Tag Archives: Skagit County Criminal Defense

Credit Card Value

Image result for cancelled credit card

In State v. Sandoval, the WA Court of Appeals held that an access device (credit card) need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner.

BACKGROUND FACTS

Ms. Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it. After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

Eventually, the police found Sandoval and her husband in the stolen vehicle at the address
listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and
searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

At trial, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

The court defined an access device as, “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value. In the same instruction, the court stated, “The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time.

The jury convicted Sandoval on all charges except identity theft in the second degree. The
State dismissed that charge.

Sandoval appealed on the argument that an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 9A.56.010(1) defines “access device” as any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

Here, the Court of Appeals upheld the trial court’s definition containing the phrase “can be
used,” a phrase which is not statutorily defined. It reasoned that under State v. Schloredt, it was irrelevant whether a victim cancelled his or her account prior to a defendant’s arrest in determining whether stolen credit cards were “access devices” under the statute. Similar to the facts in Schloredt, it was irrelevant that the credit cards Ms. Sandoval possessed were cancelled by its lawful owner.

Also, the Court of Appeals rejected Sandoval’s argument that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge.

The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Furthermore, in an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings would have differed.

Here, the Court reasoned that Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

“Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense.”

Therefore, the Court reasoned that Sandoval was not prejudiced by her counsel’s failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

Please contact my office if you, a friend or family member are charged with a crime. Hiring a competent and effective defense attorney is the first and best step toward getting justice.

Washington Crime Report Released

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The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

Please contact my office if you, a friend or family member are charged with a crime. Consultations are free. I provide effective criminal defense for people charged with felonies and misdemeanors. It is extremely important to hire an attorney like myself who is willing to devote significant attention to the case. I say this because people convicted of a crime face more than just criminal penalties. They also face a potential lifelong social stigma, as well as diminished employment, housing and educational opportunities. I proudly represent clients in Skagit and Whatcom County, Washington.

 

Marijuana & Necessity

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In State v. Ruelas, the WA Court of Appeals held that a defendant in possession of more than 40 grams of marijuana who asserts a necessity defense must present a medical expert witness to support the defense.

BACKGROUND FACTS

On November 10, 2015, Sergeant Garcia stopped Mr. Ruelas for speeding. Mr. Ruelas rolled down his window and gave Sergeant Garcia his license and registration. Sergeant Garcia smelled marijuana coming from the pickup truck. He asked Mr. Ruelas about the smell and asked him to roll down his rear window. Mr. Ruelas complied, and Sergeant Garcia saw a large garbage bag containing marijuana. Sergeant Garcia then arrested Mr. Ruelas for felony possession of marijuana.

Mr. Ruelas said he had a medical marijuana card but did not provide one. Sergeant Garcia then read Mr. Ruelas his Miranda rights.

On February 26, 2016, the State charged Mr. Ruelas with one count of possession of marijuana over 40 grams.

On June 13, 2016, the trial court held a CrR 3.5 hearing. The court found that Mr. Ruelas’s initial pre-Miranda statement was the result of a routine processing question and that his additional statements were made either spontaneously and not in response to a question likely to produce an incriminating response. The court denied Mr. Ruelas’s suppression motion. After the court’s ruling, Mr. Ruelas requested a continuance to find an expert witness.

After two more continuances, on October 18, 2016, Mr. Ruelas filed his final witness list. However, the list did not include a medical expert.

On October 25, 2016, trial began. The court addressed motions in limine and questioned Mr. Ruelas about his defense of medical necessity. Mr. Ruelas explained that he was asserting the common law defense of medical necessity, not the statutory defense under the Washington State Medical Use of Cannabis Act. The State objected to the defense on the basis that Mr. Ruelas could not lay a proper foundation without having a medical expert testify. The court agreed, and did not allow testimony from Mr. Ruelas’s expert.

The trial resumed, closing arguments were given, and the jury found Mr. Ruelas guilty. He appealed.

COURT’S ANALYSIS & DISCUSSION

The WA Court of Appeals found that the Necessity defense required medical testimony. It reasoned that a defendant asserting the necessity defense must prove four elements by a preponderance of the evidence. The four elements are: (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize the harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative was available that is as effective as marijuana.

Here, the Court of Appeals reasoned that the defendant was required to show corroborating medical evidence that no other legal drugs were as effective in minimizing the effects of the disease. Furthermore, it reasoned that it made sense that the expert could testify to knowing the qualities of other drugs, not just the personal preference of the defendant.

The Court of Appeals also disagreed with Mr. Ruelas’s arguments that the trial court wrongfully disallowed Mr. Ruelas’s expert witness from testifying. In fact, the Court actually addressed whether Mr. Ruelas himself should be sanctioned for violating the discovery rule that parties must disclose their witnesses well before trial begins:

“A trial court may sanction a criminal defendant under CrR 4.7(h)(7)(i) for failing to comply with discovery deadlines by excluding the testimony of a defense witness.”

Here, however, the trial court did not sanction Mr. Ruelas’s for the late disclosure of his expert witness.

“Our review of the record convinces us that Mr. Ruelas did not act willfully or in bad faith,” said the Court of Appeals. “Mr. Ruelas explained that it was difficult to obtain his mother’s medical records, which Dr. Carter needed to review. Mr. Ruelas also expressed difficulty in communicating with Dr. Carter, who he described as very busy.”

Nevertheless, the Court of Appeals also rejected Ruelas’s arguments that the trial court abused its discretion when it precluded Ruelas’s expert witness from testifying. “Mr. Ruelas does not cite any authority that holds that a trial court abuses its discretion when it precludes an expert disclosed during trial from testifying,” said the Court of Appeals. “We presume there is no authority.”

Car Stop & Purse Search

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In State v. Lee, the WA Court of Appeals held that a passenger’s consent to a search of her purse was not spoiled by police conduct during the traffic stop.

BACKGROUND FACTS

Defendant Ms. Lee was the front seat passenger in a car driven by Mr. Peterman. Detective Tilleson initiated a traffic stop for two traffic infractions. Detective Tilleson asked Peterman for his identification, learned his license was suspended, and arrested him for first degree driving while license suspended or revoked. Peterman consented to a search of the car.

Detective Tilleson told Ms. Lee to step out to facilitate his search of the car. She left her purse inside the car. Detective Tilleson ran Lee’s identification information to determine if she had a driver’s license so she could drive the car if it was not impounded. He learned Lee had a valid driver’s license and a conviction for possession of a controlled substance.

Lee began to pace back and forth near the car. At some point, Detective Fryberg directed Lee to sit on a nearby curb. During a conversation, Lee told Detective Tilleson the purse in the car was hers. Detective Tilleson asked Lee for permission to search her purse, telling her that he was asking “due to her prior drug conviction.” He also gave Lee warnings pursuant to State v. Ferrier that she was not obligated to consent and that she could revoke consent or limit the scope of the search at any time.

Lee consented to the search. When Detective Tilleson asked Lee if there was anything in her purse he should be concerned about, she said there was some heroin inside. Detectives found heroin and methamphetamine in her purse, advised Lee of her Miranda rights, and arrested her for possession of a controlled substance with intent to manufacture or deliver.

Before trial, Lee moved to suppress the evidence obtained from the search of her purse. The trial court denied Lee’s motion to suppress the results of the search of her purse. The court found “the testimony of the detectives involved was more credible than the defendant’s testimony. The trial court also determined that all of Lee’s statements were voluntary and that none were coerced. Finally, the court concluded that Lee validly consented to a search of her purse.

At the bench trial, the judge found Lee guilty as charged. Lee appealed on arguments that she did not validly consent to the search of her purse because the detectives unlawfully seized her.

LEGAL ISSUE

Whether police exceeded the reasonable scope and duration of the traffic stop by asking Ms. Lee’s consent to search her purse while mentioning her prior drug conviction.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals stated that both the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution prohibit a warrantless search or seizure unless an exception applies. Voluntary consent is an exception to the warrant requirement.

“But an otherwise voluntary consent may be vitiated by an unlawful seizure,” reasoned the court of Appeals. “When analyzing a passenger’s consent to search the purse she left in
the car, we start with the traffic stop that led to the search.”

Here, the Court said the Fourth Amendment and WA Constitution both recognize an
investigative stop exception to the warrant requirement as set forth in the landmark U.S. Supreme Court case, Terry v. Ohio. “The rationale of Terry applies by analogy to traffic stops applies by analogy to traffic stops,” said the Court of Appeals.

The Court of Appeals explained that the proper scope of a Terry stop depends on the purpose of the stop, the amount of physical intrusion upon the suspect’s liberty, and the length of time the suspect is detained. A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. “Once that purpose is fulfilled, the stop must end,” reasoned the Court.

Ultimately, the Court found that once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger – here, Ms. Lee – if she consented to a search of the purse she left in the car. The detectives legitimately checked Lee’s identification to determine whether she was a licensed driver and could drive the car from the scene following Peterson’s arrest. And the search of the purse occurred roughly 18 minutes after the traffic stop began.

“We conclude Lee’s voluntary consent to search her purse was not vitiated by police conduct at the traffic stop. Specifically, under the totality of the circumstances, the police did not exceed the reasonable scope and duration of the traffic stop.”

In addition, the Court reasoned that the mention of Lee’s prior drug conviction must also be considered as part of the totality of the circumstances. “Here, there was a single mention of the conviction in passing,” said the Court. “There was no physical intrusion upon Lee.”

With that, the Court of Appeals concluded that the police did not exceed the reasonable scope or duration of the traffic stop under the totality of the circumstances. Therefore, Lee failed to establish that her voluntary consent to search her purse was vitiated by police conduct. Her conviction was affirmed.

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

Many Washington Inmates Are Eligible for Release.

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Excellent article by  reporter Chad Sokol of the Spokesman Review describes how, on any given day, thousands of inmates in Washington jails are eligible to be released based on their likelihood to commit new crimes and show up to court before trial, according to a new report from the state auditor’s office.

Auditors found roughly one-third of the state’s jail inmates are candidates for pretrial services such as electronic monitoring, mental health and substance abuse treatment, and texts and phone calls that remind people of court dates.

The auditors also found the cost of incarceration significantly outweighs the cost of pretrial services, concluding such reforms could save $6 million to $12 million in taxpayer money each year while maintaining public safety.

The audit, published last week, makes no policy recommendations but reaffirms what criminal justice activists have been saying for years: The cash bail system disadvantages the poor and fuels recidivism.

“When defendants cannot afford to pay bail, they remain in jail until the trial. Keeping them in jail is costly to the taxpayers . . . Perhaps more importantly, extended jail time before trial can have significant consequences for defendants, as they become more likely to be convicted, more likely to receive a longer sentence, and less likely to gain and maintain future employment.” ~ WA State Auditor’s Office

According to reporter Sokol, the state auditors examined 2016 jail inmate data using the Public Safety Assessment, a risk-assessment tool created by the Laura and John Arnold Foundation. About half of the 4,700 inmates deemed eligible for release were considered likely to reoffend without monitoring and services, while the rest were considered low-risk.

The auditors specifically examined data from Spokane and Yakima counties, which have made concerted efforts to reduce jail overcrowding and eliminate socioeconomic disparities. The auditors found that defendants given pretrial services reoffended at slightly lower rates than those released on bail, but in Spokane County the difference was not statistically significant.

Defendants released through pretrial services in Spokane County, however, were much more likely to show up to court than those released on bail, the auditors found. Failure-to-appear rates for the two groups were 38 percent and 53 percent, respectively.

The audit accompanies another report, published in February by Washington’s Pretrial Reform Task Force, which makes a range of policy recommendations aimed at safeguarding the presumption of innocence enshrined in the Constitution.

“The use of a pretrial services department can be really helpful in assisting people getting to court or remembering court dates,” said Municipal Court Judge Mary Logan, who co-authored the task force report with state Supreme Court Justice Mary Yu and King County Superior Court Judge Sean O’Donnell.

Logan noted bail is “not supposed to be a punitive measure,” and with few exceptions, court rules require defendants be released before trial. The task force concluded the government – not defendants – should bear the cost of pretrial services.

“Accused persons cannot and should not be required to incur additional costs or debts as a result of their participation in pretrial services,” they wrote.

Spokane County’s criminal justice administrator, Maggie Yates, said the task force report validates the county’s reform efforts funded by the MacArthur Foundation.

My opinion? This is good news. Releasing individuals when it’s appropriate not only makes sense legally, but ethically and financially as well. Individuals facing charges may continue to support their families, pursue and maintain employment, and seek out mental health or substance use treatment while navigating court proceedings. The resulting stability only makes our community safer.

Please contact my office if you have a friend or family member who is incarcerated and facing criminal charges. Under CrR 3.2, judges have options to lower bail or release defendants on their personal recognizance while the charges are pending.

Victim Restitution

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In State v. Romish, the WA Court of Appeals held that a defendant’s obligation to pay a victim’s restitution in possession of stolen property cases is only limited to damage that the State can prove was caused by the defendant’s conduct.

BACKGROUND FACTS

Mr. Romish pled guilty to possession of stolen property of a Bobcat tractor. In his guilty plea statement, Mr. Romish admitted to knowingly possessing stolen property, but he denied altering the condition of any of the property in his possession. He also did not indicate when he came into possession of the stolen property.

At the plea and sentencing hearing, Mr. Romish’s attorney agreed that restitution could be ordered if the State showed a causal connection between the damage to the Bobcat and Mr. Romish’s possession of it, but expressed doubts that the State could establish such a connection. Mr. Romish denied altering the condition of the Bobcat. Counsel also disputed the amount of claimed damages and requested a separate hearing on restitution.

A restitution hearing was held October 12, 2017. The only witness to testify was the owner of the stolen property. He described the damage that was sustained by the Bobcat as a result of the theft. He also explained that the Bobcat had been repainted in a haphazard manner and that a taillight had been broken. Although there did not appear to be any functional damage, the owner had the Bobcat serviced it, just to make sure.

Receipts showed the service, repair and repainting costs totaled $4,897.42. In addition to having the Bobcat repaired and serviced, the owner testified he had to rent replacement equipment during the period that the Bobcat was unavailable for use in his excavation business. Rental fees were incurred not only for the period that the Bobcat was missing as stolen, but also for the time the Bobcat was out of commission for service and repairs. The total rental cost was $4,928.46.

On cross-examination, the property owner denied knowing who stole the Bobcat or
who had repainted it. The owner testified that the paint on the Bobcat was neither fresh
nor wet when it was recovered. And the property owner denied seeing any paint at the
location where the Bobcat was recovered.

After the close of evidence, the trial court ordered Mr. Romish to pay restitution for all costs associated with the disappearance, repair and repainting of the Bobcat. Although the court recognized Mr. Romish had not been convicted of stealing the Bobcat, it nevertheless reasoned it could find at least by a preponderance of the evidence that the damage to the Bobcat had occurred while it was in Mr. Romish’s possession. The total amount of restitution was set at $9,825.88.

Mr. Romish appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals took Mr. Romish’s side. It vacated the trial court’s restitution order and remanded Romish’s matter for a new restitution hearing.

“The law of restitution relies on causation . . .” said the Court of Appeals, ” . . . and that reliance creates a distinction between theft and possession of stolen property.” Furthermore, the Court reasoned that culpability for possession of stolen property does not necessarily include culpability for the stealing of the property. “The actual thief is guilty of a different crime.”

The Court further reasoned that when a defendant has been convicted of possessing—but not the theft of—stolen property, sentencing courts must ensure a true causal connection links the defendant’s conduct to the victim’s losses. The mere fact that property was recently stolen does not permit inferring causation. “Instead, we require more specific evidence tying the defendant’s conduct to the victim’s losses,” said the Court.

Here, the Court held that no such evidence was presented in Mr. Romish’s case:

“Although the Bobcat was found in a barn at Mr. Romish’s residence, there was no evidence of painting supplies or recent painting activities at that location. Nor were there shards of glass or plastic that might signify the tail light had been broken at Mr. Romish’s
residence. In addition, the paint on the Bobcat was not fresh. This suggests that at least some time had passed between the repainting of the Bobcat and the date of its recovery by law enforcement.”

Additionally, the evidence presented at the hearing doidnot link Mr. Romish’s criminal conduct to many of the victim’s claimed damages. “No evidence was presented that might lead one to believe the Bobcat would not have been repainted or the taillight broken ‘but
for’ Mr. Romish’s possession,” said the Court of Appeals. “In like manner, there is no reason to think Mr. Romish’s possession of the Bobcat was the ‘but for’ cause of the victim’s rental fee expenses prior to the offense conduct date of August 23, 2016. Given these circumstances, the order of restitution must be reversed.”

My opinion? This case presented an interesting question regarding causation and damages in a criminal law context. Although the victim’s plight is sympathetic, and although there was substantial evidence that Mr. Romish stole the Bobcat, the Court was correct in its ruling that the State lacked evidence showing that Mr. Romish actually damaged the stolen Bobcat. Theft and property damage require two different levels of proof.

Please contact my office if you, a friend or family member face criminal charges. A defendant’s obligation to pay restitution to the victim of a crime is a huge issue in criminal law. Hiring competent and experienced defense attorney is a step in the right direction.

Report Offers Recommendations on Pretrial Release

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Washington courts have the opportunity, with more information and robust pre-trial services, to safely release citizens who are charged with criminal offenses and awaiting trial, according to a report released today by Washington’s Pretrial Reform Task Force.

Washington’s Pretrial Reform Task Force was launched in June, 2017. Its purpose was to examine factors driving pretrial decisions that lead to high detention rates, and to develop recommendations for improving pretrial justice in Washington.

“Under current practices in Washington, many courts have limited information about an individual when making pretrial release or detention decisions, and have limited pretrial services to offer as an alternative to jail,” the report states.

The final report of the Task Force lists 19 recommendations in three categories — pretrial services; risk assessment; and data collection.

“It is my hope that the report sparks dialogue within our trial  courts on what might be necessary improvements to the pretrial phase of the justice process,” said Washington Supreme Court Justice Mary Yu, Chair of the Washington Supreme Court Minority and Justice Commission, one of three sponsors of the Task Force. “We hope courts will review the recommendations and explore new partnerships   in their local communities to reinforce the constitutional presumption of innocence and our court rules that assume pretrial release. We believe the report will encourage alternatives to incarceration. ”

The Task Force is also headed by the Superior Court Judges’ Association and the District and Municipal Court Judges’ Association.

“There are a number of steps courts can take, with the help of the Legislature and local officials, to improve safety, promote justice and ensure that we have a pre-trial system that is fair and equitable,” said King County Superior Court Judge Sean O’Donnell, past-president of the Superior Court Judges’ Association and member of the Task Force’s Executive Committee.

The report details several major findings:

  • Pretrial Services: Governments should bear the cost of pretrial services rather than the accused: Accused persons cannot and should not be required to incur additional costs or debts as a result of their participation in pretrial services. Pretrial services include, but are not limited to: electronic monitoring, drug and alcohol monitoring, mental/behavioral health treatment, and court reminders.
  • Court Reminders: The available research consistently shows that pretrial court date reminders through texts, emails, mail or phone calls are an effective method to reduce the risk of failure to appear, and should be available to all defendants.
  • Voluntary Service Referrals: Referrals such as mental and/or behavioral health treatment, vocational services, or housing assistance should be offered to assist defendants maintain court attendance and supervision compliance, and prevent re-arrest. Referrals should be individualized, offered voluntarily rather than as a condition of release, and should involve little or no cost to the individual.
  • Stakeholder Involvement: A local stakeholder group can make actionable recommendations to improve the practices and outcomes of the pretrial system, and can ensure the success of reforms by soliciting input from all participants and by making informed decisions as a team, rather than separate and distinct entities.
  • Transportation support: Offering free or subsidized transportation to defendants for court appointments can help ensure low-income people and people with disabilities can attend their court-ordered appointments.

“We know courts are already using pretrial risk assessments across Washington,” said Spokane Municipal Court Judge Mary Logan, co-chair of the Trial Court Sentencing and Supervision Committee and a member of the Task Force’s Executive Committee. “Judges should have all the tools necessary to make informed pretrial release decisions. Courts considering use of risk assessment tools should also plan how to monitor impacts and incorporate evidence-based best practices.”

Membership in the Task Force includes 55 judges, prosecutors, public defenders, bail business owners, court administrators and officials, community members and researchers. The Task Force received training from the national Pretrial Justice Institute through its 3DaysCount Campaign, which is working across the U.S. to encourage evidence-based improvements in pretrial practices.

My opinion? This is good news.

While community safety is a paramount concern for trial judges, defendants are presumed to be released while awaiting trial under Washington Court Rule 3.2. However, pretrial detention nationwide has been on the rise, with many jail populations containing detainees that can be safely released while awaiting their trial date. Pretrial detention can have severe consequences for accused persons, particularly in the areas of employment, housing and family. Unnecessary detention is also costly for taxpayers and communities, and conflicts with Washington’s constitution and judicial branch rules, which establish a presumption of release with the fewest conditions necessary.

Proposed Legislation Makes It Easier to Remove Criminal Convictions.

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Excellent article by Lester Black of the Stranger reports that a proposed state law, HB 1041, would make it easier for people to remove misdemeanors and felonies from their criminal record.
Although certain convictions are already eligible to be vacated, or removed from someone’s record, but this proposed law would greatly expedite the vacation process and expand the types of crimes that are eligible for vacation. An explanation of the bill describes which types of convictions are covered.
Rep. Drew Hansen, a Democrat from Bainbridge who is sponsoring the legislation, said he is supporting the bill so old convictions don’t burden people long after they’ve paid their debts to society.

“This bill makes it easier for people to clear their record when people have truly turned their lives around.” ~Representative Drew Hansen

Also, Rep. Morgan Irwin, a Republican from Enumclaw co-sponsoring the legislation, said the proposed law would give an incentive for people to stay out of the criminal justice system.

“This is about giving people that have… made that mistake a reason to not make another one,” Irwin said at a recent legislative hearing.

According to the Stranger staff reporter Lester Black, the bill would not automatically clear anyone’s criminal record. People would still need to get a judge’s approval for each conviction to be vacated, but the bill would make it easier for people to go through the process and expand the types of criminal convictions that are eligible to be removed from people’s records. Some serious crimes such as second-degree burglary and assault would now be eligible under the proposed law. There is also no official estimate for how many people could take advantage of vacating convictions, according to a financial statement attached to the bill.

King County Prosecuting Attorney Dan Satterberg also spoke in favor of the legislation, noting that the “collateral consequences” a person experiences from a conviction have nothing to do with public safety. Satterberg emphasized that people would still need to convince a judge to vacate their record.

“This is a reward for highly motivated people,” Satterberg said. “We shouldn’t stand in their way, we should encourage that.”

My opinion? This legislation is a step in the right direction. Convictions are crippling. This type of data limits career opportunities, prevents housing, prevents travel and may be used as impeachment evidence should the convicted offender testify in a court hearing.

Seattle Police Accountability Report: More Use of Force Against African Americans

Excellent article by of the Seattle Times reports that Seattle police are using force at low levels but still can’t fully explain why it is used against African Americans at disproportionately higher rates, according to the department’s annual report submitted to the federal judge overseeing court-ordered reforms.

The Seattle Police Department last week filed its 2019 Use of Force report, which shows that the use of force by officers remained “extraordinarily low” last year.

Officers reported using force at a rate of less than one quarter of 1 percent out of the nearly 400,000 incidents to which they responded, the report said. That’s in line with the rate reported a year earlier.

According to Miletich, the report is part of a series to show whether federally-mandated police reforms are being sustained, with an ultimate goal of terminating a court-ordered agreement by 2020. The updates are being provided to U.S. District Judge James Robart, who last year found the city in full compliance with the main terms of a 2012 consent decree with the U.S. Justice Department.

Judge Robart’s ruling triggered a two-year period in which the city must demonstrate that it is maintaining reforms to address allegations of excessive force and issues of biased policing. The city took the lead role in carrying out a self-analysis, although the Justice Department and the court’s monitor, Merrick Bobb, scrutinize the progress.

The police department’s use-of-force reports follow Bobb’s key finding in April 2017 that the department had made a dramatic turnaround. He concluded that overall use of force was down, and that when officers used it, it was largely handled in a reasonable way consistent with department policies.

Still, as in the 2018 report, the new figures show a disparity in the use of force against African Americans. Black males represented 32 percent of cases involving males, up from 25 percent a year earlier. Cases involving black females surged to represent 22 percent of incidents where force was used against females, compared with 5 percent in 2017. African Americans make up about 7 percent of Seattle’s population.

Racial disparity is a “significant ongoing concern” requiring further discussion and analysis within the limited role of law enforcement, the report said.

Yet current sociological and criminal-justice research has not found proven reliable methodology for accounting for all the “multitude of recognized factors” that may combine to result in the disparity, including education, socioeconomic status and family structure, the report said.

“In other words, while numbers can identify a disparity, they cannot explain the disparity,” the report said. At any rate, the police department said it would continue to consult academic experts to learn more, including the possible effects of implicit bias.

Please contact my office if you, a friend or family member had a negative experience which police which turned inappropriately violent. Although police officers have difficult jobs, police misconduct still exists.

Firearms & Terry Stops

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In State v. Tarango, the WA Court of Appeals held that the presence of a firearm in public and the presence of an individual openly carrying a handgun in a “high-risk setting,” are insufficient, standing alone, to support an investigatory stop.

BACKGROUND FACTS

At around 2:00 in the afternoon on a winter day in 2016, Mr. Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who later turned out to be the defendant Mr. Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number. The first officer to respond saw a vehicle meeting Mr. Matthews’s description parked on the east side of the store. He called in the license plate number and waited for backup to arrive. Before other officers could arrive, however, the Suburban left the parking area, traveling west.

The Suburban was followed by an officer and once several other officers reached the vicinity, they conducted a felony stop. According to one of the officers, the driver, Lacey Hutchinson, claimed to be the vehicle’s owner. When told why she had been pulled over, she denied having firearms in the vehicle and gave consent to search it.

After officers obtained Mr. Tarango’s identification, however, they realized he was under Department of Corrections (DOC) supervision and decided to call DOC officers to perform the search.

In searching the area within reach of where Mr. Tarango had been seated, a DOC officer observed what appeared to be the grip of a firearm located behind the passenger seat, covered by a canvas bag. When the officer moved the bag to get a better view of the visible firearm—the visible firearm turned out to be a black semiautomatic—a second firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of ammunition. At that point, officers decided to terminate the search, seal the vehicle, and obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver were recovered when the vehicle was later searched.

The State charged Mr. Tarango, who had prior felony convictions, with two counts of first degree unlawful possession of a firearm. Because Mr. Tarango had recently failed to report to his community custody officer as ordered, he was also charged with Escape from community custody.

Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the traffic stop, arguing that police lacked reasonable suspicion of criminal activity. However, the trial court denied the suppression motion. Later, at trial, the jury found Mr. Tarango guilty as charged. He appealed.

ISSUE

The issue on appeal was whether a reliable informant’s tip that Mr. Tarango was seen openly holding a handgun while seated in a vehicle in a grocery store parking lot was a sufficient basis, without more, for conducting a Terry stop of the vehicle after it left the lot.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that Mr. Tarango’s motion to suppress should have been granted because officers lacked reasonable suspicion that Mr. Tarango had engaged in or was about to engage in criminal activity.

The Court reasoned that warrantless searches and seizures are per se unreasonable unless one of the few jealously and carefully drawn exceptions to the warrant requirement applies.

“A Terry investigative stop is a well-established exception,” said the Court. “The purpose of a Terry stop is to allow the police to make an intermediate response to a situation for which there is no probable cause to arrest but which calls for further investigation . . . To conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop.”

Additionally, the Court of Appeals reasoned that in evaluating whether the circumstances supported a reasonable suspicion of criminal conduct, it reminded that Washington is an “open carry” state, meaning that it is legal in Washington to carry an unconcealed firearm unless the circumstances manifest an intent to intimidate another or warrant alarm for the safety of other persons.

“Since openly carrying a handgun is not only not unlawful, but is an individual right protected by the federal and state constitutions, it defies reason to contend that it can be the basis, without more, for an investigative stop.”

Here, because the officers conducting the Terry stop of the Suburban had no information that Mr. Tarango had engaged in or was about to engage in criminal activity, the officers lacked reasonable suspicion.

Consequently, the Court of Appeals ruled that Tarango’s motion to suppress should have been granted. The Court also reversed and dismissed his firearm possession convictions.

Please contact my office if, a friend or family member face criminal charges. Similar to the excellent defense attorney in this case, experienced attorneys routinely research, file and argue motions to suppress evidence when it is gained by unlawful search and seizure and in violation a defendant’s Constitutional rights.


Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

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

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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