reported address. Police ran a check on Mr. Rubio and discovered three outstanding warrants for his arrest. He was subsequently arrested and booked into jail. While being booked, police discovered methamphetamine in Mr. Rubio’s sock. He was convicted of possession of a controlled substance. The judge denied Rubio’s pretrial motion to suppress the evidence. He was later convicted at a bench trial.

Rubio appealed on the argument that he was unlawfully seized because he was merely witnessed the reported DV disturbance. The Court of Appeals, however, disagreed. They reasoned the seizure was lawful under the exigent circumstances exception to the warrant requirement.

Some background is necessary. Generally, warrantless searches are unreasonable per se under the Fourth Amendment to the United States Constitution. However, courts recognize a few carefully drawn exceptions to this rule. The State carries the burden of proving that a warrantless seizure falls into one of these exceptions. A recognized exception to the warrant requirement allows police to seize and search a person without a warrant when justified by “exigent circumstances.”

EXIGENT CIRCUMSTANCES

An officer is allowed to stop a witness under exigent circumstances when (1) the officer has reasonable cause to believe that a misdemeanor or felony involving danger or forcible injury to persons has just been committed near the place where he finds such person, (2) the officer has reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and (3) such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime. The rationale behind the exigent circumstances exception is to permit a warrantless search where the circumstances are such that obtaining a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence.

Here, the court reasoned Mr. Rubio was lawfully seized even though the officer had no search warrant. The officer’s detention of Mr. Rubio was reasonable due to exigent circumstances because it was imperative that the officer quickly locate the injured woman and her assailant.

The court also reasoned the seizure under exigent circumstances was lawful for three reasons. First, the police officer had reason to believe that a crime was just committed at the address involving injury to a person. Second, the officer had reason to believe that each person who was in the apartment, including Mr. Rubio, had knowledge which would aid in the investigation of the crime. Third, the officer’s request for Mr. Rubio’s identification was necessary to determine the true identity of Mr. Rubio. Running the warrant check was needed to verify that Mr. Rubio was the person he claimed to be. Consequently, Officer Kirby’s seizure of Mr. Rubio was lawful under the exigent circumstances exception to the warrant requirement.

My opinion? This is a difficult case to swallow. Sure, Mr. Rubio had warrants for his arrest. And yes, the police can lawfully arrest and incarcerate people for that reason alone. And yes, the authorities regularly find illegal contraband during inventory searches and/or when defendants are booked into jail on warrants.

Still, it’s difficult to accept the notion that citizens can become criminal defendants by merely being at the wrong place at the wrong time; and that merely witnessing an alleged incident can lead one to be seized, searched and charged for a totally different crime than the one police responded to in the first place. Interesting.