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

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals

LOCKMED GUARDIAN LARGE Combination Lockbox

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

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

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

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

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

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

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

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

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

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

Good decision.

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

Bill Seeks Prison Time for Drone Crimes

Bellingham Defense Attorney, Department of Corrections, Drones, felony, Legislation, Sentencing, , ,

Drone and Moon

Interesting news article from the Skagit Valley Herald. In an article titled, “Senate OKs Bill That Would Add Prison Time For Drone Crimes,” The WA Senate passed a bill that would allow prosecutors to seek an extra year in prison for offenders who use a drone aircraft while committing a crime.

Senate Bill 5499 passed on a 34-15 vote Tuesday and now heads to the House forconsideration. It adds the allegation of a “nefarious drone enterprise” to Washington criminal law. The state currently has no restrictions on the use of drones, although 20 other states have enacted laws on drone-related issues.

The bill adds a year to the sentencing range that dictates how judges can punish an offense. The measure was one a handful of other bills concerning drones that were filed in the Legislature this session in the wake of Gov. Jay Inslee’s veto of a bill last year that would have restricted how state and local government agencies use the unmanned aircraft.

My opinion? Although sad, Senate Bill 5499 was foreseeable. For example, under  RCW 46.20.285, defendants convicted of felonies get their driver’s licenses revoked for 1 year if a vehicle was used during the commission of a crime. It makes sense, therefore, that Prosecutors would get aggressive toward defendants if drones were used to further the commission of a crime. Sad but true.

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

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

Assault, Bellingham, Bellingham Defense Attorney, DNA, Domestic Violence, felony, Jury Trial, Legislation, Prior Bad Acts, Rape, Sex Crimes, Violent Crime, , ,

That was me on the shelf': Maryland lawmakers weigh legislation requiring rape kits be tested - Baltimore Sun

On March 2, 2015, the Washington House Appropriations committee voted “Yes” on House Bill 1068; which supports DNA testing of rape kits sitting in evidence rooms across Washington Counties. The bill passed 82-15.

Essentially, numerous Washington counties – including Whatcom County – could help find serial rapists. House Bill 1068 arrives on the heels of recent controversy that rape kit evidence containing DNA evidence has been ignored by police departments statewide.

The Bellingham Herald ran two articles on this news. One story, titled Prosecutor: Testing Evidence Kits Can Lead to Finding Repeat Rapists discussed people’s responses to House Bill 1068.

The article mentions that Prosecutors like Rick Bell of Ohio support House Bill 1068. He claims that out of 6,000 kits tested, 2,244 received a hit to a known offender in a national database. Additionally, of the rapists indicted by his his office in Cuyahoga County, 30 percent are serial rapists. “Those serial offenders were going undetected, in part because labs couldn’t process all cases, so kits involving acquaintance rapes weren’t tested,” said Bell.

Also according to the article, Western Washington University college students like Heather Heffelmire, who is working in Olympia as the Legislative Liaison for Western Washington University’s Associated Students, testified in favor of House Bill 1068 during a public hearing in January. She said one of the main legislative priorities for WWU’s student body this year is to support survivors of sexual violence. “If you think about assault on campuses, it’s not like a predator does one assault — it’s usually a pattern of behavior,” Heffelmire said. “If you’re not having these kits tested, you can’t find that out.”

Additionally, Leah Gehri, the Director of Emergency Services at St. Joseph hospital in Bellingham WA, said she thinks HB 1068 is timely. “When you think about how long DNA evidence has been around, … at one point there weren’t a lot of DNA profiles hanging out there, they just didn’t have a lot of them,” Gehri said. “Now however, 20 years later, when profiles are quite common, the likelihood that an untested kit would now match up against a perpetrator in the system is more likely than it ever has been.”

Another article from the Bellingham Herald titled, Washington Lawmaker Tries to Tackle Thousands of Untested Rape Kits in State discusses the efforts of Rep. Tina Orwall, D-Des Moines toward having House Bill 1068 passed. 

The specific language House Bill 1068 is as follows:

Substitute offered in the House on January 23, 2015, requires a law enforcement agency to submit a request for laboratory examination within 30 days of receiving a sexual assault examination kit, provided that the victim or the victim’s legal guardian has consented to analysis of the kit as part of a sexual assault investigation. Specifies that failure to comply with the 30-day deadline does not create a private right of action against the law enforcement agency and is not a basis to exclude evidence in a court proceeding or to set aside a conviction or sentence. Creates a work group to study the issue of untested sexual assault examination kits in Washington, which must file an annual report through June 30, 2018.

My opinion? As a defense attorney, I support the notion that evidence garnered from the DNA testing of rape kits could be probative, relevant and cumulative in proving that the the perpetrator had a pattern of rape. Nevertheless, I have two concerns:

First, while I understand and agree with intent to have kits processed as quickly as possible, the timelines set forth in this proposal are probably unattainable with existing resources and do not take into account the complexities of processing kits. The 30-day timeline is very problematic for crime labs and is not feasible without a huge influx of resources (equipment, personnel, and possibly larger facilities).

Second, House Bill 1068 does not take into account the multitude of legal circumstances surrounding these kits.  For example, in a number of rape cases, the identity of the involved parties is not in question and both parties affirmatively indicate a sexual act occurred. Here, the issue is consent, not identity. Consequently, DNA analysis would only confirm what is already known.

In all likelihood, the latter issue will rest on the shoulders of jury trial judges who decide pretrial motions to admit or suppress DNA evidence in rape cases. In other words, we’ll see what happens . . .

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

Marijuana / THC Breathalyzer Available Soon.

Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, police, Search Warrant, Uncategorized, Washington State Patrol, , ,

Marijuana breathalyzer technology is here, and it's coming for drivers | fox43.com

Technology appears to be catching up.

Since Colorado and Washington legalized the recreational use of marijuana in 2014, and the growing trend to legalize pot in some capacity across the nation, there is an increased interest in addressing drugged driving.

However, today’s standardized testing marijuana intoxication is not as simple as detecting alcohol. More science and research are required. It the meantime, technology will be coming to market, such as the marijuana breathalyzer being developed by Cannabix Technologies, Inc. to give police officers an on-site tool to enhance detection of THC, the psychotropic metabolite in marijuana.

In the future, devices of this type will likely be dialed in by the forensic community and become an integral element in identifying marijuana-intoxicated drivers and in other settings, including workplaces and general consumer use, just as the alcohol breathalyzer is today.

My opinion? We saw this coming. It’s almost humorous. Typically, the law lags behind technological advances. Here, technology appears to be lagging behind the evolution of marijuana legalization! Interesting development, no? This device is another tool in the hands of law enforcement – along with Drug Recognition Experts, and search warrants for the testing of blood – for investigating DUI charges.

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

State v. McPherson: Residential Burglary Involving A Dwelling/Business.

Burglary, Constitutional Rights, felony, Jury Trial, Washington Court of Appeals, , ,

What to Do Before, During, and After a Jewelry Store Robbery

In State v. McPherson, the Court of Appeals Division II decided the legal issue of whether a jewelry store and attached apartment is a “dwelling” under the definition of Residential Burglary. In short, the Court decided this was an issue of fact for a jury to decide; and that there was sufficient evidence for the conviction.

On the morning of March 20, 2013, someone broke into Frederick William Salewsky’ s jewelry store by entering the unoccupied store next door and making a hole in the adjoining wall. Frederick Salewsky, who worked in the jewelry store and lived in an apartment above the store, was awoken by a noise, went downstairs to investigate, and interrupted the burglary. He shot the intruder, who fled. The police later identified McPherson as a suspect after he checked into a Tacoma hospital with a gunshot wound.

The State charged McPherson with Burglary Second Degree of the vacant store ( count I), Residential Burglary of the jewelry store (count II) and Malicious Mischief Second Degree. The jury found McPherson guilty as charged and found that he had committed the Residential Burglary while the victim was present in the building or residence.

Under RCW 9A.52.025(1), a person is guilty of Residential Burglary if, with intent to commit a crime against a person or proerty therein, the person enters or remains unlawfully in a dwelling other than a vehicle. “Dwelling” means any building or structure, or a portion thereof, which is used or ordinarily used by a person for lodging.

The Court reasoned that whether a building is a “dwelling” cannot always be determined as a matter of law. Because the specific living arrangements in houses and businesses are so different, this issue was more appropriately a question of fact for the jury to decide. Here, the evidence support’s the jury’s determination that the building was a “dwelling” as the apartment was directly above the jewelry store because the apartment and jewelry store were within a single structure, the only access to the apartment was through the jewelry store, and the doors that separated the store from the apartment could not be locked or secured.

The court concluded that altogether, this evidence was sufficient for the jury to find that the apartment was not separable from the jewelry store and, therefore, there was sufficient evidence to support the jury’ s finding that the jewelry constituted a dwelling.

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

What Caused the Decline In Crime?

Bellingham Defense Attorney, Department of Corrections, Jail, Studies, , ,

What's Behind The Decline In Crime?

A new report examines the dramatic drop in crime nationwide over the past two decades — and analyzes various theories for why it occurred.

In What Caused the Crime Decline? a team of economic and criminal justice researchers examined over 40 years of data, gathered from 50 states and the 50 largest cities. Their work examines one of the nation’s least understood recent phenomena – the dramatic decline in crime nationwide over the past two decades – and analyzes various theories for why it occurred.

It concludes that over-harsh criminal justice policies, particularly increased incarceration, which rose even more dramatically over the same period, were not the main drivers of the crime decline. In fact, the report finds that increased incarceration has been declining in its effectiveness as a crime control tactic for more than 30 years. Its effect on crime rates since 1990 has been limited, and has been non-existent since 2000.

More important were various social, economic, and environmental factors, such as growth in income and an aging population. The introduction of CompStat, a data-driven policing technique, also played a significant role in reducing crime in cities that introduced it.

The report concludes that considering the immense social, fiscal, and economic costs of mass incarceration, programs that improve economic opportunities, modernize policing practices, and expand treatment and rehabilitation programs, all could be a better public safety investment.

Nobel laureate Dr. Joseph E. Stiglitz called the report “groundbreaking” in a foreword.

This is interesting reading. Also, their research contained information on how/why specific states’ drop-off in crime happened.

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

 

State v. Larson: Retail Theft With Extenuating Circumstances

Due Process, felony, Knapstad Motion, Retail Theft, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Wire Cutter and Stripper Tool | ICC

In State v. Larson wire cutters, which were used to sever the wire that attached a department store security device to a pair of Nike shoes, are a “device designed to overcome security systems” for purposes of convicting the defendant of Retail Theft with Extenuating Circumstances.

Defendant Zachary Larson attempted to steal a pair of shoes from a retail store. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of Retail Theft with Extenuating Circumstances under RCW 9A.56.360(1)(b), which criminalizes the commission of retail theft while in possession of a “device designed to overcome security systems.”

While the case was pending, he argued a Knapstad motion seeking dismissal of the charge. Therein, he argued that, as a matter of law, wire cutters do not constitute a “device designed to overcome security systems.” The trial court denied his Knapstad motion. On December 18, the trial court found Larson guilty as charged. He was sentenced to 60 days of confinement. Larson appealed on the argument that the trial court improperly denied his Knapstad motion and that wire cutters do, in fact, constitute a device designed to overcome security systems.

The court disagreed with Larson and stated the following:

“The plain meaning of the statute reveals the legislature’s intent to punish thieves who, anticipating that the possession ofa device which may be able to foil a store’s security system will be expedient to their cause, commit retail theft while in possession of such a device. In recognition of the fact that wire cutters are designed to cut wire, which is a common feature ofsecurity systems, we hold that, within the meaning of former RCW 9A.56.360(1 )(b), wire cutters constitute a ‘device designed to overcome security systems.'”

The Court also reasoned that the Division II Court of Appeals decision in State v. Reeves, ___ Wn. App. ___, 336 P.3d 105 (2014) – a recent opinion which held that “ordinary pliers” do not constitute a device designed to overcome security systems – was wrongfully decided :

“To exclude wire cutters from the statute’s reach on the basis that wire cutters may be used in other settings to achieve different ends would frustrate the legislature’s intent, while providing those inclined to commit retail theft with an unmistakable incentive to employ “ordinary devices,” as characterized by the Reeves court, to pursue their nefarious ends. Surely, the legislature did not intend such a result.”

With that, the Court upheld Larson’s conviction.

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

State v. Weller: Community Caretaking

Assault, Community Caretaking, Constitutional Rights, Due Process, Evidence, felony, law enforcement, Plain View, police, Probable Cause, Search and Seizure, Search Warrant, Violent Crime, Washington Court of Appeals, , ,

Community Caretaking: Police May Make Stop Without Reasonable Suspicion

In State v. Weller, the WA Court of Appeals decided an officers’ entry into a garage to privately interview children about their allegations of abuse was lawful under the health and safety check community caretaking exception to the warrant requirement. Also, the seizure of the board the children stated was used by the parents while beating the children, was lawful under the plain view exception to the warrant requirement.

Sandra and Jeffrey Weller had six children in their care. In 2011, CPS became suspicious that the Wellers were abusing the children. Eventually, CPS conducted a welfare check of the family home with the assistance of numerous police officers. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children.

Sandra stepped back from the door and the officers entered the house. The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.

Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers saw what appeared to be bloodstains on the board. Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence.

After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. At trial, the Wellers tried to suppress the evidence and dismiss the case on theories

The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime.

However, the trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view.

The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of Assault Second Degree, one count of Unlawful Imprisonment, one count of Assault Third Degree of a Child, and two counts of Assault Fourth Degree. The jury also found Sandra guilty on most counts and the trial court sentenced her for four counts of Assault Second Degree and one count of Unlawful Imprisonment. The defendants appealed.

The Wellers argue that the officers seized the board used to beat CW and CG in an unlawful warrantless search of their garage, and therefore that the trial court erred in denying their CrR 3. 6 motion to suppress the board. The Court disagreed, and held that the trial court did not err when it concluded that ( 1) the officers’ entry into the garage to privately interview the children was lawful under the community caretaking function exception to the warrant requirement, and (2) the seizure of the board was lawful under the plain view exception to the warrant requirement. Some background on these legal principles is necessary.

WARRANTLESS SEARCHES

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies. The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement.

 COMMUNITY CARETAKING

The community caretaking function exception to the warrant requirement arises from law enforcement officers’ community caretaking function and involves two aspects: officers rendering aid or assistance ( emergency aid exception) or making routine checks on health and safety (health and safety exception). Another exception to the warrant requirement is the plain view exception, which allows officers to seize an object if they are lawfully present in a constitutionally protected area and the object is in plain view.

A search pursuant to the community caretaking function exception must be totally divorced from  a criminal investigation. The exception does not apply where an officer’ s primary motivation is to search for evidence or make an arrest.

Here, the Court reasoned that the officers entered the garage because they were trying to find a private place to interview the children in conjunction with their welfare check. Nothing in the record suggests that the officers were searching the garage or looking for evidence.

HEALTH AND SAFETY CHECK INSPECTION

To invoke the health and safety check exception, the State must show that ( 1) the officer subjectively believed someone needed health or safety assistance, and (2) a reasonable person in the same situation would believe that there was a need for assistance, and ( 3) there was a reasonable basis to associate the need for assistance with the place searched. Next, the State must show that the encounter under this exception was reasonable, which depends upon a balancing of the individual’ s interest in freedom from police interference against the public’ s interest in having the police perform a community caretaking function.

Here, the Court reasoned that the three requirements for application of the health and safety check exception clearly were satisfied. The officers subjectively and reasonably believed that the Weller children needed health or safety assistance. A trained CPS investigator relayed to the officers her professional opinion that the Weller children were not safe and were expressing severe fear.

PLAIN VIEW

The ” plain view” exception to the warrant requirement applies when officers ( 1) have a valid justification for being in a constitutionally protected area, and ( 2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. The test for determining when an item is immediately apparent for purposes of a plain view seizure is whether, considering the surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Officers do not need to be certain that the item is associated with criminal activity – probable cause is sufficient.

Here, the Court decided the officers were lawfully present in the Wellers’ garage. Further, the surrounding facts and circumstances led the officers to believe that the board was evidence of a crime. As the welfare check progressed, the children said Mr. Weller periodically beat them with a board. Further, when the officers were in the garage, the children began to look for the board. And the children immediately confirmed that the board in the garage was in fact the board used to beat them. As a result, the Court held that the plain view exception to the warrant requirement applied to the officers’ seizure of the board.

The Court of Appeals upheld the convictions.

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

Attorney Alexander F. Ransom Awarded Client Distinction Award From Martindale-Hubbell.

Bellingham Defense Attorney, , ,

Martindale-Hubbell Client Distinction Award Wooten Law Firm

Good news! Attorney Alexander F. Ransom has received the Martindale-Hubbell Client Distinction Award. Martindale-Hubbell is the premier lawyer rating service in the country. Martindale-Hubbell gives the Martindale-Hubbell Client Distinction Award to those lawyers whose clients give the lawyer a 4.5 average rating (out of 5.0) in the following areas: (1) Communications Ability; (2) Responsiveness; (3) Quality of Service; and (4) Value for Money.

Less than one percent (1%) of the more than 900,000 attorneys listed by Martindale-Hubbell on its martindale.com and lawyers.com websites receive the Martindale-Hubbell Client Distinction Award.

Congratulations, Alexander!

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

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

Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

EXIGENT CIRCUMSTANCES | Austin Criminal Defense Lawyer

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

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

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

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

EXIGENT CIRCUMSTANCES

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

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

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

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

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

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