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State v. Saggers: When Officers Exceed the Scope of Searches Under Terry v. Ohio

911 Call, Assault, Constitutional Rights, felony, Firearm, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Terry V. Ohio (@ohio_terry) | Twitter

In State v. Saggers, the WQA Court of Appeals held that police officers exceed the scope of a Terry Stop when  an informant’s tip is questionably (un)reliable and the exigency of the alleged serious offense has dissipated.

Police arrived at the home of defendant Andrew Saggers because a 911 call indicated an altercation occurred outside his home involving a shotgun. The 911 call was placed from a payphone. Although the caller provided his name, he was unknown to the police. When police went to the payphone, the caller was gone and the phone was hanging from the cord. The police contacted Mr. Saggers.

Although the present situation was neither dangerous nor life-threatening, the police inquired whether Mr. Saggers had a shotgun in the house. He admitted, “Yes.” The police searched his home and found the gun. Mr. Saggers was subsequently charged with Unlawful Possession of a Firearm. At trial, he was found guilty of the charges. The case went up on appeal.

The Court of Appeals held the police officers exceeded the scope of a search under Terry v. Ohio because the informant tip was unreliable and the emergency of any life-threatening situation was already passed. For those who don’t know, Terry v. Ohio is a landmark decision by the U.S. Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

Here, however, the Court of Appeals ruled that although it is understandable that officers faced with a 911 call like this one would rightfully pursue an investigation, the 911 Call itself was unreliable. Additionally, the danger had already passed by the time officers arrived at Sagger’s house. Consequently, the officer exceeded the scope of a valid search under Terry v. Ohio. Based on these findings, the Court of Appeals reversed Saggers’ conviction.

Good opinion.

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.

DUI Patrols To Run Through Sept. 1 in Whatcom County

Bellingham, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, misdemeanor, police, Washington State Patrol, , ,

Orange County conducts DUI patrol during holiday weekend

They’re back.

According to the Bellingham Herald, people out partaking in recently legalized marijuana or drinking at end-of-summer barbecues should plan a safe way to get home, as emphasis patrols are looking for intoxicated drivers in Whatcom and Skagit counties.

Officers from local police departments, sheriff’s deputies from Whatcom and Skagit counties and Washington State Patrol troopers will have extra patrols to catch drivers under the influence as part of the Drive Sober or Get Pulled Over campaign. The emphasis patrols will run through Sept. 1st.

“Specifically, we want people to know that marijuana doubles the risk of a fatal crash,” Traffic Safety Commission Director Darrin Grondel said in a news release. “With new retail marijuana stores in the mix, we want to remind the public that prescription and over-the-counter drugs, as well as illegal and recreational drugs, can impair driving ability.”

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. Martines: More Good Caselaw on Blood Tests Taken After DUI Arrests

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Both cops, drivers have rights at checkpoints | Local News | scnow.com

In State v. Martines, the WA Court of Appeals held that after police investigate and arrest a suspect for suspicion of DUI, the State may not conduct tests on lawfully procured blood samples without first obtaining a warrant that authorizes testing and specifying the types of evidence for which the sample may be tested.

The defendant was seen driving his SUV erratically. He veered into another car, careened across the highway, bounced off the barrier, and rolled over. A Washington State Trooper arrived and took Mr. Martines into custody. Martines smelled of intoxicants, had bloodshot watery eyes, and stumbled while walking.

Trooper Tardiff sought a warrant to extract blood samples from Martines. His affidavit of probable cause stated that a blood sample “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.” He obtained a warrant that authorized a competent health care authority to extract a blood sample and ensure its safekeeping. The warrant did not say anything about testing the blood sample.

Martines’ blood was taken at a local hospital. Then it was tested for the presence of drugs and alcohol. The test results indicated that Martines had a blood alcohol level of .121 within an hour after the accident, and that the drug diazepam (Valium) was also present. Martines had a prior conviction for vehicular assault while driving under the influence. The State charged him with Felony DUI.

The trial court denied Martines’ motion to suppress. He was found guilty at trial. The case went up on appeal. The primary issue on appeal was that testing a blood sample for any purpose is a search for which a search warrant is required. Because the warrant authorizing the extraction of blood did not specifically authorize blood testing of any kind, Martines argued that the results should have been suppressed as the fruit of an illegal search.

The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another:

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

In short, the court held that extracting someone’s blood is a first search, and testing the blood is a second search. The first search – the initial extraction – is totally different than the second search, which is analyzing the blood. Because the second search is so intrusive (blood contains someone’s personal DNA code, pregnancy results, information on diseases, etc.), a second warrant is needed. Consequently, the State may NOT test blood samples without first obtaining a warrant that authorizes testing. The warrant must specifically state the types of evidence they’re looking for.

My opinion? State v. Martines is an interesting decision. I admire the Court of Appeals for making a decision which is consistent with Missouri v. McNeely (discussed in another blog) and going one step further favoring a defendant’s constitutional rights under the 4th Amendment.

The opinion prevents police officers from getting a boilerplate search warrant and going on fishing expeditions when they pull people over on suspicion of DUI. The officers must be trained to determine what exactly they’re looking for; be it drugs, alcohol or both. Saying someone has bloodshot/watery eyes, slurred speech and smells of intoxicants does not, by itself, cut it anymore.

Good job, Court of Appeals. I’m impressed.

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. McNeely: U.S. Supreme Court Says Blood Draws Require a Warrant

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Exigent Circumstances, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, United States Supreme Court, Washington State Patrol, , ,

Harmless Error Blog: Missouri v. McNeely: Trouble for Implied Consent Laws?

In Missouri v. McNeely, the United States Supreme Court held that police officers investigating DUI must obtain search warrants for blood draws if emergency circumstances – in legal language, exigent circumstances – do not exist.

The issue decided by the U.S. Supreme Court was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood testing in all drunk-driving cases.

The facts were such that the defendant McNeely was stopped by Missouri police for speeding and crossing the centerline. After declining to take a breath test to measure his blood and alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing.

The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a blood sample anyway. McNeely’s BAC sample was well above the legal limit. He was charged with Driving While Intoxicated (DWI).

The U.S. Supreme Court held that rather than applying a blanket per se exigency due to the dissipation of BAC in a person’s body, an exigency must also be based upon “special facts” under a case-by-case analysis.

The Supremes reviewed prior caselaw on this subject. In State v. McNeely, the Court pointed out that a diminishing BAC result upon the passage of time that happens during a DUI investigation is only one factor that must be considered in determining whether a warrant is required.

The Court in McNeely further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. In other words, a warrantless blood draw can still be conducted provided there are other factors articulated by the officer.

My opinion? McNeely is a good, straightforward decision. In short, McNeely holds that when a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. If an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained.

The officer must be able to articulate what factors were present that created an exigent circumstance. Also, and importantly, “exigent circumstance” cannot be a result of the officer’s conduct. There must be objective, independent facts articulating why exigent circumstances exist to get a warrant.

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.

Unlawful Frisking Violates Constitutional Rights

Constitutional Rights, Drug Offenses, felony, Firearm, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, Washington Supreme Court, , ,

Austin PD defends officer who stopped and frisked woman in video

Good case. In State v. Russell, the WA Supreme Court held that the warrantless search of a small container found on the defendant’s body exceeded the proper scope of a pat-down search under the guise of a “protective frisk for weapons” during a Terry Stop.

The defendant Mr. Russell was stopped for violating several minor traffic laws. The officer recognized Russell from a prior stop. Although the Mr. Russell told officers he was not armed, he did, in fact, have a small pistol in his pocket. The officer frisked Mr. Russell for weapons. The officer felt a small box in Russell’s pants. The box was did not weigh any significant amount, and the officer had no idea whether the box contained a weapon. The officer opened the box. It contained a syringe filled with methamphetamine. The defendant was arrested for Possession of Meth.

The trial court granted Mr. Russell’s motion to suppress the evidence and dismiss the case. However, the WA Court of Appeals reversed the trial court’s decision on appeal. Eventually, the case found its way to the WA Supreme Court.

The WA Supreme Court ruled that although the initial protective frisk was permissible, the officer violated Russell’s constitutional rights when he removed a small container from his pocket and searched it without a warrant. The officer admitted that the container’s contents weighed only a fraction of what a pistol weighs. Because the officer did not have a reasonable belief that the container housed a gun, the warrantless search was not justified.

Furthermore, the Court reasoned that any threat to the officer’s safety ended when he took control of the container. He did not have authority to search it while investigating traffic infractions. Finally, the WA Supreme Court  held that the search was not justified on the basis of consent because the State did not show that Russell consented to the search. For these reasons, the WA Supremes reversed the Court of Appeals.

My opinion? Great decision. Under the law, officers can only search for “hard and sharp” objects which might be used as weapons. Anything else they find is “fruit of the poisonous tree” under an unlawful search. Again, 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.

When Prosecutors Violate the Advocate-Witness Rule: United States v. Rangel-Guzman

Constitutional Rights, Drug Offenses, felony, law enforcement, marijuana, police, Prosecutorial Misconduct, Search and Seizure, , ,

 

Motion for Disqualification Based on “Witness-Advocate Rule” Deemed “Premature” | Westchester Commercial Division Blog

In U.S. v. Rangel-Guzman, the 9th Circuit holds that a prosecutor commits error by phrasing cross-examination questions regarding a witnesses’ prior inconsistent statements as “but you told us” and “I asked you and you said.” Such questions violate the advocate-witness rule.

The defendant was arrested at the border while trying to transport 91.4 kilos of marijuana into the U.S. The marijuana was hidden in a compartment behind his backseat.

The defendant was arrested and charged with the federal offenses of Unlawful Possession With intent to Distribute. While the case was pending, the Federal prosecutor interviewed the defendant. Eventually, the case went to trial.

 At trial, and during cross-examination, the Assistant United States Attorney repeatedly attempted to impeach Rangel-Guzman by referring to a meeting between herself, Homeland Security Agent Baxter, Rangel-Guzman and Rangel-Guzman’s attorney. In doing so, the Prosecutor made it clear that she had questioned Rangel-Guzman and that he had made certain statements inconsistent with his current testimony: “You told us that you and your mother ran into Martha . . . You told us that four or five months before . . . That’s what you told us last week . . . Don’t you remember that I was shocked that you were saying it was four to five months before you got arrested?”

The court reasoned that the Prosecutor engaged in improper vouching by effectively acting as a witness. Vouching occurs when a prosecutor “places the prestige of the government behind the witness or indicates that information not presented to the jury supports the witness’s testimony.” United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980).

The Advocate-Witness Rule prohibits attorneys from testifying in a trial they’re litigating; the rule “expresses an institutional concern, especially pronounced when the government is a litigant, that public confidence in our criminal justice system not be eroded by even the appearance of impropriety.” United States v. Prantil, 764 F.2d 548, 553 (9th Cir. 1985).

Here, the prosecutor made a number of statements that used variations on “but you told us” and “I asked you and you said,” as well as assertions of fact about what had occurred during the meeting: “Well, we went over and over it, Mr. Rangel,” “Do you remember last week I specifically asked you multiple times who accompanied you to the Quinceanera?” And she left no doubt about her personal feelings during the meeting: “Don’t you remember that I was shocked that you were saying that it was four to five months before you got arrested that you met Martha?”

 When a prosecutor interviews a suspect prior to trial, the “correct procedure” is to do so “in the presence of a third person so that the third person can testify about the interview.”

The court concluded that undoubtedly, the Prosecutor was asking the jury to choose whether to believe her or the defendant. This was highly improper and unfair to the defendant.

 Despite the error, the court affirmed the conviction because the case against the defendant was so strong. In other words, the defendant failed to show that the outcome of the trial would have been different, had the error not occurred. For these reasons, the 9th Circuit affirmed the conviction.
My opinion? Interesting ruling. I’m satisfied the 9th Circuit actually took the case on appeal. It’s also pleasing they recognize when Prosecutors violate the Advocate-Witness Rule. It’s an important rule. Too often, Prosecutors lean on their own credibility when trying cases. This is a very subtle and damaging strategy because jurors have a tendency to want to believe everything a Prosecutor says!
This is very dangerous, however, when Prosecutors unlawfully insert themselves into proceedings and testify as witnesses. The Court was correct in saying that the Prosecutor should have called Agent Baxter to testify. Good opinion.

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. Finch: Can Defendants Force Victims to Get Polygraph Tests?

Assault, Discovery, Polygraph, Pretrial Investigations, Rape, Washington Supreme Court, , ,

Can A Pregnant Woman Take A Polygraph Test?

In State v. Finch, the WA Supreme Court ruled that a rape victim’s polygraph test is inadmissible at trial.

The defendant was accused of raping a juvenile. Defense counsel obtained a court order commanding the alleged victim to obtain a polygraph test. The polygraph questions centered around what exactly happened on the day of the alleged rape incident.

The WA Supreme Court held that the trial court wrongfully granted the Defendant’s request to order the victim to take a polygraph test. The court reasoned there is no factual basis under CrR 4.7 – basically, the discovery rule – making it reasonably likely that the disputed polygraph test results would provide information material to the defense.

The Court based its decision on three grounds. First, polygraph tests are inadmissible at trial unless all parties agree. Here, the State did not want to stipulate to admitting the victim’s polygraph. Second, the State would not dismiss the charges against the defendant even if the victim failed the polygraph because there would be a “disputed issue of material fact” regarding the polygraph’s reliability (CrR 8.3). Third, the polygraph test results would only provide the defendant with highly unreliable information.

The Court concluded that the negative emotions that accompany being a sex crime victim, such as stress, anxiety, and fear, can further compromise the reliability of an already unreliable polygraph test by distorting the results and creating false positives.

My opinion? Good decision. The biggest problem with polygraph tests is that there are no known physiological responses that directly correspond with deception. An examinees physiological responses is often governed by whether the examinee believes the test is accurate, and from the atmosphere created by the examiner.

Furthermore, external stimuli may cause a change in physiological responses, such as a surprising question or a noise outside the room. Likewise, stress, anxiety and fear – all controlled by the autonomic nervous system – cause changes in the physiological responses of an examinee.

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. Lindsay: When Attorneys Act Unprofessionally

Assault, Burglary, Firearm, Kidnapping, Prosecutorial Misconduct, Robbery, Rules of Professional Conduct, Theft, Washington Supreme Court, , ,

I'll Have Your Rear End Sanctioned': Insurance Defense Lawyer Spars With Plaintiff, Opposing Counsel | Daily Business Review

In State v. Lindsay, the WA Supreme Court reversed a defendant’s conviction because the lawyers engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout the proceedings in this case.

The defendants were charged with Robbery, Burglary, Kidnapping, Assault and Theft of a Firearm. The jury convicted them of some, but not all counts. The WA Supreme Court reasoned that although the trial court attempted to maintain civility, the magnitude of the problem, which spilled into the prosecutor’s closing argument, requires reversal. In short, a prosecutorial misconduct involves a two-part inquiry: (1) whether the prosecutor’s comments were improper, and (2) whether tjhe improper comments caused prejudice.

The court noted that although the conflict from both the Prosecutor and Defense Counsel seemed mutual and both attorneys were at fault, Prosecutors are held to a higher standard of conduct. Additionally, some of the Prosecutor’s hijinks at Closing Argument required reversal of the conviction. For example, the Court noted that Prosecutors may not refer to defense counsel’s closing argument as a “crock.” These comments impugn Defense Counsel, and imply deception and dishonesty. The Prosecutor also said that the defendant Holmes’s testimony was “funny,” “disgusting,” “comical,” and “the most ridiculous thing I’ve ever heard.”

Additionally, the Prosecutor’s attempts at coupling the jigsaw puzzle analogy with a percentage of missing pieces in the defense attorney’s case was also reversible error. Moreover, comparing the reasonable doubt standard to the decision made at a cross-walk is error. In addition, telling the jury that its job is to ‘speak the truth,’ or some variation thereof, misstates the burden of proof and is also improper.

A prosecutor’s stating that a witnesses’ testimony is “the most ridiculous thing I’ve ever heard” is an improper expression of personal opinion as to credibility. Finally, a prosecutor’s behavior in whispering to the jury is improper, highly unprofessional and potentially damaging to the fairness of the proceedings.

My opinion? The WA Supremes made a good decision. Practicing law is hard. Conducting jury trials is very hard. Now imagine dealing with another attorney’s unprofessional conduct during trial. Unbelievable! Yes, these instances of misconduct happen. I speak from experience when I say it’s easy to get sucked into malicious and negative behavior, especially when attorney’s advocate in the heat of battle.

Nevertheless, Section 3.4 of Washington’s Rules of Professional Conduct require that attorneys be civil toward one another and the tribunal. It’s incredibly difficult for judges to analyze the legal issues over the furor of shouting attorneys. And it hurts the credibility of the entire legal institution when our citizens see us behaving badly. My heart goes out to the lawyers involved in the case. Hopefully, they worked out their differences.

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.

How High Is Too High to Drive?

Bellingham, Blood Test, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search Warrant, Washington State Patrol, , ,

How High Is Too High to Drive?

An interesting news article from the Bellingham Herald discusses how high is too high to drive after smoking marijuana.

As usual, the answers to this question were widespread:

“Pretty damned stoned is not as dangerous as drunk,” said Mark Kleiman, professor of public policy at the University of California, Los Angeles, who served as Washington state’s top pot consultant. He said Washington state has a law that’s far too strict and could lead to convictions of sober drivers, with many not even knowing whether they’re abiding by the law.

Washington state and Colorado, the only two states to fully legalize marijuana, have set a limit of five nanograms of active THC per milliliter of blood. In Washington state, legalization proponents included the language in the ballot initiative approved by voters in 2012.

While police can use breathalyzers to easily measure the amount of alcohol in one’s bloodstream, the best way to determine marijuana intoxication is by examining a blood sample. Last year, the U.S. Supreme Court complicated the situation for states by ruling that police must get a warrant before testing blood for a DUI.

As the debate heats up, both sides can point to competing research.

In February, researchers from Columbia University’s Mailman School of Public Health reported that fatal crashes involving marijuana use had tripled over the past decade, with one of every nine drivers now involved in a deadly accident testing positive for pot.

My opinion? The bad news is at the moment we don’t have have anything sensible to do about stoned driving. The good news is that it’s only a moderate-sized problem. I, for one, have not seen a dramatic increase in marijuana DUI’s and/or drug DUI’s. It simply hasn’t been an issue.  The best solution, it seems, is to wait for the science to improve.

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

State v. Roden: Text Messages Are Protected by Washington’s Privacy Act

Constitutional Rights, Drug Offenses, felony, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Washington Privacy Act: Amendments jeopardize protections for consumers | The Seattle Times

Good opinion.

In State v. Roden, the WA Supreme Court ruled that Washington’s Privacy Act is violated by an officer’s warrantless opening, reviewing, and responding to text messages sent to a suspect’s phone, before the suspect viewed the message.

In State v. Roden, Daniel Lee was arrested for possession of heroin. After the arrest, a police detective spent 5 to 10 minutes browsing through Lee’s cell phone. The detective noticed several text messages from Jonathan Roden. The detective arranged a drug deal with Roden via text messages. Roden was arrested for Attempted Possession of Heroin. The trial court denied Roden’s motion to suppress and found Roden guilty. On appeal, Roden argued that the detective’s conduct violated Washington’s Privacy Act.

The Washington Supreme Court agreed with Roden. It reviewed  the Privacy Act act and analyzed the following excerpt in pertinent part: “[I]t shall be unlawful for … the state of Washington, its agencies, and political subdivisions to intercept, or record any: (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.”

Furthermore, RCW 9.73.050 declares that evidence obtained in violation of the act is inadmissible for any purpose at trial.

Against this backdrop, the court gave the four-part analysis under State v. Christensen to be considered when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit ( 4) without the consent of all parties to the private. Roden stated the communications in the text message were intended to be private when intercepted by the detective posing as Lee.

Applying those factors, the Court reasoned that Washington’s privacy act was violated because the detective intercepted private communications without Lee’s or Roden’s consent or a warrant.

My opinion? Good decision. In my experience, this type of situation happens quite often. It’s entrapment, plain and simple. And it  violates a defendant’s rights in the process. Contact an experienced criminal defense attorney if you’re facing similar circumstances. Your privacy matters!

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.