Category Archives: Search Warrant

Drug-Sniffing Dogs

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In United States v. Gorman, the Ninth Circuit Court of Appeals held that the Fourth Amendment was violated when an officer unreasonably prolonged an initial traffic stop and radioed for a drug-sniffing dog after because he thought there were drugs in the car.

BACKGROUND FACTS

In January 2013, a police officer stopped Straughn Gorman on Interstate-80 outside Wells, Nevada for a minor traffic infraction. The officer thought Gorman might be carrying drug money. Acting on this concern, he unsuccessfully attempted to summon a drug-sniffing dog and then prolonged Gorman’s roadside detention, which lasted nearly half an hour, as he conducted a non-routine records check.

Unable to justify searching the vehicle, he questioned Gorman further and finally released him without a citation.

Undeterred, the officer then developed the bright idea of contacting the sheriff’s office in Elko, a city further along Gorman’s route, to request that one of their officers stop Gorman a second time. The first officer conveyed his suspicions that Gorman was carrying drug money, described Gorman’s vehicle and direction of travel, and reported that his traffic stop had provided no basis for a search. “You’re going to need a dog,” he said. A second officer, who had a dog with him, then made a special trip to the highway to intercept Gorman’s vehicle.

The second officer saw Gorman and eventually believed he had found a traffic reason to pull him over. Following the second stop, the second officer performed a series of redundant record checks and conducted a dog sniff. The dog signaled the odor of drugs or drug-tainted currency. On the basis of the dog’s alert, the second officer obtained a search warrant, searched the vehicle, and found $167,070 in cash in various interior compartments.

No criminal charges arising from this incident were ever brought against Gorman. Instead, the government attempted to appropriate the seized money through civil forfeiture. Civil forfeiture allows law enforcement officials to “seize . . . property without any predeprivation judicial process and to obtain forfeiture of the property even when the owner is personally innocent.” Leonard v. Texas, 137 S. Ct. 847, 847 (2017).

Gorman contested the forfeiture by arguing that the coordinated stops violated the Fourth Amendment. He prevailed. The federal district court ordered that his money be returned and also awarded him attorneys’ fees. The Government appealed to the Ninth Circuit Court of Appeals.

ANALYSIS & CONCLUSIONS

The Court of Appeals (1) affirmed the lower court’s order granting claimant’s motion to suppress evidence seized pursuant to a traffic stop; (2) affirmed the award of attorneys’ fees; and (3) held that the search of claimant’s vehicle following coordinated traffic stops violated the Constitution.

The Court of Appeals held that the first stop of claimant’s vehicle was unreasonably prolonged in violation of the Fourth Amendment. The court reasoned that the Supreme Court has made clear that traffic stops can last only as long as is reasonably necessary to carry out the “mission” of the stop, unless police have an independent reason to detain the motorist longer. The “mission” of a stop includes “determining whether to issue a traffic ticket” and “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” Rodriguez v. United States, 135 S. Ct. 1609, 1615 (2015).

Additionally, the Court held that the dog sniff and search of claimant’s vehicle during the coordinated second vehicle stop followed directly in an unbroken causal chain of events from that constitutional violation; and consequently, the seized currency from the second stop was the “fruit of the poisonous tree” and was properly suppressed under the exclusionary rule.

Finally, the Court held that none of the exceptions to the “fruit of the poisonous tree” doctrine – the “independent source” exception, the “inevitable discovery” exception, and the “attenuated basis” exception – applied to claimant’s case.

Good decision.

Incomplete & Misleading Search Warrant

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In United States v. Perkins, the Ninth Circuit Court of Appeals held police officers must submit copies of explicit images that the officer believes gives probable cause for a search warrant for child pornography to the judge who is considering the search warrant application so the judge can independently determine whether the nude photographs are sexually suggestive.

BACKGROUND FACTS

Canadian Investigation

On December 29, 2012, Charles Perkins, a then-52-year-old citizen of the United States, was traveling through Toronto International Airport on his way home to Washington State after taking a trip to Chile with his wife and mother-in-law. Canadian Border Services Agency(“CBSA”) officers stopped Perkins after learning that he was a registered sex offender. Perkins had a 1987 first-degree incest conviction and a 1990 first-degree child molestation conviction.

A CBSA officer searched the laptop that Perkins was carrying and, in a folder labeled “cperk,” found two images that he believed to be child pornography. A Peel Regional Police (“PRP”) officer also reviewed the images and, based on his review, arrested Perkins for possession of child pornography. CBSA authorities seized the laptop, along with a digital camera and a memory card.

The next day, Canadian police obtained a search warrant and searched Perkins’ luggage. Constable Ullock searched the laptop and found the two images that the CBSA officer had originally discovered.  After reviewing the images, Constable Ullock concluded that they did not constitute child pornography under Canadian law. In his report of the investigation, he describes the two images as follows:

IMAGE #1 Filename 997.jpg Description: This is a Caucasian female that I would estimate to be between the ages of 13 to 15 years of age. The image shows her only from the mid torso up, including her face. The girl appears to be nude and her breasts are clearly visible . . . . In spite of the fact that this girl is under the age of 18, her breasts are not the dominant feature of the image, and there is no obvious sexual purpose to the image. Therefore this image does not meet the Canadian Criminal Code definition of child pornography.

IMAGE #2 Filename 989.jpg Description: This is an image of a Caucasian female that I would estimate to be between the ages of 13 to 14 years of age. This girl is sitting and appears to be taking a picture of herself by holding out a camera with her right arm slightly above her head looking down on her. . . . This girl is completely nude and towards the bottom of the picture a small portion of her vagina can be seen. . . . However in this photo the view of the girls’ [sic] vagina makes it a minor aspect of the photo, and her hair drapes over much of her breasts, which decrease[s] their prominence. Again there is no clear and obvious sexual purpose to the picture, which means it does not meet the Criminal Code of Canada definition of child pornography.

Based on Constable Ullock’s recommendation, the charge against Perkins was dropped on January 10, 2013.

American Investigation

The case was forwarded to Special Agent Tim Ensley of the United States Department of Homeland Security. Agent Ensley received the two images for first-hand review on January 14, 2013. Ensley applied for a search warrant. In his affidavit, Ensley explained that Canadian officers stopped Perkins because of his prior convictions and arrested him after reviewing the images. Also, Ensley’s description of the second image was far different than the Canadian Constable’s:

IMAGE #2 Filename 989.jpg Description: This color image depicts a white female (hereinafter referred to as “child victim”) sitting on what appears to be a bed with one arm stretched out taking a picture of herself. The child victim is completely nude and can be seen in the image from her upper thigh area to the top of her forehead. The child victim’s breasts and genital area are clearly visible. . . . The child victim is young in appearance and appears to be between twelve and fourteen years of age.

Agent Ensley concluded that the second image (hereinafter referred to as the “989.jpg image”) met the federal definition of child pornography. However, his warrant application did not include copies of either image. Also, Ensley failed to state that the charge in Canada had been dropped pursuant to Constable Ullock’s determination that the images were not pornographic. On January 16, 2013, an American magistrate issued the warrant. Officers arrived at his home and confiscated his computers

The Search and Franks Hearing

The search pursuant to the warrant revealed several images of child pornography on Perkins’ computers, and he was charged with one count of receipt of child pornography and one count of possession of child pornography. Perkins moved to suppress the evidence, arguing that the warrant lacked probable cause. Alternatively, Perkins argued that Agent Ensley deliberately or recklessly omitted material facts from the affidavit, entitling him to a Franks Hearing under Franks v. Delaware, 438 U.S. 154 (1978).

For those who don’t know, a Franks Hearing is a hearing to determine whether a police officer’s affidavit used to obtain a search warrant that yields incriminating evidence was based on false statements by the police officer. The district court denied the motion for a Franks Hearing in its entirety.

On June 6, 2013, Perkins conditionally pleaded guilty to one count of receipt of child pornography. The district court sentenced Perkins to an 180-month term of imprisonment. Perkins appealed.

THE APPEAL

The Court of Appeals examined whether the search warrant contained purposefully or recklessly false statements or omissions. To prevail on a Franks challenge, the defendant must establish two things by a preponderance of the evidence: first, that the officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant, and second, that the false or misleading statement or omission was material, i.e., “necessary to finding probable cause. If both requirements are met, the search warrant must be voided and the fruits of the search excluded.

Here, the Court of Appeals held the lower court mistakenly denied Perkins’ motion to suppress. It reasoned that an officer presenting a search warrant application has a duty to provide, in good faith, all relevant information to the magistrate. Here, Agent Ensley omitted from the search warrant application: (1) the fact that Canadian authorities dropped the child pornography possession charge against Perkins because the images were not pornographic; (2) important portions of Constable Ullock’s description of the 989.jpg image; and (3) copies of the images.

“By providing an incomplete and misleading recitation of the facts and withholding the images, Agent Ensley effectively usurped the magistrate’s duty to conduct an independent evaluation of probable cause,” said the Ninth Circuit. Therefore, Agent Ensley omitted relevant information from the affidavit that resulted in the misleading impression that image 989.jpg was unequivocally child pornography.

Furthermore, the Ninth Circuit held the warrant application was unsupported by probable cause; and that his 20-year prior convictions failed to make it more likely that child pornography would be found on Perkins’ home computers.

Finally, the Ninth Circuit reasoned that the two images found in Perkins’ laptop computer did not establishe a fair probability that there was child pornography on Perkins’ home computer in Washington:

“Other than the fact that the subject is nude, the image lacks any traits that would make it sexually suggestive . . . The subject is not posed in a sexual position with, for example, “her open legs in the foreground . . . She is not pictured with any sexual items. She is sitting in an “ordinary way for her age.” Indeed, if the subject were clothed, this would be a completely unremarkable photo. Viewing the image as a whole, we conclude, under the Dost six-factor test, that it does not depict the ‘lascivious exhibition of the genitals or pubic area.'”

With that, the Ninth Circuit reversed the district court’s denial of the motion to suppress evidence obtained pursuant to the search warrant, and vacated Perkins’ conviction. The case is remanded for further proceedings consistent with this opinion.

Good decision.

Independent Blood Tests

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In State v. Sosa, the WA Court of Appeals Div. III decided there is no requirement that an officer performing a blood draw on a DUI suspect must advise the driver that the driver has the right to an independent blood alcohol test.

BACKGROUND FACTS

On March of 2014, defendant Jose Sosa’s vehicle crossed the center line of U.S. Route 12, causing a two-car collision. Mr. Sosa called 911 and law enforcement responded to the scene. On contact, the responding officer noticed Mr. Sosa smelled of alcohol and showed signs of impairment. In response to questioning, Mr. Sosa disclosed that he had some beer earlier but did not provide any specifics. An ambulance transported Mr. Sosa to the hospital.

At the emergency room, a state trooper contacted Mr. Sosa. Again, Mr. Sosa was noted to smell of alcohol and display signs of impairment. The trooper asked Mr. Sosa if he would be willing to do a voluntary field sobriety test. Mr. Sosa did not respond. The trooper then offered to administer a portable breath test (PBT), which would have provided a preliminary indication of Mr. Sosa’s BAC. Again, Mr. Sosa did not respond.

Based on the trooper’s observations, a warrant was obtained to procure a sample of Mr. Sosa’s blood. Three and a half hours after the accident, Mr. Sosa’s BAC was 0.12. Mr. Sosa was arrested and charged with vehicular assault.

Several days after the accident, the driver of the vehicle hit by Mr. Sosa returned to the hospital because of abdominal pain. Doctors performed a lifesaving partial splenectomy. Mr. Sosa’s case proceeded to trial. The jury found Mr. Sosa guilty of vehicular assault via all three of the charged alternatives: ( 1) operating a vehicle in a reckless manner, (2) operating a vehicle while under the influence of intoxicating liquor or drugs, and (3) operating a vehicle with disregard for the safety of others.

On appeal, Mr. Sosa argues evidence of his blood test results should have been suppressed because he was not advised, at the time of the blood draw, of the right to independent testing. Former RCW 46.61.506(6) (2010) stated: “The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer. … ” On this argument, Mr. Sosa alleged his constitutional rights were violated.

COURT’S ANALYSIS

The Court reasoned that cases relied on by Mr. Sosa in support of his right-to-advice argument interpret prior versions of the Revised Code of Washington. The statutes in effect at the time of Mr. Sosa’s offense no longer required advice about independent testing in the context of a blood draw:

“Had Mr. Sosa’s offense taken place prior to the 2013 amendment, he undoubtedly would have been entitled to advice about independent blood testing. But this is no longer so. Our case law addressing the implied consent warning has always been based on statutory principles, not constitutional grounds.”

In short, the Court stated there is no independent constitutional right to such advice. Accordingly, any failure of law enforcement to advise Mr. Sosa about the right to an independent test had no bearing on the State’s evidence or Mr. Sosa’s conviction. With that, the court rejected Mr. Sosa’s challenge to his conviction based on the blood test results.

My opinion? Had Mr. Sosa’s offense taken place prior to the 2013 amendment, he undoubtedly would have been entitled to advice about independent blood testing. But this is no longer so. Washington’s implied consent law changed after the U.S. Supreme Court’s decision in Missouri v. McNeely, which held the taking of a DUI suspect’s blood without a warrant violates the suspect’s rights under the Fourth Amendment to the United States Constitution and the exigency exception to the warrant requirement generally does not apply.

 

 

State v. Froehrich: Unlawful Inventory Search

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

BACKGROUND

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

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

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

ANALYSIS

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

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

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

CONCLUSION

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

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

The “Drug House” Statute

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In State v. Menard, the WA Court of Appeals Division II reversed the lower court dismissal of charges of  Maintaining a Drug Dwelling under RCW 69.50.402.

BACKGROUND

The defendant Rodney Menard owned and lived at his home in Yakima. Menard lived at the home since he was 5 years old. He rented rooms to five individuals, occasionally received methamphetamine from tenants as rent payment, consumed twenty dollars’ worth of methamphetamine per day, and possessed drug pipes. Menard knew his tenants used methamphetamine, but denied knowledge of the use of his home for methamphetamine sales.

The Drug Enforcement Agency (DEA) received complaints of drug traffic from Menard’s home. On July 15, 2015, a DEA confidential informant purchased approximately a gram of methamphetamine at Menard’s home. On July 23, 2015, the DEA Task Force conducted a narcotics search. The front door was unlocked. Rodney Menard and thirteen other individuals were present when law enforcement officers entered the residence. In a basement bedroom, a lady rested on a small couch with a bag of methamphetamine next to her pillow.

Law enforcement officers spoke with Rodney Menard and other residents of the home. When asked if people who visit take drugs, Menard answered: “most people do.” Two renters informed the officers that 10 to 15 different people came daily to the house to use drugs. Menard claimed he unsuccessfully tried to end the heavy traffic at the house. Officers confiscated drug paraphernalia and 25.5 grams of drugs inside the home.

MOTION TO DISMISS

Menard was charged with Maintaining a Drug Dwelling under RCW 69.50.402. He filed a Knapstad motion under arguments that (1) his conduct is unlawful only if the drug activity constituted the residence’s major purpose, and (2) selling drugs was not the primary purpose of the residence. The trial court granted Menard’s motion to dismiss. The State appealed.

LAW & ANALYSIS

The Court of Appeals reasoned that under Washington law, a defendant may present a pretrial motion to dismiss a charge when the State lacks ability to prove all of the elements of the crime. RCW 69.50.402(1), known colloquially as the “Drug House” Statute, declares:

It is unlawful for any person: ( f) Knowingly to keep or maintain any … dwelling, building … or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

Here, Menard argued that he may be found guilty of maintaining a drug dwelling only if he maintains the home for the principal purpose of facilitating the use of controlled substances. However, the Court of Appeals disagreed.

The court reasoned that to convict under the “Drug House” Statute, the evidence must demonstrate more than a single isolated incident of illegal drug activity in order to prove that the defendant “maintains” the premises for keeping or selling a controlled substance.

The Court further reasoned that sporadic or isolated incidents of drug use are not enough to prove criminal conduct. Here, however, there was substantial evidence that people other than Menard used drugs in the house. Apparently, 10 to 15 people each day entered the home to use drugs. When police searched the house, fourteen people, some of whom admitted to use of methamphetamine, occupied the premises. One resident rested methamphetamine near her pillow. Officers found drug devices scattered throughout the home. When asked if people who visit take drugs, Menard answered: “most people do.”

With that, the Court of Appeals reversed the trial court’s dismissal of charges.

“Knock & Announce” Was Too Short.

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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.

Abandoned Cell Phone Searches

In State v. Samalia, the WA Supreme Court held that although cell phone information is protected by the Constitution, the defendant abandoned this privacy interest when he voluntarily left the cell phone in a stolen vehicle while fleeing from police.

Defendant Adrian Sutlej Samalia fled on foot from a stolen vehicle during a lawful traffic stop, leaving his cell phone behind in the vehicle. After Samalia successfully escaped, the police searched the cell phone without a warrant and made contact with one of the numbers stored in the cell phone. That contact led to Samalia’s identification as the owner of the phone and driver of the stolen vehicle.

On these facts, the State charged Samalia with Possession of a Stolen Vehicle. Samalia moved to suppress the cell phone evidence under CrR 3.6, arguing that the officers violated his constitutional rights when they seized and searched his cell phone with neither a warrant nor a valid exception to the warrant requirement.

The State responded that the warrantless search was valid under the abandonment doctrine. The trial court held that Samalia voluntarily abandoned any privacy interest that he had in the cell phone by leaving it in the stolen vehicle, which he also voluntarily abandoned, while fleeing from Office Yates. After denying Samalia’s suppression motion and subsequent motion for reconsideration, the trial court found Samalia guilty as charged in a bench trial.  Samalia appealed to Division III of the WA Court of Appeals. They upheld the trial court’s decision under the abandonment doctrine.

Ultimately, the WA Supreme Court decided the search was lawful and upheld Samalia’s conviction. It reasoned that article I, section 7 of Washington’s Constitution states that “no person shall be disturbed in his private affairs … without authority of law,” and although the WA Constitution embraces the privacy expectations protected by the Fourth Amendment to the United States Constitution – and in some cases, may provide greater protection than the Fourth Amendment – the search was nonetheless lawful under the abandonment doctrine.

ABANDONMENT DOCTRINE

The Court reasoned that the “abandonment doctrine,” a person loses normal privacy interests in their property upon abandoning it. The abandonment doctrine is not rooted in any obligation by law enforcement to find the owner of property. Basically, it allows law enforcement officers to retrieve and search voluntarily abandoned property without implicating an individual’s rights. The court reasoned that in this sense, voluntarily abandoned property is different from lost or mislaid property, in which the owner maintains a privacy interest in the property and the finder may have an obligation to seek out the owner to return the property.

Thus, when an individual flees from law enforcement and leaves a cell phone behind in a stolen vehicle, a trial court may find that the cell phone is no less abandoned than any other item that was also left in the stolen vehicle.

Here, the Court declined to find an exception to the abandonment doctrine for cell phones. Consequently, the WA Supreme Court decided the trial court properly found abandonment under these facts.

In conclusion, the WA Supreme Court affirmed Samalia’s conviction on the grounds that the information derived from the search of Samalia’s cell phone was properly admitted as evidence under the abandonment doctrine.

DISSENTING OPINION

Justice Yu authored the dissenting opinion, which was also signed by Justice Stephens and Justice Sheryl Gordon McCloud. In short, these dissenting justices all agreed that common law doctrines like the Abandonment Doctrine cannot be applied mechanically to new technology. Second, the abandonment doctrine applies to personal property generally and not digital technology. Third, digital cell phone data remains a private affair, even if the cell phone itself has been voluntarily abandoned.

“The people of Washington are entitled to hold safe from government intrusion the unprecedented wealth of personal information accessible through a cell phone, even if the phone itself has been voluntarily abandoned. If government officials discover a cell phone and want to search its digital data for evidence of criminal activity, they may seize and secure the cell phone to preserve any evidence it may contain, but they must obtain a warrant before searching its digital data. Because the police did not obtain a warrant here, the search was unlawful and its fruits should have been suppressed. I respectfully dissent.”

My opinion?

Last year, I discussed this case when the Court of Appeals decided it in my blog post titled, State v. Samalia: Search of Abandoned Cell Phone is Lawful. Again, I disagree with the court’s majority decision in this case. The trial court should have suppressed the cell phone search back in the beginning of this case. Under these circumstances, the abandonment doctrine is simply not the proper legal vehicle to permit a cell phone search. Using this doctrine leaps too far in the wrong direction. Kudos to the dissenting judges in this case. Although the decision was not deeply divided (6-3), the dissenters got it right. Officers need to get search warrants. Period.

My advice to the general public?

Never leave incriminating evidence on your cell phone. No pictures, videos, nothing. A lost phone could now be considered “abandoned” and searchable by authorities.

Refusing Field Sobriety Test is Admissible as “Consciousness of Guilt.”

In State v. Mecham, the WA Supreme Court decided that Prosecutors in DUI trials may admit evidence that a defendant is declining field sobriety tests as evidence of consciousness of guilt.

FACTS

In 2011, Officer Campbell made a traffic stop of defendant Mark Tracy Mecham. Although Mecham’s driving showed no signs of intoxication, Mecham smelled of intoxicants and had slurred speech. The officer asked Mecham to perform voluntary field sobriety tests (FSTs), which would have involved Officer Campbell’s observing Mecham’s eye movements and ability to walk a straight line and stand on one leg. Mecham refused.

At trial, Mecham moved to suppress his refusal to perform the FSTs. Typically, trial courts grant this defense motion. In Mecham’s case, however, the trial court denied his motion and ruled that even if FSTs were a search, probable cause supported the search. Mecham’s refusal was admitted to the jury as evidence to support the Prosecutor’s theory that Mecham exhibited “Consciousness of Guilt.” The jury found Mecham guilty of DUI.

Eventually, Mecham’s case was appealed to the WA Supreme Court. He argued that his right to be free from unreasonable searches was violated when the trial court admitted evidence of his refusal to undergo FSTs.

THE DECISION

Unfortunately for Mecham, the WA Supreme Court disagreed and upheld his DUI conviction. In a deeply divided decision, the Court held that while a FST is a seizure, it is not a search either under article I, section 7 of the Washington Constitution or under the Fourth Amendment to the United States Constitution. The State may, therefore, offer evidence of a defendant’s refusal to perform FSTs. Field sobriety tests may only be administered when the initial traffic stop was supported by reasonable suspicion and the officer has reasonable suspicion that the defendant was driving under the influence.

The lead majority opinion was authored by Justice Wiggins. Justice Fairhurst concurred in part and dissented in part. Justice Fairhurst would prohibit the administration of FSTs once the defendant is already under formal arrest for an offense other then DUI. Justice Johnson dissented on the grounds that the defendant had been told by the officer who administered the FSTs that they were voluntary. Finally, Justice Gordon McCloud dissented on the grounds that FSTs are searches.

My opinion?

I agree with Justice McCloud’s dissent. Here’s a portion:

“An FST can reveal information about a person’s body and medical history that are unquestionably private in nature. According to the National Highway Traffic Safety Administration (NHTSA), in addition to possible inebriation, FSTs can reveal a head injury, neurological disorder, brain tumors or damage, and some inner ear diseases. These conditions are not necessarily observable in the subject’s normal public behavior; they may well be revealed only by the special maneuvers the subject is directed to perform during the FST. Indeed, if an FST did not reveal information beyond what is readily observable by the general public, there would be no need to administer it in the first place. I therefore conclude that FSTs are searches under article I, section 7 of our state constitution.”

FSTs are a search. Period. Clearly, Officers who ask citizens to performs FSTs are seeking evidence of DUI. Because FSTs are a search, Mecham had a constitutional right to refuse to perform them unless (1) the officers had a warrant, or (2) an exception to the warrant requirement applied. Here, the Officer neither possessed or obtained a warrant for a blood test. Nor did the Officer even attempt to get a warrant.

Even more concerning, Prosecutors now have free reign to spin a citizen’s refusal of FSTs as “consciousness of guilt.” That’s unfair. Indeed, there’s a lot of debate in criminal law on whether FSTs accurately and/or scientifically indicate whether someone is DUI. These tests are, quite simply, balancing and memory tests administered under extremely uncomfortable and stressful conditions. These tests – which more of less reflect bad balance, lack of memory and preexisting health issues – simply do not accurately depict intoxication.

AAA Questions Marijuana DUI Laws

According to a news article from the Chicago Tribune, recent studies conducted by car insurer AAA find that blood tests given to drivers suspected of marijuana DUI have no scientific basis.

A handful of studies released by the AAA Foundation for Traffic Safety found that drivers can have a low level of THC, the active ingredient in marijuana, in their blood and be unsafe behind the wheel, while others with relatively high levels may not be a hazard. Below are the individual studies accompanied by capsule summaries comprising the effort:

“If you’ve had marijuana whether it’s medicinal or otherwise, don’t drive,” said AAA Chicago spokeswoman Beth Mosher, “It’s really that simple.”

The studies examined the results of more than 5,300 people nationwide who were arrested for driving under the influence of marijuana, 600 of whom tested positive for THC only, while the others had THC and other substances. This is because marijuana isn’t metabolized by the body in the same way as alcohol. The researchers compared the Drug Recognition Expert (DRE) exam results of 602 drivers that only had THC present in their blood at the time of arrest to those of 349 volunteers that took the test drug-free and sober. Ultimately, the degree to which a driver is impaired by marijuana use depends a lot on the individual, the foundation said.

The data appears confusing because AAA also looked at Washington – one of the first states to legalize marijuana – and found fatal crashes involving drivers who recently used marijuana doubled.

“ In most recent data 1 in 6 drivers who are involved in a fatal crash there had marijuana in there system,” Mosher  said.  “And as more and more states look at legalizing marijuana we see this as a concerning trend.”

Nevertheless, AAA is sending the message that the legal limits established for marijuana are arbitrary. A handful of states have moved to specify the maximum amount of active THC — the main chemical in marijuana — that drivers can have in their system. But AAA says that doesn’t work.

“We think those are meaningless,” said Mosher. “They are not backed by any science. One person can have one limit of THC in their blood and be significantly impaired and others can have that same limit and not be impaired at all,” Mosher said.

Many in law enforcement and AAA say that officer recognition of impaired drivers is really the only what to determine whether someone is too high to drive.  Of course all of this a public safety concerns as pot becomes legal across the country.

“Community Caretaking” Search Upheld as Lawful

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

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

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

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

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

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

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

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

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

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

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

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

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