Monthly Archives: December 2009

Proposed Law Changes To Prevent Future Police Murders

I read this topic with great interest.

In the wake of the Lakewood police officer tragedy, Representative Mike Hope (R-Lake Stevens) is drafting legislation to prevent serial offenders like Maurice Clemmons from having an opportunity to harm others. Hope, a Seattle police officer who works patrol when not in session, said this was at the top of his legislative agenda.

The three-part legislation will include two proposed changes to the Washington State Constitution and a sentencing enhancement, proposals he says would have prevented the murders of four Lakewood police officers Nov. 29.

The first bill would remove bail opportunities for dangerous individuals who have committed two felonies and are charged with a possible “third strike” felony offense.   The second bill would prevent defendants from receiving bail if they commit another violent crime in Washington and are proven dangerous to the public.  The third bill would require a sentencing enhancement against those who aid and abet criminals who are not bailable.

A change to the state constitution requires a two-thirds approval in both the House and the Senate and simple majority approval from voters.

My opinion?  Like everyone, I’m deeply saddened with the deaths of the four Lakewood Officers.  Their murders were completely meaningless and senseless.  I’m also disturbed the defendant’s friends/relatives assisted him.

That said, I question whether altering the WA Constitution and chipping away at a defendant’s rights is the answer to preventing similar murders from happening in the future.  I’m a staunch defender of constitutional rights.  Indeed, if I were to wrap an American flag around myself and proclaim my patriotism out loud, then THAT is the platform I stand upon: vigilant, aggressive protection of individual rights against a tyrannical government.

The proposed legislation is strong medicine.  Too strong.  At worst, defendants can be held without bail.  This is disturbing.  Under court rules, judges may hold defendants without bail only if the charge they face is a capital charge; like murder.  Additionally, judges must impose the least restrictive release alternatives to defendants.  Disallowing bail and indefinitely holding defendants in jail laughs in the face of “least restrictive alternative.” Finally, holding defendants without bail leads to “plea tenderization” by cutting defendants off from work and family.  As a result, defendants may plead guilty not because they committed a crime; but simply to get out of jail and move on with their lives.  That’s an utterly inhumane result if the defendant is innocent of the charges.

We’ll see what happens.  The bill needs extremely strong support.  More on this later . . .

State v. Buelna Valdez: Search Incident to Arrest is Invalid (Tip of the Hat To Arizona V. Gant)

WONDERFUL opinion.  The WA Supreme Court affirms Arizona v. Gant under 4th Amendment and Art.1, Section 7 of the WA Constitution.  In other words, THE WA SUPREMES HAVE EMBRACED ONE OF THE MOST IMPORTANT CRIMINAL LAW DECISIONS HANDED DOWN BY THE U.S. SUPREME COURT IN RECENT HISTORY.

Officer pulls over a vehicle because it had only one working headlight.  The officer ran a records search on the driver, Mr. Buelna-Valdez, and discovered there was an outstanding warrant for his arrest.  The officer handcuffed and secured the defendant in his patrol car.  Officer searched the vehicle.  He noticed loose dashboard panels.  He calls a K-9 unit.  The K-9 uncovered methamphetamine located under a moldy cup holder.  The passenger was then also arrested.

The WA  Supremes held that the automobile search incident to arrest was unlawful.  They reasoned that because the arrestee was handcuffed and secured in the backseat of a patrol car, he no longer had access to any portion of his vehicle.  The officer’s search of the vehicle was therefore unconstitutional under both the Fourth Amendment and the WA Constitution.  The Court also embraced the U.S. Supreme Court’s Arizona v. Gant in finding factual similarities between the cases:

“Under the Fourth Amendment, the arrestee was secured and not within reaching distance of the passenger compartment at the time of the search, so neither officer safety nor preservation of evidence of the crime of arrest warranted the search.  See Gant, 129 S. Ct. at 1719.  Furthermore, the arrestee was arrested based upon an outstanding warrant; the State has not shown that it was reasonable to believe that evidence relevant to the underlying crime might be found in the vehicle.  See Gant, citing Thornton, 541 U.S. at 632 (Scalia, J., concurring).”

The Court also reasoned the search was conducted without a warrant, even though the circumstances did not prevent officers from obtaining one prior to the search:  “There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed.  As such . . . the evidence collected from that search should be suppressed, and the resulting convictions reversed.”

My opinion?  Obviously, I’m happy.  The case is great law for defense attorneys.  Indeed, it goes even further than Gant. Although good, Gant was slightly problematic because it allowed police to search for evidence of the crime of arrest.   In this decision, however, the WA Supremes only allow a search if there is evidence of destruction.  Therefore, in WA, if the defendant is in the squad car, the police cannot search the defendant’s vehicle.  Beautiful.

Prisons Are Still Growing and Racial Disparities Persist, Despite Availability of Cost-Effective Alternatives

Last week, the Department of Justice released its annual survey of prisons.

Reports showed that over 1.6 million people are incarcerated in federal or state penitentiaries.  The report shows that although the growth of imprisonment is down, the number of people in prison is still increasing, up more than 12,000 people from last year.  The number continues to grow even as crime goes down, despite lack of evidence that incarcerating people is an effective public safety strategy.  As states continue to grapple with budget crises, its time for policymakers to consider cost-effective alternatives to incarceration.

Highlights from the report:

* Twenty states reported a reduction in their prison populations since 2007.

* Fewer people were admitted to prison in 2008 than previous years.

* The number of people released is still less than the number of people admitted.

* Decreases in the number of blacks and increases in the number of Hispanics in prison have little effect on the disproportionate impact of the criminal justice system on communities of color.

* Black men are 6.5 times more likely to be in prison than white men.

* Prisons continue to grow even as crime continues to fall.

* More needs to be done to address disproportionate minority contact with the criminal justice system.

* Correctional agencies must address re-entry needs long before returning prisoners to the community.

* Investing in effective public safety strategies can provide long-term, cost-effective solutions.

My opinion?  The findings speak for themselves, and galvanize the age-old issue in criminal jurisprudence: whether rehabilitation or punishment more effective deals with criminal defendants.  Some background: in the 60’s -70’s, our governments were more open to rehabilitating defendants away from their criminal lifestyles.  In the 80’s and 90’s, however, the rehabilitative approach was slowly abandoned.  This happened for many reasons.  First, it was difficult to quantify recidivism rates for “rehabilitated” defendants.  Additionally, states found ways to make money from the criminal justice system.  In short, more prisons brought increased employment and government funds to states which badly needed the economic injection.  Third, it became popular to beat up on criminals.  Finally, the “War of Drugs” catapulted an outcry for more police, stricter drug laws, and a “lock ’em up & throw away the key” mentality.

These days are different.  We’re seeing the “War on Drugs” failed.  We’re noticing that incarcerating people is an expensive luxury.  We’re realizing that budget crises in the criminal justice system force us to be more creative.

Interesting times . . .

Despite More Jobless, Crime Rates Fall

Surpising information . . . in a good way . . .

Experts are scratching their heads over why crime has ebbed during this recession, making it different from other economic downturns of the past half-century. Early guesses include jobless folks at home keeping closer watch for thieves, or extra benefits keeping people from resorting to crime.

My opinion?  The experts are probably correct.  People commit crimes when their present situation seems hopeless.  They lose hope when their opportunities become limited, and/or there’s no way out of a bad predicament.  Here, the government’s extension of unemployment benefits gives hope to many jobless Americans.  They may think, “I’ll get a job when the country’s economic situation improves,” and take shelter with unemployment extensions.  These same Americans might otherwise commit crimes if the government didn’t step in and assist.

New Statistics From the Bureau of Justice Shows Overall Decrease In Prison Populations

The Bureau of Justice just released two bulletins last week which examine the numbers of defendants under probation or parole supervision for 2008.  The report discusses related trends, including an overall increase in the number of individuals being released from federal and state prisons.

Highlights include the following:

* The U.S. prison population grew at the slowest rate (0.8%) since 2000, reaching 1,610,446 sentenced prisoners at year end 2008.

* Growth of the prison population since 2000 (1.8% per year on average) was less than a third of the average annual rate during the 1990s (6.5% per year on average).

* Between 2000 and 2008 the number of blacks in prison declined by 18,400, lowering the imprisonment rate to 3,161 men and 149 women per 100,000 persons in the U.S. resident black population.

My opinion?  Politicians are finally acknowledging that (1) incarcerating people is an expensive luxury, and (2) the “War on Drugs” is not working.  Although I don’t know for sure, I’m confident the majority of these “early release” defendants were convicted of low-level drug crimes.  Similarly, I’m confident the courts are sending fewer people to prison if they’ve been convicted of drug crimes.

State v. Harrington: “Progressive Intrusion” = Unlawful Search

I’m LOVIN’ this case . . .

Issue was whether the police unlawfully searched/seized the defendant prior to arrest, in violation of article I, section 7 of the Washington Constitution, requiring supression of drugs found on his person.

In short (yes, I’m getting to the good part), the WA Supremes decided the search WAS unlawful, and amounted to a “progressive intrusion.”  Evidence supressed, case thrown out of court.

The facts: On August 13, 2005, 11:00PM, Officer Reiber of the Richland Police was driving his police car on duty.  He noticed soon-to-be defendant, Dustin Harrington, walking down the sidewalk.  Officer Reiber made a U-turn, drove past Harrington, and pulled into a driveway.  He did not activate his lights or siren.  Officer exited his car and made contact with Harrington (this is called a “social contact”).  Officer Reiber asked questions.  Harrington answered them awkwardly and non-sensically.  Officer became nervous because Harrington kept putting his hands in his pockets.  The conversation lasted about five minutes.

State patrol Trooper William Bryan drove by the scene.  He initiated a U-turn, got out of his car, and approached the two men.  Similar to Officer Reiber, Trooper Bryan did not activate his emergency lights.  Upon contact, Trooper Bryan did not speak to either gentleman.  He stood about eight feet away.  Officer Reiber asked Mr. Harrington if he could pat down Harrington “for officer safety reasons.”  Mr. Harrington said “No.”  Officer patted Harrington down anyway, against Harrington’s consent.  During the pat-down, Officer Reiber found a glass pipe used for smoking methamphetamine.  Reiber arrested Harrington.  During the search, officers discovered a pipe and baggie containing methamphetamine on Harrington’s person.

The WA Supremes articulated why the search/arrest was illegal, and consequently, why the evidence should be supressed.  They discussed what “social contact” between an officer and citizen means:

“The phrase’s plain meaning seems somewhat misplaced.  ‘Social contact’ suggests idle conversation about, presumably, the weather or last night’s ball game — trivial niceties that have no likelihood of triggering an officer’s suspicion of criminality.  The term ‘social contact’ does not suggest an investigative component.”

The Court further reasoned that subsequent events quickly dispelled the social contact and escalated the encounter to an unlawful seizure. First, Trooper Bryan’s arrival at the scene escalated the situation away from a mere “social contact” because a reasonable person would think twice about the turn of events.  As a result, Trooper Bryan’s presence contributed to the eventual seizure of Harrington.  Second, Officer Reiber’s request for Mr. Harrington  to remove hands from pockets added to the officer’s unlawfully progressive intrusion.  Third, Mr. Harrington did not consent to the search.  Officers MUST have a well-founded suspicion to search when they lack a defendant’s consent.  Here, these circumstances lacked the foundational basis for a search.  Finally, and before Officer Reiber’s request to search, he did not ask for Harrington’s name or address, did not conduct a warrant check, and did not ask if Harrington carried drugs.

The court concluded Harrington was unconstitutionally seized because, like him, an objectively reasonable person would not have felt free to leave when officers asked to frisk.  Consequently, the seizure violated article I, section 7 of the Washington Constitution.

My Opinion?  Excellent.  Beautiful.  On point.  The WA Supremes got it right.  The cumulative effect of these violations — all three of them — amounted to an unlawful search.  I’m extremely happy the WA Supremes addrressed the fine line between a lawful “social contact” and unlawful “progressive intrusion.”  I’ve had numerous clients face criminal charges as a result of an officer’s inncent “social contact,” which was, in reality, a progressive intrusion into their privacy.

I’m REALLY looking forward to using State v. Harrington in future pretrial motions . . .

Jails In Indian Country

The U.S. Department of Justice recently conducted a survey of jails in Indian Country.  The facilities included a total of 82 jails, confinement facilities, detention centers, and other facilities operated by tribal authorities or the Bureau of Indian Affairs.

The report includes data on the number of adults and juveniles held, type of offense, number of persons confined on the last weekday of each month, average daily population, peak population, and admissions in June 2008. It also summarizes rated capacity, facility crowding, and jail staffing. Trend data from 2000 to 2008 on facilities in the surveys are included.

Highlights include the following:

* The number of inmates admitted into Indian country jails during June 2008 was about 6 times the size of the average daily population;

* The number of inmates confined in Indian country jails declined by 1.3% at midyear 2008, dropping to 2,135 inmates;

* Inmates held for aggravated and simple assault increased at midyear 2008; and

* Domestic violence declined.

Upon graduating from law school in 2003, my first job was Deputy Prosecutor for the Lummi Nation.  Indian defendants were housed with non-Indian defendants at the Whatcom County Jail.  I learned the Tribe had a VERY proactive anti-domestic violence unit (ADV Unit).  This was considered a hot-button topic (and probably still is).  The ADV Unit worked with tribal police, educated the community, and advocated for survivors of domestic violence.

That said, the survey showed a decrease in domestic violence (DV) crimes in 2008.  That’s good news.  DV convictions bring particularly painful consequences: defendants lose gun rights, judges issue no-contact orders against family members, defendants must move from dwellings they share with alleged victims, etc.  Very nasty.

Police Officer Says Public Safety May Be In Danger If Cuts Continue

I couldn’t resist blogging this topic.

The writer – who is also a Bellingham police officer – objects to the City’s proposal to lay off police officers in the face of decreased budgets and the economic recession.   The article is informative.  He discusses increased 911 calls, the “freezing” of more officer positions, understaffing at present levels, the fiscal responsibility of the police department (they cut their own budget by $1M), and the phenomenon of “hit and run law enforcement:”

“If layoffs are to occur, then the Bellingham Police Department will be providing what we in the profession call ‘hit and run law enforcement:’ running from incident to incident without giving each incident the attention it might deserve – going from call to call, always going on to the next crisis before fully solving the one before and not developing relationships with the public, not addressing needs in the community and not protecting the public to the best of our ability simply because we will be doing ‘more with less.'”

My opinion?  I’ve got mixed reactions.  Yes, we should adequetely fund public safety.  Yes, police should be well-trained and reasonably equipped to handle a myriad of situations.  Yes, police must have resources to respond – quickly –  when contacted for emergencies.

I object, however, when police abuse their authority.  I object when police obtain evidence illegally.  I object when prosecutors refuse to make reasonable plea offers on weak cases.  I object when defendants a grinded through a legal system which unnecessarily costs too much time and money.  I really object when defendants are issued bench warrants and/or Bail Jumping charges after failing to appear for their hearings on the aforementioned “weak cases,” which should have never been filed or dismissed long ago.

I propose a two-part solution: First, discontinue funding for the City’s Anti-Crime Team (I blogged about this waaaay back on August 7).  The  Anti-Crime Team (ACT) is a proactive sub-unit of the Bellingham Police Department.  They provide additional investigations/policing of our neighborhoods by serving bench warrants, conducting police interviews, plotting stakeouts, etc.  In other words, ACT is proactively involved with community caretaking functions.

I question whether ACT is necessary.  Fine lines exists between community caretaking, wasting of resources, and police abuse.  Community caretaking wastes resources when police serve bench warrants on low-income defendants accused of low-profile crimes.  It also becomes an abuse of power when police conduct unlawful “pretext” investigations (I discuss pretext in my August 7 blog).

Second, save resources by convincing City prosecutors to actively dismiss and/or amend their weaker criminal cases.  Everybody benefits!  Police won’t needlessly testify at witness interviews, pretrial motions, or trials.  We keep them on the streets, where they should be.  Also, defendants avoid the grinding, unforgiving process of the criminal justice system.

State v. Saunders: A Court Should Not Grant Continuances Without Valid Reasons

Great opinion from the WA Court of Appeals, Division II.

The defendant’s trial was continued several times.  He objected at every hearing before the court (yes, defense counsel asked for some of them).  One continuance was for further negotiations.  Another was because the case was pending in the prosecutor’s negotiating unit, even though the court noted there was no good explanation.  A third continuance happened because the case was not yet assigned to a trial prosecutor.

The Court reasoned that all three continuances were without adequate basis.  Since there were no convincing/valid reasons for the continuances, the charges were dismissed for violation of CrR 3.3; which is Washington’s speedy trial rule: “Absent convincing and valid reasons for the continuances granted on January 8, Februrary 20, or March 18, the trial court’s order granting the three continuances were “manifestly unreasonable, exercised on untenable grounds and for untenable reasons.” Downing, 151 Wn.2d at 272 (quoting Junker, 79 Wn.2d at 26.  The trial court abused its discretion in granting futher delays in commencing Saunders’s trial.  Under these circumstances, we reverse and remand for entry of an order dismissing the charge against Saunders under CrR 3.3(h).”

My opinion?  Excellent, excellent, excellent!  First, I admire defendants who exercise their rights to speedy trial.  Whatever outcome that’s going to happen will inevitably happen faster because both sides are forced to work the case up.  True, there are times when rushing to battle is not always the best strategy.  Some cases get better with age.  Memories fade.  Witnesses recant and/or move away.  Prosecutors want to dump old cases when their caseloads get too heavy.  Nevertheless, what I deeply despise — and I’ve seen it happen — is when courts lack any good reason to grant the prosecutor’s wishes for continuances.  It’s incredibly frustrating.  State v. Saunders is a great step in the right direction.

This case is vastly similar to State v. Kenyon, which I discussed in my October 7 blog (Indeed, the Saunders court expressly based much of its reasoning from the Kenyon decision).  Clearly, our courts are giving teeth back to the  Speedy Trial Rule.  Good!  I believe the larger reason why this is happening is because shrinking state/judiciary budgets are, consequently, taking away the luxury to continue criminal cases.  I, for one, enjoy the change.  I’d rather go to trial than make up reasons to keep continuing cases.

State v. Winterstein: Parole Officers Cannot Search A Home If Facts Do Not Support the Officer’s Belief That Probationer Lives There.

Another good opinion; addresses warrantless searches of a defendant’s home.

Terry Lee Winterstein was convicted of Unlawful Manufacture of Methamphetamine after his probation officer conducted a warrantless search of his residence. After trial, Winterstein’s counsel discovered that Winterstein had reported a change of address with the Department of Corrections at least three weeks prior to the search.  Neverthless, the probation officer searched Winterstein’s prior residence. Winterstein argued that the evidence gathered as a result of the warrantless search should be suppressed because his probation officer did not have the authority of law to search a house that was not Winterstein’s documented residence.

The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals also held that regardless of the illegal search, the evidence could be admissible under the “inevitable discovery doctrine”—that is, evidence that police would have ultimately or inevitably discovered through other (lawful) means.

The case wound its way up to the WA Supreme Court.

First, the Court addressed whether the probation officer’s search of the Winterstein’s former residence was proper.  They reasoned that, generally speaking, individuals under Department of Corrections supervision have a lesser expectation of privacy, and can be searched on the basis of a reasonable suspicion of a probation violation.  However, the Court also said that probation officers must have probable cause—a higher standard—to believe that their probationers live at the residences they search:

“In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered.”

Second, the Supremes addressed the Inevitable Discovery Doctrine.  They reasoned it is well-established that article I, section 7 of the Washington Constitution provides greater protection of privacy rights than the Fourth Amendment of the U.S. Constitution. Section 7 says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” While federal cases have allowed for inevitable discovery, and the state Court of Appeals has applied the doctrine, the Supreme Court said the doctrine is “speculative and does not disregard illegally obtained evidence”—and is therefore incompatible with the state constitution’s expansive protection of privacy.

My opinion?  Extremely well-articulated and correct decision.  The WA Supremes’ handling/dispatching of the Inevitable Discovery Doctrine acknowledges the expanded freedoms under the WA Constitution in comparison to the U.S. Constitution.  Admitting evidence under the Inevitable Discovery Doctrine leaves no incentive for the State to comply with the constitution’s requirement that arrests precede searches.