Ohio v. Clark: Child Victim Hearsay Statements Are Admissible

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In Ohio v. Clark, the United States Supreme Court ruled that statements made by the 3-year-old victim to his preschool teacher were properly admitted at trial, despite the fact that the 3-year-old did not testify.

Here, defendant Darius Clark sent his girlfriend away to engage in prostitution while he cared for her 3-year-old son L. P. and 18-month-old daughter A. T. When L. P.’s preschool teachers noticed marks on his body, he identified Clark as his abuser. Clark was subsequently tried on multiple counts related to the abuse of both children. At trial, the State introduced L. P.’s statements to his teachers as evidence of Clark’s guilt, but L. P. did not testify. The trial court denied Clark’s motion to exclude the statements under the Sixth Amendment’s Confrontation Clause. A jury convicted Clark on all but one count. The state appellate court reversed the conviction on Confrontation Clause grounds, and the Supreme Court of Ohio affirmed. The U.S. Supreme Court stepped in to resolve the matter once and for all.

For those who don’t know, The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions.

Here, the U.S. Supreme Court reasoned that L. P.’s statements at trial – which were introduced as hearsay evidence through the testimony of a school counselor – did not violate the Confrontation Clause.

In reaching its decision, the Court said it’s prior decision in Crawford v. Washington held that the Confrontation Clause generally prohibits the introduction of “testimonial” statements by a non-testifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Additionally, a statement qualifies as testimonial if the “primary purpose” of the conversation was to “create an out-of-court substitute for trial testimony.” The Court addressed why L.P.’s statements were not “testimonial:”

“L. P.’s statements were not made with the primary purpose of creating evidence for Clark’s prosecution. They occurred in the context of an ongoing emergency involving suspected child abuse. L. P.’s teachers asked questions aimed at identifying and ending a threat. They did not inform the child that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation was informal and spontaneous. L. P.’s age further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause”

“Finally, although statements to individuals other than law enforcement officers are not categorically outside the Sixth Amendment’s reach, the fact that L. P. was speaking to his teachers is highly relevant. Statements to individuals who are not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonialthan those given to law enforcement officers.”

Furthermore, the Court found it irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. “Mandatory reporting obligations do not convert a conversation between a concerned teacher and her student into a law enforcement mission aimed at gathering evidence for prosecution.”

My opinion? I fear a slippery slope. Child victims are notoriously difficult. The first challenge is getting an interview. If defense counsel succeeds, they must be prepared to interview the child victim with a legion of DV advocates, investigating officers, parents, family friends and the Prosecutor attending the interview. And by this time, the matter has been discussed ad nauseum between the child and the aforementioned. Consequently, by the time the interview happens, the child has essentially been trained and coached to memorize a script and stick with it.

Now, with this opinion, it seems that school counselors can testify to statements made by the child victim., and that the child not even be made available to testify. Under the Washington Rules of Evidence – which strictly follow the Federal Rules of Evidence – ER 801 says, “Hearsay” is an out-of-court statement made to prove the truth of the matter asserted. Statements made by another are hearsay. Also, Hearsay is generally inadmissible. But now, under these circumstances, hearsay is admissible; and made worse by the fact that the defendant cannot confront the child witness at trial. This violates the essence of the 6th Amendment’s Confrontation clause. Period. Bad 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.

State v. Flores: WA Court of Appeals Decides Frisk for Gun Was Unconstitutional

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In State v. Flores, Division III of the WA Court of Appeals UPHELD the suppression of a gun that officers found on an individual who was walking with a known-gang member and fugitive who had just threatened another person with a firearm. The reason for the suppression? There were no grounds to frisk the defendant because he made no furtive movements, had no known violent propensities, and was compliant with all of the officer’s directions.

Here, Moses Lake police were responded to an anonymous report that Giovanni Powell held a gun to somebody’s head. Dispatch also reported an outstanding warrant for the arrest of Powell. He was a known gang member and a fugitive.

The defendant, Cody Flores, was with Powell. Although Flores had no warrants for his arrest and did not point a firearm at anyone, Flores did, in fact, possess a firearm on his person. Unfortunately, he possessed the firearm unlawfully because a prior felony conviction barred his possession.

Police apprehended both Powell and Flores. Although Flores complied with officers, had no known violent propensities and was compliant with all of the officer’s directions, Flores was nevertheless frisked. Officers found his firearm. He was charged with Unlawful Possession of a Firearm in the First Degree in violation of RCW 9.41.040(1)(a). However, Flores’ his defense attorney prevailed in a 3.6 Motion to suppress the firearm due to an unlawful search.

Among other findings, the trial court found that the officers lacked individualized articulable suspicion to suspect Cody Flores of criminal activity. The trial court granted Cody Flores’ motion to suppress evidence of the gun found on his person and dismissed the charge against him. The State filed an appeal.

The WA Court of Appeals sided with the trial court’s suppression. It reasoned that the Washington Constitution, not the Fourth Amendment to the United States Constitution, is the controlling law. Article I, section 7 of the WA Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The Court reasoned that WA’s protection encompasses and exceeds the protection guaranteed in the Fourth Amendment of the United States Constitution.

The Court further reasoned that, as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. There are five exceptions to the warrant requirement. They include (1) exigent circumstances, (2) searches incident to a valid arrest, (3) inventory searches, (4) plain view searches, and (5) Terry investigative stops. The State bears the burden of demonstrating that a warrantless seizure falls into a narrow exception to the rule. “This is a strict rule.” said the Court. “Exceptions to the warrant requirement are limited and narrowly drawn.

“Merely associating with a person suspected of criminal activity does not strip away the protections of the constitution,” said the Court. “In order for police to lawfully seize an otherwise innocent individual present with an arrestee, the arresting officer must articulate an ‘objective rationale’ predicated specifically on safety concerns.”

Finally, the court reasoned that automatically authorizing the search of non-arrested individuals because those individuals happen to be associated with the arrestee, or within the vicinity of the arrest, would distort the narrow limits of the warrant exceptions and offend fundamental constitutional principles. Because the privacy interest of a non arrested individual remains largely undiminished, full blown evidentiary searches of non-arrested individuals are constitutionally invalid even when officers may legitimately fear for their safety. “A generalized concern for officer safety has never justified a full search of a non-arrested person,” said the court.

With that, the Court of Appeals affirmed the trial court’s suppression of evidence and dismissal of charges against Cody Flores.

My opinion? This is a well-reasoned case. It’d be different if the defendant was doing something unlawful, being uncooperative and/or raising safety concerns with the police. Here, the situation was purely mathematics. Again, there can search incident to arrest if there is no arrest. And there can be no arrest without probable cause. Here, there was no probable cause to arrest and search Mr. Flores. Period.

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. E.J.J.: Exercising Freedom of Speech is NOT Obstructing.

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Due Process, Jury Trial, Juvenile, law enforcement, misdemeanor, Obstructing, police, Probable Cause, Search and Seizure, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Student Press Law Center | Know your rights when covering a protest

Excellent opinion.

In State v. E.J.J., the Washington Supreme Court  held that a juvenile offender, who called the officers abusive names, yelled, and used profanity toward the officers while the officers were engaged in a criminal investigation, CANNOT be convicted of Obstructing a Law Enforcement Officer. The words the juvenile directed at the officers are protected by the First Amendment. The obstruction statute is also not violated by a citizen’s presence at a scene, provided the citizen does not physically interfere with police. 

Here, juvenile defendant E.J.J. was charged with Obstructing a Law Enforcement Officer under RCW 9A.76.020(1). Under this law, a person is guilty of obstructing a law enforcement officer if the person willfully hinders, delays, or obstructs any law enforcement officer in the discharge of his or her official powers or duties. Obstructing is a gross misdemeanor punishable up to 1 year in jail and a $5,000.00 fine.

This case began as a call for police assistance to E.J.J. ‘s house to help with his intoxicated, out-of-control sister, R.J. (a juvenile at the time). The police responded and began their intervention by escorting R.J. out of the house 10 to 15 feet away from the front door, where the officers attempted to calm her down. E.J.J. grew concerned when he saw an officer reach for what he perceived to be a nightstick. E.J.J. exited the house and stood on the porch, telling the officers that R.J. was his sister and that they should not use the nightstick. The officers advised him that they were in the middle of their investigation and instructed him multiple times to leave the scene and return to the house.

Initially, E.J.J. did not comply, questioning why he had to return to the house. When, eventually, he did return to his home, he stood in the open doorway and continued his verbal interaction with the officers. The house had double doors: a wrought iron screen door, through which someone could see out and communicate through, and a second, solid wood door.

The officers directed E.J.J. multiple times to close the solid wood door and to withdraw further into the home, but E.J.J. refused, stating that he wanted to supervise the scene from the doorway ( 10 to 15 feet away from the other officers and R.J.) to make sure that R.J. was not harmed. E.J.J. continued to stand behind the closed wrought iron door. Multiple times, an officer reached into the home to close the solid door. E.J.J. would immediately reopen it. At this point, E.J.J. was irate, yelling profanities and calling the officers abusive names. An officer warned E.J.J. that he could be arrested for obstruction. After E.J.J. continued to reopen the solid door, an officer put him under arrest for obstruction of a law enforcement officer. The entire interaction lasted approximately 10 to 15 minutes.

E.J.J. was found guilty at trial. he appealed his conviction to the WA Court of Appeals. Unfortunately, the Court of Appeals upheld E.J.J.’s conviction. The case was again appealed, only this time to the WA Supreme Court.

 The WA Supreme Court reasoned that many court cases have consistently and strongly held that people cannot be held liable when exercising their right to speak. “While E.J.J. ‘s words may have been disrespectful, discourteous, and annoying, they are nonetheless constitutionally protected.”

The Court further reasoned that our cases have consistently required conduct in order to establish obstruction of an officer. “In other words, a conviction for obstruction may not be based solely on an individual’s speech because the speech itself is constitutionally protected. This review is also consistent with the approach established by the United States Supreme Court’s See Street v. New York.”

The WA Supreme Court had many reasons for disagreeing with the WA Court of Appeals. First, the WA Supremes disagreed that E.J .J.’ s physical approach toward the officers was sufficient evidence of conduct to support his conviction: “E.J.J. did not physically interfere with or touch either the police or his sister. Furthermore, the trial court’s findings of fact provide that E.J.J. did not make any threatening movements toward the officers at any time.”

Second, the WA Supremes disagreed that E.J.J.’s presence at the scene escalated the situation: “E.J.J. ‘s mere presence at the scene cannot constitute conduct. E.J.J. had every right to stand on his own property, provided he did not physically interfere with police.”

Third, the WA Supremes disagreed that E.J.J.’s refusal to obey the officers’ repeated requests to leave the scene was sufficient evidence of conduct: “This exchange is so intertwined with E.J.J.’s protected speech that we find insufficient evidence of E.J.J. ‘s conduct to support his conviction on this basis.”

Finally, the WA Supremes disagreed there was evidence of obstruction because an officer was eventually required to escort E.J.J. back to the home, thus delaying officers: “Inconvenience cannot, taken alone, justify an arrest for obstruction.” The Court concluded with the following:

“Where individuals exercise their constitutional rights to criticize how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction. Such a conviction is not permitted under the First Amendment. After a comprehensive review of the record and the trial court’s findings, the decision of the trial court is reversed and charges are dismissed.”

My opinion? EXCELLENT decision. I’ve had many, many clients charged with Obstructing simply because they voiced a heated opinion with law enforcement officers during an investigation. Although it’s never okay to be disrespectful toward law enforcement, obstructing requires conduct – plain and simple. I’m pleased our Washington Supreme Court made the right 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.

States With the Highest DUI Arrests

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States With the Most Drunk Driving Problems (2021)

Today, a national study on DUI arrests was released by Project Know, a drug addiction resource center that combats substance addiction and the societal issues that stem from it. In it, they sifted through data from federal agencies to figure out where you are most likely to get arrested for a DUI, per capita.

For example, Seattle had 2,861 DUI incidents in 2013, which puts its DUI arrest rate at 43.8 per 10,000 residents—slightly lower than Washington’s 2013 rate of 49.8. There were more DUIs in Seattle in 2013 than in 2012 or 2011 and, so far this year (up to November 16th), there have been 2,588, which should put the end-of-year total at about the same level as 2013’s.

My opinion? Interesting projections. Let’s see data showing the lobbying efforts and financial contributions of different anti-drinking-&-driving groups like Mothers Against Drunk Driving (MADD) . I wonder if their efforts have anything to do with the projections and proactive enforcement of DUI laws in Washington? Just a thought.

New Technology Could End DUI

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Clemson Vehicular Electronics Laboratory: Alcohol Sensor

The Washington Post reported that recent technological breakthroughs could virtually eliminate DUI’s which kill thousands of Americans each year. The technology could begin appearing in cars in five years.

Unlike ignition interlock devices, the new equipment won’t require a driver to blow into a tube. Instead, either a passive set of breath sensors or touch-sensitive contact points on a starter button or gear shift would immediately register the level of alcohol in the bloodstream. Drivers testing above the legal limit wouldn’t be able to start the car.

“The message today is “Can we do this?” but “How soon can we do this?” said Mark Rosekind, administrator of the National Highway Traffic Safety Administration (NHTSA).

Though no cost-per-car estimate has been made, once the sensors go into general production it’s anticipated the cost will be equal to that of seat belts or air bags, about $150-$200 per vehicle.

The article said that the goal is to produce a device that will react in less than a second and function without maintenance for at least 10 years or 157,000 miles. Sensors that detect alcohol levels in the air can react in less than a second after a driver gets into the vehicle. The technology is an offshoot of advances in sensory detection since the Sept. 11, 2001, terrorist attacks. With sudden demand for bomb detection sensors, the ability of machines to scan people, packages and luggage for tiny trace elements has expanded exponentially.

The American Beverage Institute, a restaurant trade association, opposes the alcohol detection system.

Data from the NHTSA shows that in 2013, 10,076 people were killed in car crashes involving drunk drivers. That was less than half the number of alcohol-related traffic deaths recorded in 1982, when 21,113 people were killed. In the past 30 years, 401,404 people have died in drunken-driving crashes.

My opinion? It’ll be interesting to see how various lobby groups fight or support this new technology.

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.

Happy Hour in the USA: Not All States Are Created Equal

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Believe it or not, many U.S. States have banned Happy Hours.

A recent article from http:www.cityab.com reviewed the 25 biggest metropolises in the U.S. to map where you can grab a cheap post-work brew and where you can’t. Some information is provided in the photo above.

According to CityLab, the reason why the laws are so different in many cities is because many bans were implemented in the 1980s when citizen groups led by Mothers Against Drunk Driving teamed up with the National Highway Traffic Safety Administration (NHTSA) and presented state legislatures with Statistical Analysis of Alcohol-Related Driving Trends from 1982-2005. The statistics show that in 1982, for instance, more than half of the country’s fatal crashes involved at least one driver with a blood alcohol level of .08—the legal limit.

Additionally, in 1984, the same year Massachusetts passed its anti-happy hour law, President Ronald Reagan declared the first National Drunk and Drugged Driving Awareness Week, and Congress passed the National Minimum Drinking Age Act, which effectively set the federal drinking age to 21.

These stories share a common truth: basically, the variability in cities’ happy hour laws can be chalked up to local politics and general sentiments about drinking.

The “No Happy Hour Restrictions” states are marked in green. Cities include Denver Colorado, Washington D.C. and Jacksonville, Florida. The “Happy Hour Restricted” states are marked in red. They include Boston, Minneapolis and Charlotte, South Carolina.

Some interesting states bear mention. Purple states allow happy hours to happen, but with restrictions: they can only take place at certain times of day, at certain price levels, and in certain quantities. In Austin, for instance, purveyors are compelled to close up happy hour shop at 11 p.m. California establishments can’t sell two drinks for the price of one. In New York, bars can’t offer beers at less than half their normal price. In Pennsylvania, you can only have two hours of happiness per day, and not between midnight and closing time. Interesting.

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. Barry: Defendant’s In-Court Demeanor Leads to Conviction

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Jury Trial, Self-Incrimination, Sex Crimes, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Defendant collapses in court after guilty verdict - YouTube

In State v. Barry, the WA Supreme Court held that a lower trial court properly answered a jury’s question regarding whether it may consider observations of the defendant’s actions and demeanor during the court case as “evidence” by stating, “Evidence includes what you witness in the courtroom.”

Here, defendant Robert Barry went to jury trial facing two counts of Child Molestation in the First Degree. He did not testify. After the parties rested their cases, the jury deliberated. During deliberations, the jury asked the court whether it may consider “observations of the defendant’s actions-demeanor during the court case” as “evidence.” In response, the trial court instructed the jury that “evidence includes what you witness in the courtroom.” The court record, however, contained no references whatsoever to Barry’s in-court demeanor.

The jury convicted Barry of both counts of child molestation. He appealed, claiming that the trial court’s instruction in response to a jury question violated his Fifth Amendment and Sixth Amendment rights under the United States Constitution.

The WA Supreme Court reasoned that the Fifth Amendment does not extend to the jury’s generic reference to “actions-demeanor,” and the Sixth Amendment does not transform all evidentiary errors into errors of constitutional magnitude. Consequently, no constitutional error occurred.

Additionally, the Court said that the “silence” on Barry’s demeanor makes it impossible to determine that Barry was prejudiced. Thus, neither party can “prove” one way or another whether the error was prejudicial. The court also emphasized the following:

“The trial court instructed the jury that ‘the fact that the defendant has not testified cannot be used to infer guilt or prejudice against him in any way,’ and that its instructions are to be taken as a whole. A jury is presumed to follow the court’s instructions, and the record presents no indication that the jury failed to heed the court’s instruction regarding the defendant’s failure to testify in this case.”

 With that, the WA Supreme Court upheld the trial court and found Mr. Barry guilty.

My opinion? I agree with Justice Johnson’s dissent. Although there’s no record of Barry’s demeanor during trial, we do know that before trial began, the court advised Barry that he should refrain from any display of emotion. It advised that everyone in the courtroom remain stone-faced throughout the trial and that no one should show any reaction to the children’s testimony. The court explained to Barry that such a showing of emotion could ”backfire” on his case.

Justice Johnson reasoned that assuming Barry complied with that instruction, his observable lack of remorse throughout trial likely prompted the question from the jury.

“By then instructing that the jury could consider Barry’s demeanor throughout trial as evidence of his guilt, the court put him in the constitutionally intolerable position of either waiving his constitutional right to refuse to testify, so that he could explain his remorseless attitude throughout trial or leave the jurors to formulate their own inferences about his behavior.”

I agree. The defendant was placed between a rock and a hard place. His unenviable posititon probably may have affected the quality of his defense. Unfortunately, we don’t know because the court record says nothing about his demeanor. More than anything, it’s THIS – the lack of court record regarding the defendant’s demeanor – which is so disturbing. Justice Johnson articulated this same belief:

After the defense has rested its case, and after closing arguments, the trial court cannot instruct that those observations may be treated as “evidence” bearing on the determination of guilt or innocence when the defendant has had no opportunity to challenge or explain that evidence. This is akin to allowing a prosecutor to argue evidence not presented at trial or allowing a witness to testify privately without cross-examination, to the jury during its deliberations. It deprives the defendant his right to confront the evidence, and at the very least, it deprives Barry an opportunity to challenge the propriety of the use of this “evidence” in the determination of guilt.

Exactly. At best, this is a murky opinion. At worst, it violates the defendant’s rights at trial.

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. Wisdom: Unlawful Search of Zipped Shaving Kit Bag

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Miranda, police, Possession of Stolen Motor Vehicle, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Interesting opinion. In State v. Wisdom, the WA Court of Appeals Division III decided the removal and warrantless inspection of a zipped shut shaving kit bag found in the front seat of a stolen vehicle the defendant was driving was not a lawful search incident to arrest because  the defendant sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. The methamphetamine found in the zipped shut shaving kit is not lawful pursuant to the impound inventory doctrine, as unzipping the kit exceeded the lawful scope of an impound.

Defendant Heath Wisdom drove a Chevrolet pickup truck with an ATV in its back. Someone earlier reported both vehicles as stolen. Yakima County Sheriff Deputy Nate Boyer, while on patrol, passed the pickup, and Boyer’s automated license plate reader identified the pickup as stolen. Officer Boyer pulled Wisdom over and arrested him for possession of a stolen vehicle. Boyer handcuffed Wisdom, searched his body, and escorted him to the patrol vehicle. Officer Boyer found on Wisdom’s body a pipe that Wisdom admitted he used for smoking methamphetamine.

Deputy Nate Boyer advised Heath Wisdom of his Miranda rights. Officer Boyer asked if there were drugs in the truck, and Wisdom replied that methamphetamine lay on the front seat. Officer Boyer looked inside the cab of the truck and saw filters, some cleaner, and a black “shaving kit type” bag. Officer Boyer concluded that the bag contained the methamphetamine. The toiletry bag was closed, but Boyer spied money through the mesh side of the bag.

After photographing the truck, Deputy Boyer removed the bag from the vehicle, opened it, and found methamphetamine, cocaine, ecstasy, heroin, drug paraphernalia, and two thousand seven hundred dollars in cash. Heath Wisdom told Deputy Boyer that he owned the black bag. Deputy Boyer had not asked Wisdom if he owned the black bag before searching inside the bag.

Deputy Boyer never obtained a warrant for his search, nor did he request Heath Wisdom’s consent before opening the black bag. Law enforcement impounded the truck and ATV, since the legal owner could not be located.

The State of Washington charged Heath Wisdom with three counts of Possession of a Controlled Substance in violation of RCW 69.50.4013(1) (cocaine, ecstasy, and heroin) and one count of Possession of a Controlled Substance with Intent to Deliver under RCW 69.50.401(1) (methamphetamine). Wisdom moved under CrR 3.6 to suppress all evidence found in the black toiletry bag. However, the trial court denied Heath Wisdom’s motion to suppress. The WA Court of Appeals accepted review of this case.

First, the Court reasoned that the search incident to arrest exception to the warrant requirement did NOT excuse police from obtaining a search warrant before unzipping and perusing the inside of the shaving kit bag. The court’s opinion was quite lengthy in explaining the need for society to trust police, and that doing so required officers to obtain search warrants in cases like this, and that failure to do so violates a defendants rights under article I, section 7 of the WA Constitution as well as the Fourth Amendment to the U.S. Constitution.

The Court emphasized how the caselaw treats “luggage and other closed packages, bags, and containers” as unique for purposes of police searches. Washington courts recognize an individual’s privacy interest in his closed luggage, whether locked or unlocked. Indeed, the Court gave a very colorful analyses on this subject:

A person does not rummage through a woman’s purse, because ofsecrets obtained therein. A man’s shaving kit bag can be likened to a woman’s purse. The kit bag could obtain prescription drugs, condoms or other items the owner wishes shielded from the public. The bag is intended to safeguard the privacy of personal effects. Literature, medicines, and other things found inside a bag may reveal much about a person’s activities, associations and beliefs.

The Court further reasoned that Washington allows a few jealously and carefully drawn exceptions to the warrant requirement, which include exigent circumstances, searches incident to an arrest, inventory searches, plain view searches, and Terry stops. Furthermore, under Arizona v. Gant, a warrantless vehicle search incident to arrest is authorized when the arrestee would be able to obtain a weapon from the vehicle or reach evidence ofthe crime of arrest to conceal or destroy it. Here, Heath Wisdom sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. He lacked access to the bag.

Furthermore, under State v. Snapp, the Court reasoned the WA Constitution disapproves expansive application of the search-incident-to arrest exception to the period of time after the arrestee is secured and attendant risks to officers have passed. When a search can be delayed without running afoul of concerns for officer safety or to preserve evidence of the crime of arrest from concealment or destruction by the arrestee, and does not fall within another applicable exception, the warrant must be obtained. The police officer can prevent destruction of evidence by holding the bag as a sealed unit until obtaining a warrant.

Finally, the Court ruled that the police officer’s inventorying of the pickup’s contents did NOT excuse the need to obtain a search warrant. Inventory searches, unlike other searches, are not conducted to discover evidence of crime. Although a routine inventory search does not require a warrant, a police department policy should not, however, justify an unconstitutional search. The permitted extent of an inventory search pursuant to police department policy must be restricted to effectuating the purposes that justify the exception warrant clause.

In conclusion, the Court of Appeals held the warrantless search inside of Mr. Wisdom’s black bag was not justified by either a search incident to arrest or an inventory search. The court reversed the trial court’s denial of Mr. Wisdom’s motion to suppress evidence, reversed his four convictions, and dismissed all charges filed against him.

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. Fuentes & Sandoz: Are Terry Stops Legal in High-Crime Areas?

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Joyce Carol Oates revisits past in 'High Crime' tales

The WA Supreme Court consolidated two search & seizure cases with very similar facts. Both cases involve Terry stops of a defendants who entered a high-crime areas and visited homes occupied by suspected drug dealers.

TERRY STOPS

 Generally, under the Fourth Amendment to the United States Constitution and article I, section 7 of Washington’s constitution, an officer may not seize a person without a warrant. However, exceptions exist. A Terry investigative stop is one of the exceptions.

For those who don’t know, a “Terry stop” is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest. Picture an officer walking up to you and asking for your I.D. The name derives from Terry v. Ohio, 392 U.S. 1 (1968), in which the U.S. Supreme Court held that police may briefly detain a person who they reasonably suspect is involved in criminal activity. Also, police may conduct a limited search of the suspect’s outer garments for weapons if they have a reasonable and articulable suspicion that the person detained may be “armed and dangerous”. When a search for weapons is authorized, the procedure is known as a “stop and frisk.”

To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed. Reasonable suspicion depends on the “totality of the circumstances”, and can result from a combination of facts, each of which is by itself innocuous.

State v. Fuentes

In this case, police officers were conducting a stakeout of a known drug house. They saw Marisa Fuentes park her car across the street from the apartment. She walked up to the apartment, entered, stayed for about five minutes, and returned to her car. She opened the trunk of her car and removed a small plastic bag. The bag contained something about the size of a small football. Then Fuentes reentered the apartment, stayed for about five minutes, and returned to her car with a bag that had noticeably less content than when she entered the apartment.

Based on what officers observed, police stopped Fuentes’ car on suspicion of narcotics activity. An officer advised Fuentes that he needed to talk with her. For safety reasons, the officer requested that Fuentes come to the police vehicle, which she did. The officer read Fuentes her Miranda rights. Fuentas waived those rights and admitted she delivered marijuana to Fenton’s apartment.

The State charged Fuentes with Delivery of Marijuana. Fuentes moved to suppress evidence uncovered from the investigative stop of her car, including her statement about delivering marijuana, arguing that the police lacked reasonable suspicion to justify the Terry stop of her vehicle. The trial court concluded that officers had reasonable   suspicion to stop the vehicle and therefore denied the motion to suppress. Fuentes was subsequently convicted of delivery of marijuana at a stipulated facts trial. She appealed.

The WA Supreme Court decided the police had reasonable suspicion of criminal activity particularized to Fuentes before the stop occurred.

The officers in this case. They knew about past drug activity at Fenton’s apartment. Police made controlled buys from Fenton and conducted a search of the apartment 11 months before and found drugs. The officers also testified they had recent information from individuals arrested on drug-related charges that Fenton was still dealing drugs. Additionally, officers observed foot traffic that morning (10 visits between 10 p.m. and midnight) that suggested ongoing drug transactions.

Additionally, officers could reasonably infer that Fuentes participated in the ongoing drug transactions: Fuentes entered the apartment briefly, then returned to her car. She then carried a plastic bag into the apartment, and she left with a bag that had noticeably less content. Her stay lasted approximately five minutes. From these observations, officers could form a reasonable suspicion that Fuentes made a delivery at the apartment.

The WA Supremes affirmed the Court of Appeals in Fuentes because, under the totality of circumstances, the officers had individualized reasonable suspicion of criminal activity.

State v. Sandoz

In this case, around 11:30 p.m., Officer Chris Pryzgocld drove his patrol car past a six-unit apartment building in SeaTac. A high number of documented criminal incidents occurred in the area of this apartment building, including drug-related activity.

He saw a white vehicle parked illegally. The driver of the Jeep slumped down, as if to hide from the officer’s view, as the officer drove by. The officer parked his marked patrol car about 20 yards away. After waiting, he made contact with the slumped-over driver.

The officer observed Steven Sandoz leaving the apartment. The officer asked Sandoz what was going on. Sandoz replied that his friend gave him a ride to collect $20 from a friend. After more conversation, Sandoz admitted that he had a drug problem and said that he had a crack pipe in his pocket. Sandoz took out the pipe, and the officer arrested Sandoz for possession of drug paraphernalia. During a search incident to arrest, the officer felt something in Sandoz’s groin area. The officer read Sandoz his Miranda rights, and Sandoz admitted that he had two small envelopes of cocaine in his underwear.

Sandoz was arrested and charged with Possession of Cocaine. Although he tried suppressing the evidence at pretrial, the Judge denied the motion for the following reasons: (1) the officer knew the area had extremely high drug activity based on 911 calls and drug dealing investigations, (2) the officer knew that the apartment Sandoz exited belonged to Ms. Meadows, who had numerous drug-related convictions, including possession with intent to deliver, (3) the officer had express authority from the complex owner to trespass nonoccupants for “loitering” at the complex, (4) the Jeep did not belong to any of the tenants at the complex, (5) the driver of the Jeep slouched down when the officer drove past, (6) the driver and Sandoz had conflicting stories for why they were in the area, (7) Sandoz looked surprised when he saw the officer, and (8) Sandoz visibly shook and looked pale when the officer talked to him.

Sandoz was found guilty at a bench trial he appealed. The WA Supreme Court granted certiorari.

Under the totality of the circumstances, the WA Supreme Court ruled that the officer did not have reasonable suspicion of criminal activity individualized to Sandoz to justify his Terry stop. First, Sandoz’s surprise at seeing the officer did not suggest criminal behavior. Next, the driver’s story did not conflict with Sandoz’s story. The driver said that his friend called him for a ride, and Sandoz said his friend gave him a ride to the apartment to collect $20. Rather than conflict, the stories confirmed one another.

Furthermore, as to Sandoz’s physical appearance, the officer did not attribute Sandoz’s pallor or shaking to drugs or to any illicit conduct. Thus, this fact does not add to circumstances that suggest criminal activity. The fact that the officer did not recognize the Jeep might justify the officer’s contact with the driver, but the oflicer did not connect this fact with anything the officer observed about Sandoz.

Additionally, Sandoz did not loiter or trespass. “Loiter” means “to remain in or near a place in an idle or apparently idle manner.” Sandoz did not remain idle: he left the apartment and walked immediately to the Jeep without stopping. Although the individuals in the Jeep may have loitered, that issue is not before the court. Similarly, Sandoz did not appear to trespass: he entered a tenant’s apartment, stayed inside at least 15 minutes without any known discord, and left directly to the Jeep. The facts suggest that Sandoz was an invited guest of Ms. Meadows, and as the officer stated, simply going into an apartment does not equal wrongdoing.

Finally, the Court reasoned that although Sandoz was visiting the apartment of a suspected drug dealer late at night in a high-crime area, this fact by itself does not justify a Terry stop. Other facts must exist to suggest criminal behavior. An officer’s hunch does not justify a stop. The totality of the circumstances in this case do not justify a Terry stop.

The WA Supremes concluded officers did not have reasonable suspicion that Sandoz engaged in criminal activity and reversed the Court of Appeals decision affirming his guilt.

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. I.B.: Shaking Your Head Means “No” Under Miranda.

Bellingham Defense Attorney, Burglary, Constitutional Rights, Dismissal, Due Process, felony, Interrogation, Juvenile, law enforcement, Miranda, police, Property Crimes, Self-Incrimination, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. I.B., the WA Court of Appeals decided a juvenile suspect’s shaking of his head in the negative after police asked him, post Miranda, if he was willing to talk was an unequivocal assertion of his Fifth Amendment rights.

Here, 15-year-old defendant I.B. was taken into custody as a suspect in a Residential Burglary crime. While being interrogated, I.B. shook his head in the negative after police asked him if he was willing to talk. Nevertheless, police continued their questioning and I.B. made inculpatory statements against his best interests. The trial court suppressed I.B.’s statements at his 3.5 Hearing and concluded that I.B’s shake of the head signaled an assertion of his right to remain silent. Later, I’B’s case was dismissed. The State appealed the trial court’s suppression.

The issue before the Court of Appeals was whether I.B.’s shaking his head in the negative after being asked if he was willing to talk was an unequivocal assertion of the right to remain silent. The court decided it was.

The court reasoned that the Fifth Amendment to the United States Constitution provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To counteract the inherent compulsion of custodial interrogation, police must administer Miranda warnings. Miranda, 384 U.S. at 479. Miranda requires that the defendant “be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Once a suspect invokes his right to remain silent, police may not continue the interrogation or make repeated efforts to wear down the suspect.

Furthermore, the court reasoned a suspect need not verbally invoke his right to remain silent. In fact, Miranda sets a low bar for invocation of the right: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74 (emphasis added). However, suspects must “unambiguously” express their desire to be silent. The test as to whether a suspect’s invocation of his right to remain silent was unequivocal is an objective one, asking whether'” a reasonable police officer in the circumstances would understand the statement'” to be an invocation of Miranda rights. Once a suspect has clearly invoked the right to remain silent, police questioning must immediately cease.

Here, I.B. unequivocally invoked his right to remain silent. Nothing in the circumstances leading up to I.B.’s invocation rendered his head movement ambiguous. The police officers read I.B. his Miranda rights and I.B. understood his rights. Both officers testified they understand shaking the head side to side to communicate the word ‘No.’ This affirmative conduct unambiguously signaled LB.’s desire for the questioning to cease. Consequently, the trial court properly suppressed LB.’s custodial statements.

My opinion? Good decision. In the context of interrogations, shaking one’s head side to side means no. There’s no other reasonable interpretation.

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.