Category Archives: Constitutional Rights

Cruel & Unusual Punishment?

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In State v. Schmeling, the WA Court of Appeals Division II decided that Felony Possession of a Controlled Substance is constitutional as applied under the Eighth Amendment and under the Fourteenth Amendment’s due process clause even though the statute makes possession of very small amounts of a controlled substance a felony without knowledge of possession or intent to possess.

Here, as part of a theft investigation, law enforcement officers searched Richard Schmeling’s car and uncovered two small baggies that contained white residue. The residue was tested and turned out to be methamphetamine. The State charged Schmeling with Felony Possession of a Controlled Substance. Schmeling’s first trial ended in a mistrial because of a hung jury. On retrial, the jury convicted Schmeling. He appealed his conviction on the argument that RCW 69.50.4013 violates the Eighth Amendment prohibition of cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process because it makes possession of drug residue a felony without requiring any culpable mental state.

The Court of appeals reasoned that Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The basic concept of the Eighth Amendment is that punishment for a crime must be proportionate to the offense. There are two types of Eighth Amendment analysis: (1) determining whether a sentence is disproportionate to the particular crime, and (2) using categorical rules to define constitutional standards for certain classes of crimes or offenders.

  1. WAS SCHMELING’S SENTENCE PROPORTIONATE TO HIS CRIME?

The Court gave historical background showing that many Eighth Amendment cases address whether a particular punishment is disproportionate to the crime. The Eighth Amendment does not require strict proportionality between crime and sentence and forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Most courts have shown a reluctance to review legislatively mandated sentences. As a result, successful challenges to the proportionality of sentences are exceedingly rare.

Here, Schmeling argues that classifying possession of small amounts of a controlled substance as a felony without a knowledge or intent constitutes cruel and unusual punishment. However, the Court of Appeals reasoned that the WA Supreme Court rejected a similar argument in State v. Smith. In that case, Smith was convicted of possession of more than 40 grams of marijuana, which was punished as a felony. He argued that the seriousness of the offense did not warrant classifying his crime as a felony. The court rejected Smith’s argument, noting that it was unaware of any authority supporting the proposition that classification alone could constitute cruel and unusual punishment. The court also held that Smith’s actual sentence was not grossly disproportionate to his offense. Consequently, under the traditional proportionality analysis, Smith controls. Therefore, classification of a crime as a felony despite the absence of a knowledge or intent requirement does not result in grossly disproportionate punishment.

2. WAS SCHMELING’S SENTENCE UNCONSTITUTIONAL GIVEN THE NATURE OF THE OFFENSE OR THE CHARACTERISTICS OF THE OFFENDER?

This analysis involves two steps. First, the reviewing court considers “objective indicia of society’s standards (categorical approach), as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Second, the reviewing court considers precedent and its own understanding and interpretation of the Eighth Amendment to determine in the exercise of its own independent judgment whether the punishment is unconstitutional.

The Court acknowledged that Schmeling wanted them to apply a categorical approach. However, the Court of Appeals declined to apply the categorical approach to punishment of adult drug offenders like Schmeling. It held that under State v. Smith, RCW 69.50.4013 does not violate the Eighth Amendment even though it punishes the possession of small amounts of controlled substances as a felony without imposing a knowledge or intent element.

3. DID SCHMELING’S SENTENCE VIOLATE DUE PROCESS?

In short, the Court held that RCW 69.50.4013 does NOT violate due process even though it makes possession of drug residue a crime without requiring any culpable mental state.

The court reasoned that Strict Liability Crimes – crimes with no knowledge or intent  requirement – do not necessarily violate due process. “We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”

The Court of Appeals further reasoned that WA’s Supreme Court repeatedly has stated that the legislature has the authority to create strict liability crimes that do not include a culpable mental state. Also, our Supreme Court twice has directly addressed in two other cases whether the elements of possession of a controlled substance under prior versions of RCW 69.50.4013 contains a knowledge or intent element. Those cases were State v. Bradshaw and State v. Cleppe. In both cases, the court held that the legislature deliberately omitted knowledge and intent as elements of the crime and that it would not imply the existence of those elements.

Here, Schmeling cites two cases from other jurisdictions holding that a strict liability offense violated due process. However, given our Supreme Court’s repeated approval of the legislature’s authority to adopt strict liability crimes, the Court found Schmelling’s arguments unpersuasive.

In sum, the Court of Appeals held that RCW 69.50.4013 does NOT violate due process even though it does not require the State to prove intent or knowledge to convict an offender of possession of a small amount of a controlled substance. It affirmed Schmeling’s conviction and sentence.

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.

U.S. Supreme Court to Update DUI Procedures

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, law enforcement, marijuana, misdemeanor, police, Search and Seizure, Search Warrant, Whatcom County Criminal Defense, , ,


The US Supreme Court plans to update the rules for prosecuting individuals accused of drunk driving by reviewing a trio of cases dealing with “Refusal” statutes.

In North Dakota, a state law makes it a crime for a motorist to refuse to take “any” type of test — blood, alcohol or urine — used to prosecute driving under the influence (DUI) cases. The court will decide the constitutionality of this provision in the context of two cases, Birchfield v. North Dakota and Beylund v. North Dakota, each of which presents the same question from a slightly different angle.

In Beylund, motorist Steve Michael Beylund agreed to take a blood test after being threatened with criminal penalties if he refused. In Birchfield, motorist Danny Birchfield refused to take a breath test. The highest court in North Dakota reviewed the existing legal precedent and found no reason to overturn the refusal law.

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

The North Dakota justices wrote, “Birchfield has not drawn our attention to any appellate court decisions striking down criminal refusal statutes, and we have found that since the U.S. Supreme Court’s ruling in McNeely, criminal refusal statutes have continued to withstand Fourth Amendment challenges, particularly in Minnesota.”

Last month, however, in Hawaii v. Won, the Hawaii Supreme Court cited the US Supreme Court’s reasoning in finding refusal statutes as unconstitutional. In light of McNeely, Hawaii’s justices decided the US Supreme Court had clearly ordered law enforcement to obtain a warrant before compelling a “search” of a person’s blood, as the Fourth Amendment requires.

The US Supreme Court will tackle the different rulings from these States in the context of a third case, Bernard v. Minnesota, which deals with that state’s law treating a breath test as a “search incident to arrest.” Here, William Robert Bernard Jr used his truck to pull a boat out of the water. Officers believed he was DUI. After Bernard was arrested, he refused a breath test.

At any rate, the U.S. Supreme Court will soon decide whether criminalized refusal statutes represent a DUI exception to the Constitution.

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. Cherry: Consent & Self-Incrimination

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In State v. Cherry, the WA Court of Appeals Division II decided that a police officer’s questions to the passengers of a vehicle – which were intended to determine whether one of the passengers could safely remove the defendant’s car from the scene – were routine booking questions and did not violate the defendant’s Fifth Amendment rights.

Defendant Mathew Cherry was arrested for driving with a suspended license. He was driving two passengers. When the police officer asked Cherry to confirm who was in the car, Cherry identified his two passengers. When asked whether either passenger could take the car, Cherry responded that neither had a license and that he did not know anyone who did. The officer told Cherry that his car would be impounded.

Cherry consented to a search of his car. A pipe containing methamphetamine residue was found. When Cherry was booked into jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was seen between his legs.

The State charged Cherry with Unlawful Possession of a Controlled Substance and Tampering With Evidence. Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the officers threatened to have his car impounded if he did not consent to its search and that his consent was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the admission of his statements to police. At trial, a jury found Cherry guilty as charged. He appealed.

Ultimately, the Court of Appeals upheld Cherry’s convictions. Here, the officer’s questions to Cherry’s passengers were not intended to and did not elicit incriminating information. Rather, the questions were intended to determine whether Cherry’s car could be safely removed from the scene.

Additionally, the court disagreed with Cherry’s arguments that officers were not permitted to ask for consent to search his car after he invoked his right to remain silent. Here, the officer informed Cherry of his Miranda rights before requesting Cherry’s consent to search the car. The court reasoned that the request for consent to search was not designed to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore, law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent to search his car after Cherry had invoked that right.

Moreover, Cherry’s statements to police that he had consumed drugs earlier that day were admissible, and not made in response to any questioning likely to elicit an incriminating response. The court reasoned that even if Cherry’s statements were prompted by watching the police search his car, as Cherry now argues, they were not prompted by unlawful interrogation. There was no violation of Cherry’s right to remain silent. Therefore, his statements were properly admitted.

Finally, the court disagreed with Cherry’s arguments that his consent to search was not voluntary, and therefore, it violated the Fourth Amendment and the evidence found during the search is inadmissible. Here, under these facts, Cherry clearly consented.

For all of these reasons, the Court of Appeals affirm Cherry’s 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.

State v. Hampton: You Can’t Replace Your Attorney at 11th Hour.

Bellingham Defense Attorney, Constitutional Rights, felony, Jury Trial, Rape, Sex Crimes, Sixth Amendment, Speedy Trial & Continuances, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Things to Consider Before Firing Your Attorney

In State v. Hampton, the WA Supreme Court decided  It was not an abuse of discretion for a trial judge to deny a defendant’s request to delay trial to allow him to replace his public defender with a private attorney.

Mr. Hampton was charged with Rape in the Second Degree. On the eve of his trial, Hampton moved to replace his appointed counsel with a new private attorney on the condition that the trial be continued so his new counsel could prepare. The trial court denied the continuance, so Hampton proceeded with his previously appointed counsel. He was ultimately convicted of Rape in the Third Degree.

The Court of Appeals reversed his conviction, holding that the trial court’s decision violated Hampton’s constitutional right to his choice of counsel because it considered Hampton’s reasons for wanting a new attorney. The Court of Appeals relied on United States v. Gonzalez-Lopez, a United States Supreme Court opinion that held that when a defendant’s right to choice of counsel is erroneously denied, a defendant need not show prejudice in order to obtain relief.

Here, the WA Supreme Court overruled the WA Court of Appeals and upheld Mr. Hampton’s conviction. It reasoned that a trial court has wide latitude to grant or deny a motion to delay trial related to a defendant’s request to change counsel. In making such a decision, trial courts should consider the factual context for the motion, which can include among other factors-a defendant’s reasons for dissatisfaction with existing counsel.

In this case, reasoned the court, the trial court did not abuse its discretion when it denied Hampton’s request to delay trial to allow him to replace his counsel given that (1) he did not make his request until the day his trial was scheduled to start, (2) his trial had already been continued once, (3) the victim/witness opposed the continuance, and (4) he did not explain his dissatisfaction with appointed counsel.

The WA Supreme Court also stated that trial courts can consider all relevant information, including the 11 factors described in the most recent edition of the LaFave Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

( 5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial; and

( 11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Based on that, and under the circumstances, the WA Supreme Court concluded that the trial court in this case did not error by considering the defendant’s reasons for dissatisfaction with his appointed attorney in addition to the other circumstances, such as the lateness of the request, the previous continuance granted by the court, and the victim/witness’s opposition to further delay.

Consequently, the WA Supremes reversed the Court of Appeals and held that the trial court did not abuse its discretion when it considered – among other factors – the defendant’s reasons for his dissatisfaction with his appointed counsel.

My opinion? Trial judges are very, very suspicious and pessimistic when defendants try withdrawing/replacing their defense attorney at the 11th hour before trial. Judges know that Prosecutors work hard – and they do – to bring witnesses together and prepare for trial. Judges also know want to avoid any witness tampering and/or intimidation on the part of defendants who may have mistakenly believed they could strike a BBD (bigger, better deal) right before trial.

That line of thinking on the part of defendants is not always true, in fact, it’s rarely true. Believe me, once a competent Prosecutor prepares a trial, they’re rarely convinced of going anywhere but forward with their prosecution.

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. Thompson: Disruptive Defendants In Trial

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Firearm, Jury Trial, Sixth Amendment, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Murder defendant to wear shock device | The Spokesman-Review

In State v. Thompson, the WA Court of Appeals Division II held that  a Defendant’s right to be present during trial is not violated if they are taken away after being verbally and/or physically disruptive and refuse to promise that such behavior will stop.

Here, late one evening, Thompson approached a group of high school students, two of whom were sitting in a car. Thompson pulled out a gun and ordered the students to surrender their possessions. Three of them handed over backpacks and other items, while the two girls in the car closed and locked the doors. After looking through the items, Thompson demanded the car. When one of the boys protested and tried to get the gun, Thompson shot him in the abdomen. The other boys wrestled Thompson to the ground and held him until the police arrived.

The State charged Thompson with four counts of Robbery in the First Degree while armed with a firearm and one count Assault First Degree while armed with a firearm, Unlawful Possession of a Firearm in the First Degree and Possession of a Stolen Firearm.

When Thompson’s trial began on January 28, 2014, he wore a leg restraint. Before testimony began, jail personnel asked for increased restraints due to a physical altercation at the jail. After a hearing on the matter, the trial court authorized the placement of a stun device under Thompson’s clothing.

Later that same day, Thompson pushed over the counsel table at which he was seated, yelled several profanities, and struggled with corrections officers before being subdued and removed from the courtroom. When he returned in handcuffs, shackles, and a belly chain, the trial court ruled that he would be taken to another courtroom where he could attend the trial over a video feed.

The trial court informed Thompson that he would have the right to be present in court if he assured the judge that his behavior would improve. Specifically, the judge said the following:

“And, of course, Mr. Thompson has the right to reclaim his ability to be present in court upon a real assurance that his conduct will improve and that he will not be verbally or physically disruptive.”

Before the trial recessed for the day, the trial court reminded Thompson that he could return to the courtroom the following day if he agreed to behave. Thompson was instructed to inform his attorney or corrections staff of his decision.

The next day, on February 4, trial resumed. Thompson had not decided whether he would behave in court. The judge said he would not further inquire into Thompson’s desire to return to the courtroom because Thompson knew the procedure by which he could return the day before and still refused to comply or reply. After the State rested, Thompson declined to testify, and the jury retired to deliberate at the end of the day.

On February 5, the jury found Thompson guilty as charged.

On appeal, Thompson raised the legal issue of whether the trial court denied his right to be present at trial by removing him from the courtroom for the final three days of trial without informing him daily that he could return if he conducted himself properly.

However, the Court of Appeals disagreed. The Court reasoned that a criminal defendant has a constitutional right to be present in the courtroom at all critical stages of the trial. Also, this right derives from the 6th Amendment’s constitutional right to confront adverse witnesses and the Washington rules of criminal procedure.

The Court also reasoned, however, that the right to be present is not absolute. A defendant’s persistent, disruptive conduct can constitute a voluntary waiver of the right to be present in the courtroom. Once lost, this right can be reclaimed “as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.”

The Court of Appeals followed basic guidelines under State v. Chapple to assist trial courts in exercising their discretion in cases like this. First, the defendant must be warned that his conduct may lead to removal. Second, the defendant’s conduct must be severe enough to justify removal. Third, the trial court should employ the least severe alternative that will prevent the defendant from disrupting the trial. Fourth, the defendant must be allowed to reclaim his right to be present upon assurances that his or her conduct will improve. These guidelines, said the court, are intended to ensure that trial courts exercise their discretion in a manner that affords defendants a fair trial while maintaining the safety and decorum of the proceedings.

Here, the trial court clearly informed Thompson of both his right to return and the manner in which he could exercise that right. With that, the Court affirmed Thompson’s convictions.

My opinion? In my experience, trial judges are extremely sensitive to how defendants behave in court. Decorum MUST be maintained by witnesses, attorneys and defendants at all times. Any disruptions of proceedings are viewed disdainfully, as we see in this 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. Besola: Overbroad Search Warrant

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Federal Warrants and Search and Seizure Lawyer | Eisner Gorin LLP

In State v. Besola, the Washington Supreme Court held that a search warrant was overbroad. Because the warrant failed to meet the Constitution’s “particularity” requirement, the court reversed the Defendant’s convictions for Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Mark Besola and Jeffrey Swenson lived together in Besola’s house. After a friend of Swenson’s, Kellie Westfall, was arrested, she told police that she had seen drugs and child pornography at Besola’ s house. Based on the information provided by Westfall, a judge issued a search warrant for illegal drugs but declined to issue a search warrant related to child pornography at that time.

At the scene, police saw CDs and DVDs with handwritten titles that implied that they contained child pornography. On the basis of this observation, police requested and obtained an addendum to the search warrant.

The language of that amended warrant (and whether it was sufficiently particular) is at the heart of the legal issue in this case.

The warrant indicated that the crime under investigation was “Possession of Child Pornography R.C.W. 9.68A.070.” Clerk’s Papers (CP) at 312 (boldface omitted). The warrant indicated that “the following evidence is material to the investigation or prosecution of the above described felony”:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings; 2. Any and all printed pornographic materials; 3. Any photographs, but particularly of minors; 4. Any and all computer hard drives or laptop computers and any memory storage devices; 5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.

Police seized a number of computers, memory storage devices, CDs, and DVDs. They ultimately found child pornography on one computer and on 41 disks with handwritten titles. They also found a DVD duplicating device (also known as a DVD burner) attached to the computer. Some disks contained duplicated copies of the child pornography.

A handwriting expert testified that Besola’s handwriting was on at least one of the disks containing child pornography and that indications of both Besola’s and Swenson’s handwriting were on multiple other disks. Both defendants were charged with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Although the Court of Appeals affirmed the convictions, the WA Supreme Court granted review on the issue of whether the search warrant meet the Fourth Amendment’s particularity requirement.

The Court reasoned that the Fourth Amendment to the United States Constitution requires warrants to “particularly describe the place to be searched, and the persons or things to be seized.” That requirement is heightened if the warrant authorizes a search for materials protected by the First Amendment to the United States Constitution.

For guidance, the court reviewed a 1992 case, State v. Perrone, that involved similar circumstances. In Perrone, the Court decided that the warrant in that case failed to meet the particularity requirement of the Fourth Amendment, in part because it provided for the seizure of items that were legal to possess, such as adult pornography.

Here, the Court decided the decision in Perrone is binding in this case. Under Perrone, the court concluded that many provisions of this search warrant were similarly overbroad. As in Perrone, the descriptions of the items to be seized expressly included materials that were legal to possess, such as adult pornography and photographs that did not depict children engaged in sexually explicit conduct.

Similar to Perrone, these descriptions could easily have been made more particular by adding the precise statutory language, “depictions of a minor engaged in sexually explicit conduct.” As in Perrone, the police in this case failed to add that language to their search warrant. Therefore, under Perrone, these provisions were insufficiently particular and thus invalid.

The WA Supreme Court denied the State’s arguments that the warrant in this case is saved by a citation to the child pornography statute at the top of the warrant. The Court reasoned the State was incorrect because the statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. More importantly, said the Court, the State’s position conflicts with Perrone and would hinder the goals of the warrant particularity requirement.

Because the warrant fails to meet the Constitution’s particularity requirement, the WA Supreme Court reversed these convictions.

My opinion? Good decision. Yes, possessing child porn is illegal. However, so are illegal searches. Warrants must particularly describe the items believed to found. Otherwise, they become a meaningless ticket allowing police to engage a fishing expedition of our bodies, property, vehicles and homes. 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.

State v. Mayer: Officer Gives Confusing Miranda Warnings

Bellingham Defense Attorney, Constitutional Rights, Due Process, Exclusionary Rule, felony, law enforcement, Miranda, Robbery, Self-Incrimination, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Mayer, the WA Supreme Court decided that a deputy sheriff inadequately advised the defendant of his Miranda rights when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court.

Here, defendant Nicholas Mayer was suspected of robbing KC Teriyaki,  a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day’s sales. The apparent motive for the robbery was because Mr. Mayer’s sister, Emily Mayer, was a disgruntled ex-employee.

Police stopped Mr. Mayer’s vehicle, detained Mayer and the vehicle’s other occupants, and transported them to the police station for questioning regarding the robbery. Deputy Tom Dennison of the Clark County Sheriff’s Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording.Once recording began, Dennison again advised Mayer of his Miranda rights:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: “Do you understand each of these rights as I’ve explained them to you?”

MR. MAYER: Yes. Um, If I wanted an attorney and I can’t afford one, what — what would — ?

DEPUTY DENNISON: If you wanted an attorney– you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn’t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be– how it– how I–

DEPUTY DENNISON: You’re not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you’d go before a judge and then he would ask you whatever at that point, if you were being charged, you would afforded an attorney if you couldn’t hi — you know, if you weren’t able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees “give me the money”; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

Based on the confession, Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including Robbery in the First Degree. Mayer moved to suppress the incriminating statements he made during his interview with Officer Dennison, but the superior court denied the motion after a CrR 3.5 hearing.

The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. The WA Supreme Court granted review on his Miranda challenge.

For those who don’t know, the explanation of Miranda rights must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Here, the WA Supreme Court ruled that Mayer’s confession should have been suppressed. They reasoned that Officer Dennison’s linkage of Mayer’s right to appointed counsel to conditional future events (arrest, jail, charge, and arraignment) contradicted his earlier statements that Mayer could have access to appointed counsel “before questioning” and that he could exercise his rights “at any time.” Critically, Officer Dennison did not tell Mayer that despite the fact that no appointed attorney was immediately available, Mayer’s other Miranda rights remained in full effect and he could protect his right to the presence of counsel by remaining silent until he could speak to an attorney.

Under these circumstances, ruled the court, Officer Dennison’s explanation of Mayer’s rights was deficient, and the State has failed to meet its burden of establishing that Mayer knowingly and intelligently waived his rights. Mayer’s subsequent confession therefore should have been suppressed. However, the Court further reasoned that because any error in admitting the confession was harmless, the court affirmed Mayer’s conviction.

My opinion? Good decision. This Miranda advisement from the police officer was contradictory and confusing. The deputy should have clarified that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. Again, good decision. Unfortunately for the Defendant, however, the WA Supreme Court also decided the error was harmless. In other words, he was still convicted of the charges and must serve his sentence.

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. Linder: Unwitnessed Search is Unlawful

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Drug Offenses, Due Process, Evidence, Exclusionary Rule, felony, Methamphetamine, Miranda, Search and Seizure, Search Warrant, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for police search

In State v. Linder, the WA Court of Appeals Division III decided that evidence obtained pursuant to a search warrant was properly suppressed because the officer’s inventory of the search was not conducted with at least one witness.

Here, Defendant Aaron Linder was arrested by Kalama Police Chief Grant Gibson in March 2013 for driving with a suspended license. During the search incident to arrest, Chief Gibson found a small tin box inside the pocket of Mr. Linder’s hoodie. After being informed of his Miranda rights, Mr. Linder admitted being a daily user of hard drugs and that the tin box contained drug paraphernalia. But he refused to give his consent for Chief Gibson to open the box initially, and refused a second time at the police station.

The police obtained a search warrant. Sergeant Parker, without anyone else present, executed the warrant by opening the metal box and photographing and inventorying its contents. It was typical for the department’s night shift officer to work alone. The Kalama police department has a total of only five sworn officers.

Sergeant Parker inventoried the tin box as containing two pieces of aluminum foil, an empty plastic box, two plastic tubes, a hair pin, a safety pin, and a piece of plastic from a cigarette package. The cigarette wrapper contained a crystalline substance that appeared to be methamphetamine. After he finished the inventory and completed the return of service form, Sergeant Parker placed the items, a copy of his report, and a note for Chief Gibson in a temporary evidence locker.

The next morning, Chief Gibson, also acting alone, verified that the contents in the box matched Sergeant Parker’s inventory and field tested a small quantity of the cellophane wrapper and its contents, which tested positive for methamphetamine. He packaged the remainder of the crystalline substance for submission to the crime laboratory. Mr. Linder was thereafter charged with one count of Violation of the Uniform Controlled Substances Act, Chapter 69.50 RCW, for possession of methamphetamine.

Before trial, Mr. Linder moved to suppress the evidence found in the tin box on the grounds that it was searched in violation of CrR 2.3( d). The rule provides that a return of the search warrant shall be made promptly, shall be accompanied by a written inventory of any property taken, and-relevant here-that “the inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer.” In the suppression hearing that followed, both Sergeant Parker and Chief Gibson testified that they were unaware of the rule’s requirement that the inventory be made in the presence of another person.

The trial court granted Mr. Linder’s motion to suppress. The State appealed.

In reaching its decision, the WA Court of Appeals looked to the Exclusionary Rule In considering whether the contraband should be suppressed.

For those who don’t know, the Exclusionary Rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. The exclusionary rule may also, in some circumstances at least, be considered to follow directly from the constitutional language, such as the Fifth Amendment‘s command that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law”.

The Exclusionary Rule is grounded in the Fourth Amendment and it is intended to protect citizens from illegal searches and seizures. The exclusionary rule is also designed to provide a legal remedy and disincentive, which is short of criminal prosecution in response to prosecutors and police who illegally gather evidence in violation of the Fifth Amendment in the Bill of Rights compelled to self-incrimination. The exclusionary rule also applies to violations of the Sixth Amendment, which guarantees the right to counsel.

The WA Court of Appeals reasoned that Washington’s version of the Exclusionary Rule had three objectives:

First, and most important, to protect privacy interests of individuals against unreasonable governmental intrusions; second, to deter the police from acting unlawfully in obtaining evidence; and third, to preserve the dignity of the judiciary by refusing to consider evidence which has been obtained through illegal means.

Here, reasoned the Court, excluding the evidence served the third objective of preserving the dignity of the judiciary by refusing to consider evidence obtained through illegal means.  Here, a police officer’s unwitnessed late night execution of a search warrant in this case clearly violated CrR 2.3(d), called the reliability of his inventory into question, and could not be remedied other than by suppression.

My opinion? Great decision. Kudos to Division III for following the law.

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. Rooney: Unlawful Search of Bedroom, Yet Valid Frisk of Pants.

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What to Know About Unlawful Search and Seizure

In State v. Rooney, the WA Court of Appeals Division II gave interesting results on a multi-layered search & seizure case. First, an officer who lawfully entered a parolee’s room in order to arrest him, properly conducted a Terry frisk of a roommate’s pair of pants before giving them to the roommate. The frisk was justified by the presence of several swords, an axe and multiple knives in the room. However, the officer’s search of a room over the objection of the roommate, who was not on community custody, violated the roommate’s Constitutional rights.

Alexandria White, who was serving a term of community custody, began living with the defendant, Norman Rooney, in his home in December 2013 shortly after her release from prison. Her parole officer Chris Napolitano supervised White’s community custody. Napolitano knew that Rooney and White had lived together like a married couple and they had always lived in the same room together.

After White moved in with Rooney again that December, Napolitano discovered White had changed her address without notifying him, which violated her community custody conditions.

Napolitano obtained an arrest warrant for White and, with a team of law enforcement officers, went to Rooney’s house to arrest her on December 30, 2013. As Napolitano walked into the bedroom, White was standing in the bedroom with Rooney, who appeared to be asleep in bed. Napolitano observed swords and axes hanging on the bedroom wall and a couple of knives laying on the shelves. He observed additional weapons on Rooney’s nightstand. Napolitano advised White that by failing to report her new address and not being available for contact she had violated her community custody. White acknowledged that Napolitano would arrest her for the violation.

After Napolitano arrested White and placed her in the living room, Napolitano told White that he was going to search the bedroom. White responded that she lived in the living room, not the bedroom, but Napolitano did not see any sleeping arrangements or anything that appeared to be White’s belongings in the living room. Napolitano ordered Rooney to leave the bedroom so the officers could search it. Rooney objected to the search because he was not currently on community custody, but he began to physically comply.

Rooney, who was dressed in what appeared to be boxer shorts, asked to put on pants. Napolitano replied that he would have to search the pants “for safety reasons” before Rooney could put them on and leave the room. Given the other weapons in the room, Napolitano was concerned that Rooney might have a weapon in the pants. Rooney grabbed a pair of pants, and when Napolitano took hold of the pants, he immediately felt a firearm.

After Rooney was arrested and placed in the living room, Napolitano and Harvey searched the bedroom and found methamphetamine, heroin, and clonazepam. The State charged Rooney with three counts of Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam) and one count of First Degree Unlawful Possession of a Firearm. Rooney moved to suppress evidence of the controlled substances and the firearm. The trial court denied Rooney’s motion and found him guilty as charged at a bench trial. On appeal, Rooney argues that the trial court erred when it denied his motion to suppress.

The Court of Appeals reasoned that warrantless searches and seizures are generally unreasonable and violate the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution. However, consent is one well-recognized exception to this rule. The State bears the burden of proving by clear and convincing evidence that a warrantless search falls into one of the exceptions to the warrant requirement.

The Court further reasoned that, in searches involving a cohabitant who consents to a warrantless search, Washington has adopted the Common Authority Rule; which says that a cohabitant may grant consent to search a residential area that each cohabitant has equal authority to control. This rule is based on the Washington Constitution’s guarantee of each individual’s expectation of privacy and the theory that a person assumes risk that his or her cohabitant may allow “outsiders” into a shared space.

Finally, the Court reasoned that the consent of only one person with common authority over the place to be searched when multiple cohabitants are present is NOT sufficient to conduct a lawful search of shared space.  “We have never held that a cohabitant with common authority can give consent that is binding upon another cohabitant with equal or greater control over the premises when the non-consenting cohabitant is actually present on the premises,” said the Court. “When a cohabitant who has equal or greater authority to control the premises is present, his consent must be obtained and the consent of another of equal or lesser authority is ineffective against the non-consenting cohabitant.”

With that, the court held that under application of the common authority rule, because Rooney was present and objected, the officers’ search of Rooney’s room was unlawful. The fact that White was serving a community custody term does not undermine Rooney’s right to object to a warrantless search of his bedroom. Therefore, the officers’ warrantless search of Rooney’s bedroom was unlawful as to Rooney, and the trial court erred in denying Rooney’s motion to suppress the methamphetamine, heroin, and clonazepam evidence found during the unlawful search.

Regarding the frisk of Rooney’s pants, the Court of Appeals reached an entirely different decision. They decided the trial court did not error in denying Rooney’s motion to suppress evidence of the firearm found in Rooney’s pants. The Court reasoned that an officer may conduct a non-consensual protective Terry frisk for weapons if the officer can articulate specific facts that create an objectively reasonable belief that the person is armed and dangerous. The officer need not be certain that the person is armed before he or she conducts a protective frisk.

Here, Napolitano and other law enforcement officers saw “several swords, an axe, and multiple knives” in Rooney’s bedroom. Because he was aware of the number of weapons, Napolitano was concerned for his safety. Also, Rooney’s behavior following Napolitano’s warning that the pants would be searched, together with Napolitano’s observation of the weapons in plain view in his bedroom, gave Napolitano articulable suspicion that the pants Rooney wanted to wear might have contained a weapon.

The court concluded that the officers’ warrantless search of Rooney’s bedroom over his objection was unlawful, and therefore, the evidence of the controlled substances must be suppressed. But Napolitano’s frisk of Rooney’s pants was lawful and based on reasonable suspicion. Therefore, the court reversed Rooney’s three convictions for Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam), and affirmed his conviction for First Degree Unlawful Possession of a Firearm.

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.

Study: Youth Tolerance Of Marijuana May Increase Chances of DUI

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Study offers support for the notion of e-cigarettes as a gateway drug

A new study from the journal Pediatrics suggests ways to reduce the risk that children will drive under the influence of alcohol or drugs as teenagers.

The study found that 12-year-old children who believed marijuana could help them relax or was otherwise beneficial were more likely to drive under the influence when they were 16. The study also showed these minors were also significantly more likely to ride with someone else who was buzzed, drunk or high behind the wheel.

“Youth view marijuana use as less dangerous than drinking,” the study authors wrote. “We must begin to address how changing views of marijuana might increase risk for not only marijuana use, but other behaviors.”

Driving under the influence is common among American teenagers. The Centers for Disease Control and Prevention estimates that 10% of high school students do so in any given month, and more than 20% have been passengers of someone driving under the influence.

So researchers from Rand Corp. in Santa Monica and Arlington, Va., went looking for risk factors in middle school that could predict these dangerous behaviors in high school. They turned to data from a substance use prevention program called CHOICE that was tested in 16 middle schools in greater Los Angeles.

The Rand researchers focused on 1,124 students who completed detailed surveys in 2009 (when their average age was 12.2 years old), 2011 (when their average age was 14.3) and 2013 (when their average age was 16.3 and 88% were eligible to drive in California). The majority of these students (57%) were girls, and half were Latino.

Using statistical models to control for the students’ age, gender, race and ethnicity, school and whether their mothers had graduated from high school, the researchers identified several factors that seemed to predict unsafe driving at age 16.

According to the study, those who held more tolerant ideas about marijuana when they were 12 (in sixth or seventh grade) were 63% more likely than their peers to admit either driving under the influence themselves or to ride with someone who was under the influence

Additionally, 12-year-olds who felt most confident that they could resist marijuana use wound up being 89% more likely to mix alcohol and drugs with cars, motorcycles or other vehicles. This finding surprised the researchers, they wrote.

By the time the students were 14, some of the risk factors had changed. Those who said they had used alcohol in the last month were more than twice as likely as their peers to drive under the influence or ride with an intoxicated driver two years later.

Also, those whose friends used marijuana were 2.4 times more likely to be involved in unsafe driving later, and those whose family members used marijuana were 54% more likely to do the same.

And positive beliefs about marijuana still mattered — 14-year-olds who had them were still 67% more likely to mix alcohol, drugs and motor vehicles at age 16.

The researchers noted that marijuana has taken on a benign image among middle schoolers “as medical and recreational marijuana legalization increases in our country, adolescents are becoming more accepting of marijuana use,” they wrote. “This highlights the need to address these types of beliefs as early as sixth grade.”

My opinion? If these studies are accurate, they merely reveal our need to EDUCATE our youth about drugs, alcohol and vehicles. In short, DRUGS/ALCOHOL AND VEHICLES DON’T MIX. It doesn’t matter what type of drug you’re taking; whether it be prescription, medical marijuana or street drugs. Don’t do drugs and drive. And it doesn’t matter what type of alcohol you’re drinking. Don’t drink and drive.  If your doctor informs you that taking your prescription medication may affect your ability to operate a motor vehicle, then please think twice about operating a motor vehicle.

I’ve assisted many clients facing DUI charges of varying degrees. However, studies like this show that society is becoming less tolerant and sympathetic toward individuals charged with DUI. It takes a very competent and experienced defense attorney to reveal the science, forensics and idiosyncrasies of DUI litigation in today’s anti-drug climate.

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.