Category Archives: Constitutional Rights

Hotel Room Hosts Can’t Consent To Police Searching Other Guest’s Bags

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Single-use plastic bags will be banned in Colorado by 2024 with bag fees set to start in 2023 under new law

In State v. Giberson, No. 56081-0-II (April 4, 2023), the WA Court of Appeals held that the host of a hotel room lacks authority allowing police to search a guest’s grocery bags located inside the room.  A person has a reasonable privacy interest in grocery bags, which are are “traditional repositories of personal belongings.”

FACTUAL BACKGROUND

In May of 2020, police received a tip from a confidential informant that Mr. Giberson planned a drug deal at a nearby motel. Police journeyed to the motel. They conducted surveillance of room #106. Police contacted a person named Mr. Goedker after Goedker departed room #106.

Goedker stated that he was the sole occupant of motel room #106. He said he had been residing there for approximately 10 days. He stated that the defendant Mr. Giberson had stopped by earlier that day. Giberson and a person named Ms. Hopkins remained in the room. Goedker said that there were bags in the motel room belonging to Giberson.

Police opened the door to Room #106. They saw Giberson and an associate sitting at a table. Both Giberson and the associate were detained and removed from the room.

The detectives then searched two plastic grocery bags on the floor next to the door. Inside one of the grocery bags they found a digital scale and two baggies containing heroin.  After searching the bags, police asked Goedker if they belonged to him. Goedker denied ownership and stated that the bags belonged to Giberson.

The State charged Giberson with possession of heroin with the intent to deliver. Before trial, Giberson moved to suppress the evidence found in the warrantless search of the plastic grocery bags. The trial court denied the suppression motion. It reasoned that Gibson lacked standing to challenge the search of his bags. Ultimately, the court also found Giberson guilty as charged. Giberson appealed his conviction. He argued that the search of his grocery bags was unlawful because Goedker could not give consent to search his possessions.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals addressed the issue of whether Giberson had standing to challenge the search of his bags.

“A defendant has automatic standing under article I, section 7 of the Washington State Constitution to challenge a search when (1) possession is an essential element of the charged offense and (2) the defendant was in possession of the item searched at the time of the challenged search,” said the Court. Here, Giberson has automatic standing to challenge the search. Consequently, the trial court erred in concluding that Giberson did not have standing.

Next, the Court of Appeals addressed the issue of whether the search of Gibson’s bags was lawful.

The Court reasoned that warrantless searches are unlawful under the Washington Constitution and the Fourth Amendment to the United States Constitution. Valid consent is an exception allowing for a warrantless search. However, consent to search an area does not necessarily provide authorization to search belongings of a third person inside the area. Here, Goedker did not own, possess, or control Giberson’s grocery bags. Therefore, Goedker did not have authority to consent to the search of Giberson’s bags.

The Court of Appeals further reasoned that a search is unconstitutional if the defendant had a reasonable expectation of privacy in the item searched.  Here, Giberson clearly sought to preserve as private the drugs and digital scale by placing them in his grocery bag. The Court addressed whether Giberson had a privacy interest in storing his belongngs in plastic bags:

“Grocery bags can be characterized as ‘traditional repositories of personal belongings.” People certainly put personal grocery items and other personal items obtained in a grocery store like prescription medications in such bags. And common experience tells us that people also use grocery bags to carry other personal items. For example, this may be true for people such as those experiencing homelessness who may not have space for their personal items. Giberson reasonably could expect that others would not search his grocery bags without his consent. Therefore, we conclude that Giberson had a reasonable expectation of privacy in his grocery bags.” ~WA Court of Appeals.

With that, the Court of Appeals concluded that Goedker’s authority to give consent to search his hotel room did not extend to the search of Giberson’s grocery bags. Furthermore, Giberson had a reasonable expectation of privacy in those bags. Therefore, the trial court erred in failing to suppress the heroin and digital scale found in the search of the grocery bags. Giberson’s conviction was reversed.

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

DOJ Wants Review of DV Firearms Ruling

Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Appeals court strikes down domestic violence gun law - Washington Times

The Justice Department has petitioned the United States Supreme Court (USSC) to overturn United States vs. Rahimi. This recent and controversial court decision from the 5th Circuit allows individuals charged with Domestic Violence (DV) crimes to possess firearms. The Justice Department (DOJ) argues that the risk of homicide rises when there’s a gun in a house that has a domestic abuser. As a result, millions of Americans will be victims of intimate-partner abuse.

“And if allowed to stand, it would thwart Congress’s considered judgment that persons who have been found to be a threat to their intimate partners or children should not be permitted to acquire or possess firearms.” ~U.S. Department of Justice

The government filed the petition on an expedited schedule to allow the Supreme Court to determine whether it will take up the case.

THE 5TH CIRCUIT FEDERAL COURT OF APPEALS’ RULING IN U.S. V. RAHIMI.

In Rahimi, Fifth Circuit ruled that the federal prohibition on gun possession for people subject to DV restraining orders (DVROs) is unconstitutional under the Second Amendment. Rahimi pointed to the Supreme Court’s decision in New York State Rifle & Pistol Association Inc. v. Bruen. That case provided a legal framework for gun laws supporting the tradition and history of the Constitution’s Second Amendment.

The 5th Circuit found the government failed to show that the statute’s “restriction of the Second Amendment right fits within our Nation’s historical tradition of firearm regulation.”

THE DOJ’S RESPONSE TO U.S. V. RAHIMI.

The appellate court ruling caught the attention of the Justice Department early on. The government wrote in its petition that the 5th Circuit “overlooked the strong historical evidence supporting the general principle that the government may disarm dangerous individuals. The court instead analyzed each historical statute in isolation.”

In a hearing before the Senate Judiciary Committee last week, witnesses said the Supreme Court decision in Bruen has wreaked havoc on the country’s gun control laws. At the committee hearing, Ruth M. Glenn with the National Coalition Against Domestic Violence called attention to the 5th Circuit’s U.S. v. Rahimi.

“The lack of historical laws restricting firearms access by domestic abusers is not evidence that such laws are unconstitutional . . . Rather it is a reflection of the legally subordinate status and general disregard for the rights and needs of women in early America.” ~Ruth M. Glenn, National Coalition Against Domestic Violence

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

At Trial, Police Can’t Comment on a Defendant’s Post-Arrest Silence

Assault, Bellingham Defense Attorney, Constitutional Rights, felony, Fifth Amendment, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Van Dyke trial: Breaking down all 44 witnesses – Chicago Tribune

In State v. Palmer, the WA Court of Appeals held that the defendant’s Fifth Amendment Right Against Self-Incrimination was violated when the detective commented about the defendant’s post-arrest silence.

BACKGROUND FACTS

Palmer and his girlfriend, DD, moved in together in 2013. They lived together with DD’s two biological children from a prior marriage, her son AD, and her daughter PD. Palmer and DD also had a baby together, LP. Sometime in 2014, the family moved to Washington. Palmer served as caregiver to the children and in that role disciplined both PD and AD.

During a family car trip in 2016, Palmer grabbed AD by the neck, leaving a scratch. At
some point after the car trip incident, Palmer told DD that PD had touched his penis. Thereafter, PD disclosed to DD that Palmer had touched her vagina. Approximately four months after PD’s disclosure, DD contacted law enforcement. Law enforcement authorities interviewed the children on two separate occasions. Detective Ramirez participated in PD’s interview during which he learned of the accusations against Palmer.

Eventually, Detective Ramirez took Palmer into custody, read him Miranda rights, and questioned him. Ramirez ended the questioning after Palmer repeatedly refused to admit to any wrongdoing. Ramirez returned the next morning for additional questioning, but Palmer refused to talk. The State charged Palmer with one count of child molestation in the first degree and two counts of assault of a child in the second degree.

At trial, the Prosecutor questioned DSetective Ramirez and asked if he had spoken to Palmer after his initial interview. In the presence of the jury, Ramirez testified that he “went back the next morning, thinking that, you know, a day sitting in the county jail, you know, there’s some time to think, and maybe Mr. Palmer would want to do the right thing here.” Ramirez further testified that he told Palmer, “You’ve had some time to think. Do you want to talk?” and that Palmer responded that he did not want to talk.

The jury convicted Palmer of all charges.

On appeal, Palmer argued his right against self-incrimination was violated when Detective Ramirez discussed Palmer’s decision to remain silent.

COURT’S ANALYSIS & CONCLUSIONS

The Court began with an engaging discussion of the Fifth Amendment. In short, a defendant’s right against self-incrimination prohibits the State from eliciting comments from witnesses about the defendant’s pre- or post-arrest silence. The State may also not suggest the defendant is guilty because they chose to remain silent, because the assurance of Miranda is that remaining silent will not be penalized.

Here, the State unequivocally elicited a comment from Ramirez about Palmer’s decision
to remain silent.

“Ramirez’s testimony was a comment on Palmer’s right to remain silent. More pointedly, contrary to State v. Easter, the State suggested that Palmer was guilty due to his silence. Indeed, Ramirez testified that Palmer remained silent after being given a chance to “do the right thing” by admitting criminal conduct. This statement presupposed Palmer’s guilt and created an impossible choice: Palmer could either do right by confessing to molesting a child or do wrong by remaining silent.”

“Implicit in the ‘silence equals wrongfulness’ notion is that silence withholds the ‘truth’—that ‘truth’ being one’s criminal conduct, even if there was no criminal conduct. In this context, a defendant cannot maintain their presumption of innocence by remaining silent. A detective’s belief on this front may assist with their investigative duty, but established authority prohibits using a defendant’s right to remain silent to suggest guilt to the jury.” ~WA Court of Appeals.

The Court of Appeals concluded by saying that alone, this violation may warrant reversal and a new trial. “However, because we reverse on other grounds, we remind the State that it is forbidden from eliciting comments about Palmer’s silence during his new trial.” With that, the Court of Appeals reverse the convictions and remanded to the trial court for a new 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.

Right to Counsel At Critical Stages In Criminal Proceedings

Bail, Bellingham Defense Attorney, Constitutional Rights, Detention, Jail, Mount Vernon Criminal Defense Attorney, Right to Present A Defense, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense

Will Wearing an Orange Jumpsuit in Court Affect the Outcome? - Szar Bail Bonds

In State v. Charleton, the WA Court of Appeals held that even though a defendant lacks counsel at arraignment, this error is harmless because setting bail has no effect on the remainder of the case.

BACKGROUND FACTS

Mr. Charleton was arrested and held for 72 hours on allegations of a sex offense. During his initial appearance he did not have a defense attorney. After the State filed charges, the defendant appeared again without counsel. The court set bail and continued arraignment a few days. At arraignment, the defendant appeared with counsel and was granted release. The judge later found the defendant guilty of child rape and child molestation.

The defendant challenged his convictions on arguments that he lacked counsel at a critical stage of the proceedings. Therefore, this failure to appoint counsel violated the Sixth Amendment to the United States Constitution and required reversal of his convictions.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) gave a 5-part analysis of the legal issues below discussed below:

The Constitutional Right to Counsel Attached at Charlton’s First Two Court Appearances.

The COA explained that superior courts are required to process defendants  in court as soon as possible, “but in any event before the close of business on the next court day.” A court must provide a lawyer at the “preliminary appearance” pursuant to court rule. And the right to an attorney accrues as soon as feasible after the individual is taken into custody, appears before a judge, or is formally charged, whichever occurs earliest. Consequently, the COA reasoned that Mr. Charleton’s right to counsel attached after he was charged and appeared for arraignment.

Charlton’s First Court Appearance Was Not a Critical Stage of the Criminal Proceedings. However, Charlton’s Second Appearance Was a Critical Stage Because the Trial Court Addressed the Setting of Bail.

Here, the COA explained that a “critical stage” is one which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is otherwise substantially affected. Critical stages involve pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel.

Even Though Charleton’s Second Appearance Involving Bail Was a Critical Stage, His Appearance Without an Attorney Was Harmless Error.

The COA reasoned that an error is harmless if the State establishes beyond a reasonable doubt that the verdict would have been the same result without the error. Here, the trial court’s imposition of bail on an unrepresented Mr. Charleston had no effect on his case resolution.

“Because of the court’s bail decision and the continuance of the arraignment, Charlton was in jail for an additional 10 days. His brief continued detention certainly did not pervade or contaminate the entire proceeding. Therefore, there was no structural error and we must apply the harmless error analysis.” ~WA Court of Appeals.

Accordingly, the COA affirmed Charlton’s convictions.

My opinion? Bad decision. Lack of defense counsel at bail hearings can potentially cripple a defendant’s ability to fight the charges. At arraignment, defense attorneys often argue bail and release conditions. A competent defense attorney can persuade the judge to lower the bail recommended by the prosecution. Even better, a defense attorney can persaude the judge to release the defendant on personal recognizance. Defendants who are released from jail are better positioned to assist in their defense. They can help locate  witnesses, enter treatment programs and contemplate substantive defenses.

Please review my Making Bail legal guide and 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.

Display of a Firearm & Probable Cause

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Federal Crimes & Prosecutions, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

What to know about open carry gun laws in Arizona - Phoenix Business Journal

In US v. Willy  (July 26, 2022), the Ninth Circuit Court of Appeals held that a defendant’s charges for Unlawful Display of a Weapon were not supported by Probable Cause.

BACKGROUND FACTS

Reporting Party #1

On May 12. 2019, the Yakima County’s Sheriff’s Office received a call from a witness (“Reporting Party 1”). The witness stated that a man had pulled up outside of his home in a vehicle and displayed a firearm. Dispatch relayed this information to Deputy Thaxton, who interviewed Reporting Party 1 at his residence. Reporting Party 1 told Deputy Thaxton that a white male in a green truck pulled up on the street in front of his house. The man began talking about being abducted and kept somewhere in the area. The man said he was trying to find the place where he was kept. During the conversation, the man pulled out a semiautomatic pistol, racked the slide, and then put it down.

Reporting Party 1 expressed concern about the man’s mental state. He provided Deputy Thaxton with the truck’s license plate number. The vehicle came back as registered to Mr.  Willy. Thaxton showed Reporting Party 1 Willy’s Department of Licensing photo, and he identified Willy as the man with whom he had spoken. Reporting Party 1 said that Willy made no threats to him, nor had Willy pointed the pistol at him at any time.

Reporting Party #2

About ten minutes after leaving Reporting Party 1’s residence, Deputy Thaxton responded to another report from dispatch. The second call had come from Reporting Party 2, who lived about three miles from the previous caller. Deputy Thaxton spoke to the second witness over the phone because Reporting Party 2 had already left her residence. Reporting Party 2 stated that a man with a name like “Willis” pulled up to her gate in a green truck when she was leaving her house. “Willis” told her that he had been kidnapped and held in a camouflaged trailer or van in the area and that he was trying to find it. While they were talking, the man told her he was armed and then displayed a pistol and put it away. Reporting Party 2 told the man she did not know the place he was looking for, and he drove away. Reporting Party 2 said that she was not was not directly threatened, nor was Willy argumentative or hostile.

Deputy Thaxton located the green truck pulling into a gas station. Once he confirmed the license plate matched the one given to him by Reporting Party 1, Deputy Thaxton turned on his emergency lights and conducted a “high-risk stop.” With his firearm drawn, Deputy Thaxton ordered Willy out of the vehicle. Willy complied with all of Deputy Thaxton’s orders. While making Willy turn around, Deputy Thaxton saw a pistol holstered on his hip. Deputy Thaxton removed the gun, put Willy in handcuffs, and escorted him to the back seat of the police vehicle.

After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. He was also charged with Unlawful Display of a Weapon under Washington statute.

Willy moved to suppress the evidence. The lower federal district court granted the motion to suppress. It found that although Deputy Thaxton had reasonable suspicion to conduct an investigatory stop, he lacked probable cause to make the arrest. The evidence was “tainted by the illegality of the arrest.” The Government filed a timely notice of appeal to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

First, the Ninth Circuit analyzed the scope of Washington’s Unlawful Display of a Weapon statute. It began with a discussion of how the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

“Washington is an open carry state. That means that it is presumptively legal to carry a firearm openly.” ~Ninth Circuit Court of Appeals

“The bare fact that Willy displayed a weapon would not be sufficient to stop Willy, because there is no evidence that he was carrying a concealed weapon,” said the Ninth Circuit. Moreover, the reporting parties’ statements that Willy was carrying a gun “created at most a very weak inference that he was unlawfully carrying the gun concealed without a license, and certainly not enough to alone support a Terry stop.”

Additionally, the Ninth Circuit emphasized that Thaxton acquired no additional reasons for arresting Willy until after he stopped him. When Thaxton ordered Willy to leave his truck and turn around slowly, Willy was openly carrying his pistol, in a holster on his hip. The Ninth Circuit pointed out that Washington courts have refused to enforce the statute when the threats are not sufficiently direct or imminent.

Deputy Thaxton’s suspicion that Willy had violated § 9.41.270 arose not from his own observations but from the accounts of two reporting parties.

“The strongest fact for the government is that Willy racked the slide of his gun in the presence of Reporting Party 1. In context, however, that fact does not demonstrate that Willy was acting in manner that warrants alarm.” ~Ninth Circuit Court of Appeals.”

With that, the Ninth Circuit next addressed whether the C02 cartridge found in Willy’s car – and his statements to police – should be suppressed as evidence supporting the federal charges. The Ninth Circuit began by saying that under the “fruits of the poisonous tree” doctrine, evidence seized subsequent to a violation of the Fourth Amendment is tainted by the illegality and subject to exclusion, unless it has been sufficiently “purged of the primary taint.” Wong Sun v. United States. Ultimately, the Ninth Circuit suppressed that evidence as “fruits of the poisonous tree.”

The Ninth Circuit concluded by affirming the lower federal court’s order granting the defendant’s motion to suppress.

My opinion? Good decision. The Ninth Circuit gave an accurate assessment of Washington Law surrounding this issue and made the right decision. Washington is indeed an “Open Carry” state. This fact alone challenges many people’s allegations that someone is unlawfully displaying a weapon. Also , the probabale cause alleged in this case was fart too attenuated to be reliable.

Please contact my office if you have Firearms Offense involving Search and Seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.

Criminal Conviction Reversed on Prosecutor’s Race-Based Misconduct & Voir Dire.

Assault, Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Race & Law, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Survey: Trump's immigration rhetoric is negatively impacting Latinos' health

In State v. Zamora, the WA Supreme Court held that a Prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

BACKGROUND FACTS

This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, Joseph Zamora was walking to his niece’s house. A neighbor called the police to report a possible vehicle prowler. When Zamora reached the driveway of his niece’s home, he was contacted by responding officer Kevin Hake. Hake quickly became nervous because of Zamora’s demeanor. Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him.

A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him. He had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

Zamora was charged with two counts of Assault Third Degree on the officers who “restrained” him. Officer Hake’s injuries included some small scratches around his hand and wrist and some bruising. Officer Welsh sustained an injury to his hand from punching Zamora in the back of the head multiple times. Zamora’s case proceeded to trial.

The Grant County Prosecutor began voir dire. He introduced the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics. At one point, he referred to “100,000 people illegally” crossing the border each month. He asked jurors whether “we have or we don’t have enough border security.” He also asked jurors if they had “heard about the recent drug bust down at Nogales, Arizona where they picked up enough Fentanyl to killed 65 million Americans.” Defense counsel did not object to the prosecutor’s questions and remarks on border security, illegal immigration, undocumented immigrants, and drug smuggling.

A jury found Zamora guilty as charged.

Zamora appealed. He argued his right to an impartial jury was violated when the Prosecutor appealed to jurors’ potential racial bias during voir dire. Division Three of the Court of Appeals affirmed Zamora’s convictions, concluding that his constitutional rights were not violated. Zamora appealed to the WA Supreme Court. They accepted review.

LEGAL ISSUE

Whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

COURT’S ANALYSIS & CONCLUSIONS

The Court concluded that the prosecutor intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora’s presumption of innocence. Therefore, Zamora was denied his constitutional right to an impartial jury because of the prosecutor’s race-based misconduct.

Justice Charled W. Johnson authored the Court’s opinion. He began by explaining that the Sixth and Fourteenth Amendments to the United States Constitution and the Washington State Constitution guarantee a criminal defendant the right to an impartial jury. Justice Johnson said the Court has long recognized that the constitutional right to a jury trial includes the right to an unbiased and unprejudiced jury. He also upheld the right to fair trial in the face of prosecutorial misconduct:

“As a quasi-judicial officer and a representative of the State, a prosecutor owes a duty to a defendant to see that their rights to a constitutionally fair trial are not violated. Thus, a claim of prosecutorial misconduct directly implicates the constitutional right to a fair trial.” ~Justice Johnson, WA Supreme Court.

Justice Johnson also explained that in order to prevail on a prosecutorial misconduct claim, a defendant who timely objects must prove that the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. If the defendant does not object, on appeal the defendant must show the improper conduct resulted in incurable prejudice.

However, when the misconduct implicates racial bias, “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State proves beyond a reasonable doubt that the race-based misconduct did not affect the jury’s verdict.

“To determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments during voir dire as an appeal to the jury panel’s potential prejudice, bias, or stereotypes about Latinxs. The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” ~Justice Johnson, WA Supreme Court

Here, the Court reasoned that the prosecutor’s questions and remarks implicated the defendant’s ethnicity. The prosecutor’s conduct appealed to the jurors’ potential racial or ethnic bias, stereotypes, or prejudice. The Court said we must be vigilant of conduct that appeals to racial or ethnic bias even when not expressly referencing race or ethnicity:

“The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable. Accordingly, we hold that the prosecutor in this case committed race-based misconduct during voir dire, and the resulting prejudice to the defendant is incurable and requires reversal. We reverse the Court of Appeals and reverse and vacate the convictions.” ~Justice Johnson, WA Supreme Court

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.

Bellingham Residents Express Concern Over Rising Crime Rates

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, police, Police Militarization, Police Misconduct, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Neighborhood Policing - City of Bellingham

KGMI reports that the Bellingham City Council, mayor and other leaders heard from residents about their concerns about public safety at a virtual community meeting held on Monday, May 16th.

Residents expressed concerns about housing prices, drug deals in their neighborhoods and rising crime rates. Chief Deputy for the Bellingham Police Department Don Ahlmer told the meeting that while crime rates are up, the numbers have to be viewed with perspective.

“If you look at the numbers for aggravated assault, if a seven year average is 124, the last three-year average is roughly 50 more a year. You’re looking at one more assault a week . . . So, numbers are numbers . . . But I don’t want the public or anybody watching this to think, oh my gosh, there’s like a hundred extra assaults a day.” ~ Deputy Almer, Bellingham Police Department

Mayor Seth Fleetwood said the city needs more police officers.

“We’re fortunate to have a police department that is exceptional, made up of capable, caring, highly confident, trained professionals,” said Fleetwood. “But our staffing levels are down and we’re doing all we can to staff back up. And I know that we’re going to get there.”

Click here to watch a YouTube video of the meeting.

My opinion? The concerns of Bellingham’s citizens reflect national trends that crime – especially homicides and manslaughter – has increased. Covid disrupted every aspect of life in the past two years. Social services and supports that help keep crime down vanished overnight. Schools could no longer keep unruly teens safe and distracted. A broader sense of disorder and chaos could have fueled a so-called moral holiday, in which people disregard laws and norms.

Citizens are righteously concerned with crimes happening in their backyards. And yes, we need solutions. The solutions involve training and hiring police officers who are not racially biased. We need police officers who won’t conduct illegal searches/seizures. And we need police officers who won’t go about policing poverty. These practices strain the criminal justice system. They also burden impoverished people with fines for minor offenses and fracture the relationship between police and minorities.

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.

Consensual Seizures

Bellingham Defense Attorney, Constitutional Rights, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

MTS Says Its Officers Aren't Bound by New State Use-of-Force Law

In State v. Meredith, the WA Court of Appeals held that a bus passenger consents to a warrantless search and seizure consisting of a bus fare enforcement officer requests the passenger provide proof of payment.

BACKGROUND FACTS

The defendant Mr. Meredith was riding the Swift regional transit bus in Everett late one morning. Two officers from the Snohomish County Sheriff’s Office boarded to conduct fare enforcement. When conducting fare enforcement, officers would board a bus at a stop and then ask individual passengers for proof of payment while the bus was driving from one stop to the next. A “chase vehicle” would follow the bus to help with identifying and processing anyone ordered off the bus for nonpayment.

Officer Dalton moved to the back of the bus. He began working his way forward and saying “proof of payment or ORCA card” to each passenger in a conversational tone. His partner moved to the front of the bus and worked backward. The bus drove to its next stop while the officers checked for proof of payment.

Officer Dalton requested “proof of payment or ORCA card” from Meredith, who began to check his pants and backpack. Failure to provide proof of payment could result in a notice of infraction or arrest. The bus continued along its route, and Meredith searched for four or five minutes without producing proof of payment. Officer Dalton ordered him to disembark at the next stop, and they left the bus together.

Officer Dalton asked Meredith for his name and identification. Meredith gave a fake name. Officer Dalton radioed dispatch to run the name, and it produced no returns in either Washington or Colorado. Officer Dalton suspected Meredith gave a fake name. Officer Zelaya arrived to help determine Meredith’s identity.

Officer Zelaya used a mobile fingerprint reader to scan Meredith’s fingerprints. He learned Meredith’s real name and that he had two outstanding felony warrants. Meredith was arrested on his warrants and for committing third degree theft of services for nonpayment of fare. He was charged with Making a False Statement to a Public Servant.

Pretrial, Meredith moved to suppress evidence resulting from Officer Dalton’s fare enforcement. The trial court denied the motion. A jury found Meredith guilty of making a false statement. Meredith appealed under arguments that his constitutional rights were violated by the officers when they executed an unauthorized and warrantless seizure.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals said the Washington Constitution  provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Furthermore, the WA Constitution protects against unauthorized seizures by government, despite not using the word “seize.”

However, the Court emphasized that Meredith did not allege his privacy was violated. It reasoned that the analysis does not not depend upon the “privacy” of information requested when police merely request proof of payment on public transit. Therefore, a person can be unlawfully seized without a violation of their privacy.

Next, the Court analyzed whether Meredith validly consented to being seized. “We consider whether his consent was voluntary, whether the seizure was limited to the scope of the consent granted, and whether consent was granted by a party with authority to do so,” said the Court. “We determine whether consent was voluntary by considering the totality of the circumstances from the perspective of a reasonable—meaning innocent—person.”

“Here, Meredith freely chose to contract with Swift Transit for transportation. He agreed to pay and provide proof of payment. And as a reasonable rider, he necessarily understood his duty to pay his fare and provide proof of payment when asked. Thus, like the civilian base visitor in Farkas, Meredith was aware of the possible seizure of his person and consented to it.” ~WA Court of Appeals

The Court concluded by saying Meredith voluntarily consented to Officer Dalton’s initial contact. With that the Court affirmed Meredith’s conviction.

Please review my Search & Seizure Legal Guide and 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.

Unwitting Possession

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Methamphetamine, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Strict Liability Offenses, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

I am sorry I didn't know you did that! – TheWealthySon : Success Toolbox

In State v. Blake , the WA Supreme Court held that Washington’s Drug Possession Statute exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct.

FACTUAL BACKGROUND

In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including the Defendant Ms. Blake.  At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Ms. Blake’s jeans.

The State charged Blake with Possession of a Controlled Substance.  At her bench trial, Blake relied on the judicially created affirmative defense of Unwitting Possession. She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest.

Blake also said she had never used methamphetamine and did not know the jeans had
drugs in the pocket. She acknowledged that the drugs had been “on her” on the day of her arrest. Blake’s boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend. Despite her defense, the trial court found that Blake had possessed methamphetamine on the day in question and found Blake guilty.

On appeal, Blake argues that requiring her to prove unwitting possession to the charged offense violates due process.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that Washington’s  felony drug possession statute – which is a essentially a strict liability statute – exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct with no mental state to commit the crime.

“The basic drug possession statute at issue in this case states, ‘It is unlawful for any person to possess a controlled substance'”, wrote Justice McCloud. “The State need not prove any mens rea (mental state) element to secure a conviction for this crime.”

The Court reasoned that the Due Process Clause protections limit the Legislature’s police power to criminalize wholly innocent and passive non-conduct. Stated differently, a defendant’s passive and innocent non-conduct falls outside the State’s power to criminalize:

“Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the state’s police power.”  ~Justice Gordon McCloud, WA Supreme Court.

The Court further reasoned that the State’s police power is not infinite. “If it were, the result would be a police state, and the legislative branch of the government would be omnipotent,” said Justice McCloud. Finally, the Court reasoned that  the statute criminalizes innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess. “The legislature’s police power goes far, but not that far,” said the Court.

Accordingly, the Court held that RCW 69.50.4013(1)—the portion of the simple drug possession statute creating this crime—violates the due process clauses of the state and federal constitutions and is void.

With that, the WA Supreme Court vacated Ms. Blake’s conviction.

My opinion? Excellent decision, Finally, the courts are giving teeth to the Unwitting Possession Defense. In this defense, a person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if (1) a person did not know that the substance was in their possession or (2) did not know the nature of the substance.

The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

Up until now, Washington’s felony drug possession statute essentially circumvented the Unwitting Possession defense.  Thankfully, the WA Supreme Court put a stop to that.
Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Constructive Possession

Bellingham Defense Attorney, Constitutional Rights, Constructive Possession, Drug Offenses, felony, Methamphetamine, Mount Vernon Criminal Defense Attorney, police, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Constructive Possession | Murphy's Law Office

“How can I be arrested for possessing drugs when I didn’t have the drugs anywhere on my body?”

A recent case handed down from the Washington Court of Appeals succinctly answers that question in the context of an unlawful possession case involving the search and seizure of drugs from a vehicle.

In State v. Listoe, the Court held that sufficient evidence existed to establish the defendant had constructive possession over the illegal drugs discovered on the back floorboards of the car he was driving.

FACTUAL BACKGROUND

On May 11, 2018, Deputy Andrew Hren observed a black car parked at a 7-Eleven convenience store. On running the license plate, Hren discovered that the car’s registration had expired. The car pulled out of the 7-Eleven parking lot, Hren got behind it and pulled it over. Listoe, who was driving the car, did not pull over immediately but traveled for about 1,000 feet first, which Hren believed was uncommon.

As Hren approached the car, he could see Listoe making a series of movements with his hands. Listoe opened the door and began to step out, but Hren ordered him to get back in the car. Hren observed Listoe making additional “furtive movements” in his lap area. Hren then ordered Listoe to place his hands on the steering wheel, and Listoe complied.

Hren informed Listoe of the reason for pulling him over, and Listoe responded that the car was not his and that he did not know the registration was expired. A passenger named Ms. Lemon was sitting in the car’s passenger seat. After briefly speaking to Lemon, Hren told Lemon that she was free to leave, and she left. Lemon was not searched during the encounter.

Hren ordered Listoe out of the vehicle and placed Listoe under arrest. During the search incident to Listoe’s arrest, Hren found a plastic bag that contained a white crystalline substance on Listoe’s person. The substance appeared to be methamphetamine. Listoe also had $221 in his wallet.

A K-9 unit alerted to the presence of controlled substances in the car Listoe was driving. Due to the K-9 alert, Hren obtained a search warrant to search the interior of the vehicle for additional evidence of controlled substances. Police found numerous items associated with drug dealing activities: a notepad with a name and phone number, a digital scale, a plastic Tupperware container that had white residue, a factory packaged plastic bag with syringes, and a mint container that contained shards of a white crystalline substance that Hren believed was methamphetamine.

Listoe was charged with one count of possession of methamphetamine with intent to
manufacture or deliver and one count of possession of a controlled substance (Suboxone). The jury found him guilty as charged.

On appeal, Listoe claims that there was insufficient evidence that he had constructive possession over the methamphetamine and Suboxone discovered on the back floorboards of the car he was driving. Listoe asserts that evidence was insufficient because (1) the car was not his, (2) the officers did not find evidence proving that Listoe had dominion and control over the car and its contents, and (3) the drugs on the rear floor of the car could have reasonably belonged to Lemon.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals held that We hold that the evidence was sufficient to establish that Listoe had constructive possession over the items the officers discovered in the back of the car.

“The facts that (1) Listoe was driving the vehicle, (2) Listoe had methamphetamine on his person, which is one of the same drugs found in the back of the vehicle, and (3) Deputy Hren observed Listoe making furtive movements while taking an uncommonly long time to pull over, provide sufficient evidence of constructive possession to support Listoe’s convictions.” ~WA Court of Appeals

The Court reasoned that under State v. Reichert, possession can either be actual or constructive. It also reasoned that under State v. George, whereas actual possession requires an individual to have physical custody of a given item, constructive possession may be shown where the individual has “dominion and control” over that item. Control need not be exclusive to establish possession, and more than one person can be in possession of the same item.

“We examine the totality of the circumstances and look to a variety of factors to determine whether an individual has dominion and control over an item,” said the court. The court further said for example, that it may consider whether the individual could readily convert the items to his or her actual possession and/or the defendant’s physical proximity to a given item.

Finally, the court said it may also consider whether the defendant had dominion and control over the broader premises in which the item was located. In cases where the defendant was driving a vehicle that the defendant owned, courts have found sufficient evidence that the defendant had dominion and control over the vehicle’s premises and its contents.

With that, the Court rendered its decision.

“The fact that Listoe was driving the car weighs in favor of finding that Listoe had dominion
and control over the vehicle and its contents,” said the court. The court also reasoned that the fact that fruits and vegetables, which are perishable items, were discovered in the same reusable black grocery bag as the white bag containing the contraband, shows that these items likely belonged to either Listoe or Lemon.

“It is unlikely that perishable items were left in the car by a prior driver or passenger,” said the Court. “Further, Listoe’s furtive hand movements on two occasions, as well the fact that Listoe drove an uncommonly long distance before pulling over, raise an inference that the was handling the contraband at that time, or possibly strategizing about where to hide it.”

The Court believed this same fact could also support a reasonable inference that Listoe could convert dominion and control over the items in the vehicle into his actual possession. In addition, because Hren found methamphetamine on Listoe’s person during the search incident to arrest, and methamphetamine was also discovered in the back of the vehicle, a rational trier of fact could infer that the methamphetamine in the back of the vehicle belonged to Listoe as well.

Finally, the Court of Appeals reasoned that while the above facts may not have been sufficient to establish constructive possession in isolation, taken together, they would lead a rational trier of fact to find that Listoe had constructive possession over the items in the back of the vehicle he was driving. ”

Ultimately, although the court found that Listoe’s convictions were supported by sufficient evidence, it reversed his conviction on the technicality that the trial court improperly applied GR 37 when considering his objection to the State’s peremptory challenge of a non-white juror.

Please contact my office if you, a friend or family member face criminal charges involving the search and seizure of vehicles, homes and/or persons. Sometimes, police officers violate people’s Constitutional rights during the course of a search. Hiring an experienced criminal defense attorney who knows the law is the first and best step toward justice.