Category Archives: Constitutional Rights

State v. Wisdom: Unlawful Search of Zipped Shaving Kit Bag

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Good opinion.

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

State v. Howerton: Citizen 911 Call Supports Terry Stop

911 Call, Bellingham Defense Attorney, Constitutional Rights, Due Process, Jury Trial, law enforcement, misdemeanor, police, Property Crimes, Search and Seizure, Terry Stop, Theft of Motor Vehicle, Washington Court of Appeals, , ,

terry stop | Nevada Public Radio

In State v. Howerton, the WA Court of Appeals held that a citizen informant’s 911 call was reliable enough to support a Terry stop. The citizen informant provided her name, address, and telephone number to the dispatch, included a statement that she had just witnessed the crime, objective facts that indicated criminal rather than legal activity, and an offer to speak with the police if they needed to contact her.

On September 29, 2013, at 2:00 a.m., Laura Parks called 911 from her cell phone to report that she just witnessed someone break into a van parked across the street from her house. She provided her name, address, and telephone number to the dispatcher. Parks described the suspect as a black male, average build, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. She stated he left the area on foot and was heading south on Second Avenue in Burien, Washington.

Police responded to the call and began searching the area for the subject. They contacted a man identified as Delante Howerton matching the description. Howerton was handcuffed. Police noticed a blade sticking out of Howerton’s sleeve. When searched Howerton for weapons, police officers found a foot-long bread knife and a screwdriver on Howerton’s person.

Ms. Parks confirmed that Howerton was the individual she saw break into the van earlier.

Howerton was charged with attempted Theft of a Motor Vehicle, Making or Possessing Vehicle Theft Tools, and Intimidating a Public Servant. The trial court later dismissed the charge of intimidating a public servant. Howerton moved to suppress evidence obtained as a result of the investigatory detention. Specifically, Howerton argued Hutchinson lacked reasonable articulable suspicion to detain him when Hutchinson’s only source of information was from a named but unknown telephone informant. After a CrR 3.5 and CrR 3.6 hearing, the trial court denied Howerton’s motion to suppress.

A jury convicted Howerton of misdemeanor second degree attempted taking of a motor vehicle without permission and making or having vehicle theft tools. He appealed.

The Court of Appeals upheld Howerton’s conviction and ruled his stop/arrest was lawful under Terry v. Ohio. They reasoned that an investigatory Terry stop is permissible if he investigating officer has a reasonable and articulable suspicion that the individual is involved in criminal activity. A reasonable suspicion is the substantial possibility that criminal conduct has occurred or is about to occur. A reasonable suspicion can arise from information that is less reliable than that required to establish probable cause.

The Court further reasoned that an informant’s tip can provide police with reasonable suspicion to justify an investigatory Terry stop if the tip possesses sufficient “‘indicia of reliability.'” Courts employ the totality of the circumstances test to determine whether an informant’s tip possessed sufficient indicia of reliability to support reasonable suspicion.

When deciding whether this indicia of reliability exists, the courts will generally consider several factors, primarily “(1) whether the informant is reliable, (2) whether the information was obtained in a reliable fashion, and (3) whether the officers can corroborate any details of the informant’s tip.” Known citizen informants are presumptively reliable.

Here, the Court further reasoned that Parks’s 911 call demonstrated a sufficient factual basis to provide reasonable suspicion for the seizure:

Here, Parks unequivocally indicated to the 911 dispatcher that she was an eyewitness. When she called 911, she told the dispatcher, “I just saw a robbery.” She provided her full name, her address, and her telephone number. She indicated that she was willing to speak with police if they needed to contact her. She told the dispatcher the incident occurred “directly across the street” from her house and that it “just now happened.” She stated that an individual “broke into a car.” She said she actually saw him enter the car.

She gave a detailed description of the suspect—black male, average build, short hair, five feet seven inches tall, wearing a baggy black leather jacket and baggy pants. The dispatcher immediately broadcast this description via radio to officers. Parks stated that the suspect just left the scene heading south on Second Avenue. She also accurately described the street location. Further, Parks reported objective facts that indicated criminal rather than legal activity.

The court further elaborated that Ms. Parks reinforced her factual basis for these allegations by stating that the incident “just now happened” and that the car was directly across the street from her house. Parks reported facts she personally observed. The Court decided the information was reliably obtained and that the police corroborated the information from Ms. Parks’ tip.

Consequently, the totality of the circumstances supported Howerton’s  Terry stop. The Court of Appeals upheld his conviction.

Please review my Search and 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.

State v. Reis: Search & Seizure in Medical Marijuana Case

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, law enforcement, Legislation, marijuana, Plain View, police, Privacy, Search and Seizure, Search Warrant, Washington Court of Appeals, Washington Supreme Court, , ,

In State v. Reis, the WA Supreme Court decided that although medical marijuana use is a defense, police officers can still obtain search warrants and search people’s homes if sufficient probable cause of criminal activity exists.

In 2012, Detective Thomas Calabrese received an anonymous tip from an individual living in the Shorewood area of Burien, informing him that a man named “William” was actively growing marijuana in a house in that neighborhood. The informant, who feared retaliation by Reis, declined to provide any additional information. Detective Calabrese began investigating.

He conducted stakeout surveillance of the home and watched the defendant William Reis tending to numerous marijuana plants growing in the backyard. The detective also heard a distinct humming sound coming from the northwest side of the target home and observed black plastic covering the daylight basement window. Detective Calabrese also noticed condensation on this window.

Detective Calabrese also discovered Mr. Reis had a prior DV conviction and, during that arrest, officers discovered significant evidence of a marijuana grow operation, as well as a rifle and $18,000 cash hidden in the attic. Additional searches of Reis’s financial records in 2005 connected him to a large marijuana grow operation in California. Detective Calabrese also learned that Reis had been arrested in 2011 for possession of 1.3 grams of marijuana.

Based on this information, Detective Calabrese put all of this information in an affidavit of probable cause to support a search warrant of Reis’s home. Judge Eide granted a search warrant, finding probable cause to believe that Reis was violating Washington’s Uniform Controlled Substances Act, RCW 69.50. A search of Reis’s home pursuant to the search warrant revealed plants, scales, ledgers, sales receipts, and tools indicative of a marijuana grow operation. The search also revealed 37 plants and 210.72 ounces of cannabis.

Reis moved to suppress the evidence on the basis that officers lacked probable cause to search his home. The trial court denied his motion. The WA Court of Appeals granted review. They decided the authorized use of medical marijuana under RCW 69.51A.040 does not stop an officer from searching a home for criminal activity. Although compliant use of medical marijuana under the statute is an affirmative defense, it does not negate probable cause required for a search warrant. State v. Reis, 180 Wn.App. 438, 322 P.3d 1238 (2014). The WA Supreme Court  granted review and affirmed the Court of Appeals.

The WA Supremes reasoned that RCW 69.51A.040, as passed, does not decriminalize the medical use of marijuana. Instead, the plain language of the statute establishes a limited exception to the general prohibition against marijuana that existed at the time that the search warrant in this case issued. The Court summarized it best here:

The legislature may have intended to create heightened protections for qualifying patients who registered. However, because registration is currently impossible, the statute provides qualifying patients with only an affirmative defense until the legislature is able to establish a registry. Therefore, we reject Reis’s argument and affirm the Court of Appeals.

The Court describes how the “Medical Marijuana Defense” works under RCW 69.51A.040.

There are six required “terms and conditions” contained within RCW 69.51A.040. Subsection (1) places limits on the quantity of cannabis that a qualifying patient or designated provider may possess. Subsections (2) and (3) require registration with the Department of Health-now impossible in light of the governor’s veto-and require that the patient keep their registration within their home and present it to inquiring investigating officers. Subsections (4 ), (5), and (6) require that the investigating officer not possess evidence that the qualifying patient or designated provider is converting marijuana for their own use or benefit, or otherwise violating distribution requirements or registration requirements. If a qualifying patient or designated provider complies with all of these requirements, including registration, the use of marijuana does not constitute a crime.

Here, the search was valid because the plain language of the statute and the legislative intent lead to the conclusion that a user or possessor of cannabis may raise only an affirmative defense.

My opinion? Hate to say, but the reasoning makes sense. After all, assaulting people in the street is still a crime. One must prove a defense – hypothetically speaking, self-defense – by a preponderance of the evidence in order to be found not guilty of the crime of assault. The same reasoning applies here. The medical use of marijuana does not decriminalize marijuana use – it only provides a defense if one is charged with marihuana-related crimes. Police officers can still investigate citizens and apply for search warrants if probable cause exists that a crime is being committed.

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

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

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, marijuana, police, Privacy, Search and Seizure, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Joyce Carol Oates revisits past in 'High Crime' tales

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

TERRY STOPS

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

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

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

State v. Fuentes

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

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

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

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

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

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

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

State v. Sandoz

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State v. A.A.: Unlawful Search of Juvenile

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, Juvenile, Methamphetamine, Privacy, Search and Seizure, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

 In State v. AA, the Washington Court of Appeals decided an officer who detained a runaway juvenile under RCW 13.32A, the Family Reconciliation Act, unlawfully removed methamphetamine and marijuana from the youth’s pocket. The court reversed his conviction.

In State v. AA, the juvenile defendant A.A. was reported as a runaway. Officer Escamilla found A.A. walking down an alley a few blocks north of his mother’s house. The Officer detains AA and conducts a search before taking AA to the Crisis Residential Center (CRC), a detention center for minors.

Officer Escamilla searched A.A. near his patrol car. During the search, the officer found methamphetamine in a coin pocket of A.A.’s pants and marijuana in another pocket. The officer then transported A.A. to a juvenile detention center, rather than the CRC. The State charged A.A. with two counts of Unlawful Possession of a Controlled Substance.

The trial court denied AA’s motion to suppress the evidence. At the CrR 3.6 hearing, Officer Escamilla testified that A.A. was “just walking down an alley” and appeared “upset,” but that he was not engaged in criminal activity and did not appear dangerous to himself or others. At a bench trial, A.A .was found guilty on both drug charges. He appealed. The Court of Appeals took the case.

The sole issue on appeal was whether the trial court mistakenly concluded Officer Escamilla’s search of  A.A. was reasonable under the Family Reconciliation Act (the Act) because A.A. was going to be transported to the CRC, a secure facility for juveniles, which requires a search of juveniles before admission.

The Court of Appeals decided that while an officer may lawfully conduct a pat-down search for weapons prior to transporting the youth, the officer may not conduct a full search.

The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit unreasonable searches and seizures.

The Court reasoned that Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution  prohibit unreasonable searches and seizures. Under these provisions, warrantless searches are “per se” unreasonable. However, a search incident to a lawful arrest is a recognized exception to the warrant requirement. The exception allows an officer to search an arrestee for weapons as a measure to protect the officer or to search for evidence that may be destroyed. The community caretaking function, which allows for limited searches when it is necessary for police officers to render emergency aid or assistance, is also a recognized exception to the warrant requirement. These types of searches are “divorced” from a criminal investigation. Finally, the State has the burden of proving the search was lawful.

The Court reasoned that here, the particular circumstances did not justify the search of A.A.’s pockets. Once the officer conducted the pat-down search and determined that A.A. did not have a weapon, the search should have stopped. A.A. had not committed a crime and, therefore, there was no need to preserve evidence of a crime. A.A. did not exhibit signs of dangerousness to himself or others. The only concern was for officer safety.

Finally, the Court reasoned that although A.A. would be transported to a detention facility with other minors, this facility “was a noncriminal protective custody situation, which requires us to accord maximum weight to A.A.’s privacy interest in evaluating the reasonableness of the search.”

The Court of Appeals reversed A.A.’s conviction.

My opinion? Excellent decision. The law was simple, and simply applied. The State failed to establish an exception to the warrant requirement. Period. 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. Irby: A Juror’s Bias Reverses Conviction

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Rigged: Racial Bias in Jury Selection | The Portland Observer

In State v. Irby, The WA Court of Appeals reversed the murder conviction of a defendant because a juror’s remarks during jury selection indicated her express bias against the defendant.

In reaching their decision, the court reasoned that when a juror makes an unqualified statement expressing actual bias, seating the juror is a manifest constitutional error that may be raised on appeal. Also, a juror’s statement during voir dire that she “would like to say he’s guilty” requires a new trial because no inquiry was made from the Prosecution that would have neutralized the statement.

In 2005, James Rock was murdered at his home in rural Skagit County. The investigations led to Terrance Irby, a known associate of Rock. Rock’s neighbors had seen Irby in the neighborhood on March 8. Irby was soon located in custody in Marysville. He had been arrested there on March 8, after running a red light and attempting to elude police. In Irby’s truck, officers found Rock’s weapons and boots splashed with Rock’s blood.

Irby was arrested and charged with Aggravated Murder in the First Degree, Burglary in the First Degree, and Felony Murder.

Oddly enough, in 2011, the WA Supreme Court had already reversed Irby’s convictions because of a violation of his right to a public trial. The violation occurred when the court and the attorneys agreed by e-mail, without Irby’s participation, to dismiss some of the potential jurors before voir dire began.

The State recharged the case. He awaited trial.  Irby had three different standby counselors while his case was pending. Irby fired all of them before the second trial began. As a consequence, the trial court granted Irby’s request to proceed pro se; or in other words, by himself without defense counsel.

On March 5, 2013—the first day scheduled for jury selection —Irby voluntarily absented himself from the proceedings. Irby said he did not believe he could get a fair trial in Skagit County. Trial became somewhat of a circus. By Irby’s choice, the trial proceeded before a jury that had been picked without any participation by Irby. Every day before trial resumed, the trial court had Irby brought from the jail into the courtroom so that the court could verify that he still wanted to remain absent.

The jury convicted Irby as charged on March 12, 2013.

The primary issue on appeal was whether juror bias – specifically, the bias of the juror who said she “would like to say he’s guilty” – violated Irby’s right to a fair and impartial jury.

In reaching its decision the Court of Appeals reasoned that under RAP 2.5(a)(3), a party may raise for the first time on appeal a “manifest error affecting a constitutional right.” Here, criminal defendants have a federal and state constitutional right to a fair and impartial jury. Criminal defendants have a federal and state constitutional right to a fair and impartial jury. The error alleged here, seating a biased juror, violates this right.

Furthermore, the court reasoned that seating that particular juror manifested actual bias. Under RCW 4.44.170(2) actual bias is “the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.” The Court of Appeals said both thetrial judge and the Prosecutor failed to elicit any assurances from that juror that she had an open mind on the issue of guilt. This was wrong.

The Court of Appeals concluded that the juror at question demonstrated actual bias and that seating her was manifest constitutional error requiring reversal of all convictions and remand for a new trial.

My opinion? It’s awful and tragic that Mr. Rock died a violent and painful death. My condolences go to his family and everyone who cared for him. Anyone in their circumstance would want the murderer brought to justice and convicted for these horrible crimes.

However, gaining convictions is meaningless if the courts and prosecutors violate a defendant’s rights in the process. It devalues the entire criminal justice system. It loses credibility and coherence.

Perhaps the Judge and Prosecutor failed to make a record of “rehabilitating” that particular juror of her biases – a process which happens at EVERY jury trial I’ve conducted – because neither Mr. Irby nor a criminal defense attorney was at jury selection to attempt to strike that particular juror for cause. Neverthless, all of us now have a greater understanding of why it’s necessary for attorneys to engage the colloquy of ensuring that jurors are NOT biased – even when they most certainly are.

Eliminating biased jurors from trial not only ensures a fair trial for the defendant. It also creates a court record for ensuring that jury verdicts are not overturned on appeal. As this one was.

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.

Police Body Cameras: Privacy & Costs

ACLU, Bellingham Defense Attorney, Body camera, Constitutional Rights, Evidence, law enforcement, police, , ,

A recent article from the New York Times titled, Downside of Police Body Cameras: Your Arrest Hits Youtube has reignited the discussion of whether police body cameras are worth the trouble.

Recently, law enforcement agencies from around the country have been moving with unusual speed to equip officers with body cameras to film their encounters with the public. But the adoption of these cameras has created a new conflict over who has the right to view the recordings.

In Seattle, where some officers started wearing body cameras, the department has set up its own YouTube channel, broadcasting a stream of blurred images to protect the privacy of people filmed. Much of this footage is uncontroversial; one scene shows a woman jogging past a group of people and an officer watching her, then having a muted conversation with people whose faces have been obscured.

Interestingly enough, very intense public discussion of the issue is happening here in Washington State. Under RCW 42.56, which is Washington State’s Public Disclosure Law, anyone may file a public records request to obtain body camera recordings.

In Bremerton, Chief Strachan tested body cameras last fall before deciding NOT to purchase them. He said the demands the department had received for video during the testing period had been too burdensome.

“We got a request for any and all video shot by a police officer,” he said. “It’s pretty much impossible.”

In nearby King County, Sheriff John Urquhart said he would not equip his deputies with cameras until lawmakers reworked disclosure rules.

“I’d do it in a heartbeat,” he said, “but if the public wants body cameras, they’re going to have to give something up on public disclosure.”

My opinion? Some of the concerns mentioned above appear warranted, however, others do not. True, it’s concerning for a DV victim’s likeness and images to appear on YouTube. It might even violate their privacy. RCW 42.56.050 states, “A person’s ‘right to privacy,’ ‘right of privacy,’ ‘privacy,’ or ‘personal privacy,’ as these terms are used in this chapter, is invaded or violated only if disclosure of information about the person: (1) would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public.”

Under this, body camera evidence which violates people’s privacy rights might form the basis to support a civil lawsuit against police agencies which readily release that information without redacting people’s likeness and images. Indeed, under RCW 42.56.240, that information is exempt from Public Disclosure. In addressing this problem, it’s comforting that the Seattle The department broadcasts its footage on its own YouTube channel with people’s faces obscured and conversations muted to protect the privacy of people being filmed.

However, I disagree with the Bremerton police chief’s decision to refuse a body camera program altogether because it costs his agency too much money/resources to properly grant people’s public disclosure requests. Under RCW 42.56.120, a reasonable charge may be imposed for providing copies of public records. That makes sense. Police agencies should charge fees when they use their resources to inspect and copy requested material.

Here, the key is what a “reasonable” fee implies. Although law enforcement agencies should charge comparable costs to the consumer for using their resources to inspecting and copy requested materials, the charges should not be overly expensive. For example, in Florida, the Sarasota Police Department has temporarily halted its body camera program after an ACLU Florida lawyer sued over the costs of obtaining footage. The city said it would charge $18,000 for 84 hours of video to be placed on DVDs — about $214 per hour of video.

Police body cameras are an excellent idea. They put everyone on their best behavior. Let’s work through the bugs and restrain ourselves from throwing the baby out with the bathwater.

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. Peppin: No Privacy for Public File Sharing

Bellingham Defense Attorney, Constitutional Rights, felony, Forensics, Search and Seizure, Search Warrant, Sex Crimes, Washington Court of Appeals, , ,

The Benefits of Electronic File Transfer | GoAnywhere MFT

In State v. Peppin, the WA Court of Appeals ruled law enforcement’s warrantless use of enhanced  peer to peer file sharing software to remotely access shared files on an individual’s computer does not violate either the Fourth Amendment of the United States Constitution or article I, sec. 7 of the Washington Constitution.

In other words, an individual does not have a constitutionally protected privacy right in image files he shares with the public.

Here, defendant Casey Peppin was found guilty of three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree under RCW 9.68A.670. On December 29,2011, Spokane Detective Brian Cestnik conducted an online investigation of the Gnutella network to identify persons possessing and sharing child pornography. Using peer to peer software called “Round Up” version 1.5.3, Detective Cestnik found child pornography on Mr. Peppin’s computer in a shared folder. He obtained a warrant, searched he defendant’s home and recovered the computer(s) allegedly used to view and share images of minors engaged in sexual conduct.

BACKGROUND ON “PEER TO PEER FILE SHARING”

For those who don’t know, “peer to peer file sharing” is a method of Internet communication that allows users to share digital files. User computers link together to form a network; the network allows direct transfer of shared files from one user to another. Peer to peer software applications allow users to set up and share files on the network with others using compatible peer to peer software. For instance, LimeWire and Shareaza are software applications that allow users to share files over the Gnutella network.

To gain access to shared files, a user must first download peer to peer software, which can be found on the Internet. Then, the user opens the peer to peer software on his or her computer and conducts a keyword search for files that are currently being shared on the network. The results are displayed and the user selects a file for download.

The downloaded file is transferred through a direct connection between the computer wishing to share the file and the user’s computer requesting the file. The Gnutella network gives users the ability to see a list of all files that are available for sharing on a particular computer.

F or example, a person interested in obtaining child pornographic images opens the peer to peer software application on his or her computer and conducts a file search using keyword terms such as “preteen sex.” The search is sent out over the network of computers to those using compatible peer to peer software. The results of the search are returned and displayed on the user’s computer. The user selects the file he or she wishes to download. The file is then downloaded directly from the host computer onto the user’s computer. The downloaded file is stored on the user’s computer until moved or deleted.

A peer to peer file transfer is assisted by reference to an Internet Protocol (IP) address. In general, the numeric IP address is unique to a particular computer during an online Internet session. The IP address provides a location, making it possible for data to be transferred between computers.

This is where the police work comes in: investigators can search public records on the Internet to determine which Internet provider is assigned the IP address. Investigators can contact the Internet provider and gain information about the user based on the IP address assigned to the computer.

THE INVESTIGATIONS

Here, Detective Cestnik searched the Gnutella network for “pthc,” the commonly used term for preteen hard core Internet pornography. Clerk’s Papers (CP) at 17. The results indicated that images matching the search terms could be found on a host computer with an IP address linked to Spokane. Detective Cestnik’s check of the IP address through two different Internet search engines confirmed that the IP address was in Spokane and that Qwest Communications was the provider.

Next, Detective Cestnik presented Qwest Communications with a search warrant requesting information on the IP address for the host computer. Qwest Communications advised Detective Cestnik that the IP address was connected to Mr. Peppin and provided Mr. Peppin’s address.

Detective Cestnik then obtained a search warrant for Mr. Peppin’s computer. A complete forensic investigation uncovered over 100 videos of what appeared to be minors engaged in sexually explicit conduct.

TRIAL OUTCOME

Mr. Peppin moved to suppress the computer files downloaded by Detective Cestnik during his Internet search. He maintained that law enforcement’s access and download of his computer files via the Internet was an intrusion into his private affairs and an unlawful warrantless search. The court denied Peppin’s motions to suppress. At trial, he was found guilty on all 3 counts.

COURT OF APPEALS DECISION

The legal issue addressed by the court was whether Mr. Peppin had a constitutionally protected privacy right in the image files he shared with the public. In short, the Court said, “No.”

First, federal circuit courts have consistently held that a person who installs and uses file sharing software does not have a reasonable expectation ofprivacy in the files to be shared on his or her computer.

Second, even the broader protection of the Washington State Constitution also does not offer any relief to Mr. Peppin. It stated, “What is voluntarily exposed to the general public and observable without the use of enhancement devices from an unprotected area is not considered part of a person’s private affairs.” The court emphasized that here, Mr. Peppin voluntarily offered public access to the computer files obtained by Detective Cestnik. Mr. Peppin used peer to peer software to make these shared files available without restriction. Anyone wanting to view or download the files could do so. Law enforcement’s access of these files was not an intrusion into Mr. Peppin’s private affairs.

The court summed it up:

Additionally, this is not the type of information that a citizen of this state is entitled to hold as private. The inherent nature of peer to peer software is the public sharing of digital computer files. Individuals using file sharing software cannot expect a privacy interest in files they hold open to the public. Again, Mr. Peppin’s use of peer to peer file sharing voluntarily opened this information to the public for anyone to access, including law enforcement. There is no disturbance of a person’s private affairs when law enforcement accesses shared computer files that the person holds publically available for viewing and download. Thus, there is no violation within the context of article I, section 7 of the Washington Constitution.

My opinion? Although I understand the logic – as well as the government’s desire to criminalize the sexual exploitation of minors – at what point does “private” communications end and “public” communications begin? How intrusive is the government’s technology? How often do they use the internet to spy on citizens for public safety reasons? I suppose we’ll see . . .

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. Jones: Slight Lane Travel = Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Due Process, DUI, felony, Firearm, law enforcement, police, Search and Seizure, Washington Court of Appeals, , ,

On the Road: Changing lanes in an intersection may be legal — but it's not necessarily safe – Press Enterprise

Good case. In State v. Jones, The WA Court of Appeals decided a police officer does not have reasonable suspicion to stop a vehicle that crosses the fog line three times in a mile for violating the safe lane travel statute, RCW 46.61.140(1).

Anacortes Police Officer Jacqueline Richter saw Donald Jones driving within the city limits of Anacortes, Washington. As she followed Jones in her patrol car for about a mile, she observed Jones’s vehicle “pass over the fog line approximately an inch” three times, each time “correcting its position with a slow drift.” She stopped Jones and told him that she had stopped his vehicle “due to erratic lane travel.” There were no other vehicles on the roadway at the time. Jones agreed to perform field sobriety tests. There was no indication of intoxication.

Officer Sam King arrived to assist Richter. King saw a rifle in the backseat of Jones’s truck. Jones consented to a vehicle search “for the sole purpose of recovering the rifle.” A records check revealed that Jones did not have a valid driver’s license. In the course of their conversation, Jones told King that he had a felony conviction in Idaho for possession of a controlled substance. The State charged Jones with one count of Unlawful Possession of a Firearm in the Second Degree.

Jones moved to suppress the fruits of the vehicle search. Citing State v. Prado, Jones challenged the lawfulness of the stop. The trial court denied Jones’s motion. At trial he was found guilty. He appealed.

The Court of Appeals held that stopping Jones’s vehicle was unlawful under RCW 46.61.040(1) and State v. Prado. the trial court erred by not suppressing the evidence of the firearm. The Court of Appeals reversed the conviction and remanded the case back to the trial court.

The Court reasoned that a traffic stop is a seizure. The Fourth Amendment to the United States Constitution guaranties against unreasonable searches and seizures, and requires either a warrant or proof that the seizure qualifies under one of the few “‘jealously and carefully drawn'” exceptions to the warrant requirement.

Here, said the Court, there was no evidence of “reasonable suspicion of criminal activity” to support a stop and search of Jones’s vehicle. The State presented no evidence about Officer Richter’s training and experience in identifying impaired drivers. Officer Richter did not testify that she suspected Jones was impaired or that she stopped him for this reason. The State presented no evidence of dangerous driving or any other traffic infraction. Finally, the trial court did not find that Officer Richter stopped Jones because of a reasonable suspicion that he was DUI.

Because the State failed to justify its warrantless seizure of Jones, the trial court should have suppressed the evidence discovered because of that seizure.

My opinion? Good decision. I’m happy that the Court of Appeals is finally supporting its decision in State v. Prado. In that case, a police officer stopped a car that had crossed a lane divider line in an exit lane by approximately two tire widths for one second. The State charged the driver with driving under the influence of an intoxicant. The district court denied Prado’s motion to suppress, and Prado was convicted.  He appealed.

Ultimately, in deciding Prado the Court of Appeals held that “minor incursions over a lane line” do not, by themselves, constitute a sufficient basis for an investigatory stop. Also, “a vehicle crossing over a lane once for one second by two tire widths does not, without more, constitute a traffic violation justifying a stop by a police officer.”

Prado was an excellent decision in 2008. Unfortunately, Prado hasn’t been well-supported by other court decisions. Indeed, in my own practice, judges deciding suppression issues seem to have turned a blind eye to Prado decision. Hopefully, State v. Jones shall reinforce Prado and give it the respect it deserves.

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.