Category Archives: Constitutional Rights

Cloud Storage & Privacy

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Cloud Storage & Privacy. In State v. Harrier, the WA Court of Appeals held that a person holds no privacy interest in  images obtained by an internet cloud storage service provider who then gives the images to law enforcement.

BACKGROUND FACTS

Synchronoss Technologies, Inc. is an internet cloud storage provider that provides cloud based storage for Verizon Wireless customers. The defendant Mr. Harrier had a Verizon account and subscribed to Synchronoss Cloud storage.

Synchronoss ran a cursory search of all stored digital files and found six digital images with hash values matching those of known instances of child pornography. Synchronoss reported this information via CyberTip to the National Center for Missing and Exploited Children (NCMEC) who forwarded the information to local police for investigation.

The police opened and viewed the six image files and confirmed that the images were child pornography. Police then obtained search warrants based on the descriptions of the images and served them on Verizon and Synchronoss. The search warrant directed Synchronoss to provide “all information” held by Synchronoss associated with the suspect telephone number associated with the images.

Police received information from Verizon that confirmed that Harrier was the subscriber/account holder for the suspect telephone number. Synchronoss also gave police a thumb drive containing account data associated with the suspect telephone number.

Law enforcement obtained a search warrant for Harrier’s residence. They seized Harrier’s cell phone. The cell phone was determined to be the same phone associated with the Verizon account and the Synchronoss files that were the basis of the initial search warrant.

Law enforcement interviewed Harrier after advising him of his constitutional rights prior to asking questions. He made incriminating statements. Harrier was later charged with two counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and three counts of second degree possession of depictions of a minor engaged in sexually explicit conduct.

Prior to trial, Harrier filed a 3.6 motion to suppress the evidence against him, and the trial court denied the motion. The parties proceeded to a bench trial. Harrier was found guilty as charged. Harrier appealed on arguments that the police, by opening and viewing the images from NCMEC, exceeded the scope of Synchronoss’ lawful search of the images and thus, the opening and viewing of the images was unlawful, and the trial court erred by denying his motion to suppress.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that Harrier had no privacy interest in the images obtained by Synchronoss and delivered to the police; therefore, the police’s viewing of the images was not a warrantless search.

The Court reasoned that the Fourth Amendment protects a person’s subjective and reasonable expectation of privacy. Also, the WA Constitution in article I, section 7 provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

However, the Court reasoned that if a private affair is not disturbed, then there is no Constitutional violation. Also, the Court rejected Harrier’s arguments the Private Search Doctrine prohibited the police from obtaining contraband:

“The Private Search Doctrine is based on the rationale that an individual’s reasonable expectation of privacy is destroyed when the private actor conducts his search,” said the Court of Appeals. “Our Supreme Court held in Eisfeldt that the private search doctrine is inapplicable under our State Constitution.”

The court also recognized that when a private party hands evidence over to the police, there is no privacy interest in that evidence:

“We know from the hash values that the files Synchronoss found were child pornography and that this information, the images, and the CyberTip are reliable . . . Because a private party conducted the search and the images are contraband, Harrier did not have a privacy interest in them. Thus, the police’s opening and viewing the images from a private party was not unlawful. Accordingly, Harrier’s arguments fail.” ~WA Court of Appeals.

The Court concluded that the trial court did not err by denying Harrier’s motion to suppress and affirmed Harrier’s convictions.

Please contact my office if you, a friend or family member were arrested after police found incriminating evidence from a questionable search of cyber account information. And please review my Legal Guide on Search & Seizure. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

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

Excessive Parking Fines

How a Parking Ticket Impacts a Driver

In Pimentel v. City of Los Angeles, the Ninth Circuit Court of Appeals held that the Eighth Amendment’s Excessive Fines Clause applies to excessive parking fines.

BACKGROUND FACTS

The City of Los Angeles imposes civil fines for parking meter violations. Under an ordinance, if a person parks her car past the allotted time limit, she must pay a $63 fine. And if she fails to pay the fine within 21 days, the City will impose a late-payment penalty $6300. In sum, a person who overstays a parking spot faces a fine of $63 – $181.

Appellant Mr. Pimentel and the other appellants sued the City of Los Angeles under 42 U.S.C. § 1983, asserting that the fines and late payment penalties violate the Eighth Amendment’s Excessive Fines Clause and the California constitutional counterpart.

The case made its way through the lower federal district court. The lower court ordered that the initial parking fine was not grossly disproportionate to the offense and thus survives constitutional scrutiny. The case was appealed to the Ninth Circuit, however, who issued its own opinion below.

COURT’S REASONING & CONCLUSIONS

The Court of Appeals held that although the initial parking fine was not disproportionate to the offense, the the City’s late fee runs afoul of the Excessive Fines Clause.

The Court said the Excessive Fines Clause of the Eighth Amendment limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense. Also, the Court reasoned that the Excessive Fines Clause traces its lineage back to at least the Magna Carta which guaranteed that a free man shall not be fined for a small fault.

“For centuries, authorities abused their power to impose fines against their enemies or to illegitimately raise revenue,” said the Ninth Circuit. “That fear of abuse of power continued to the colonial times. During the founding era, fines were probably the most common form of punishment, and this made a constitutional prohibition on excessive fines all the more important.”

The Court extended the  four-factor analysis found in United States v. Bajakajian to decide whether a fine is “grossly disproportionate” to the offense: (1) the nature and extent of the crime, (2) whether the violations was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused.

The Court reasoned that under the first Bajakajian factor—  the nature and extent of the crime — the plaintiffs were indeed culpable because there was no factual dispute that they violated the parking infraction code for failing to pay for over-time use of a metered space. However, the Ninth Circuit also found the the parking transgressions were small:

“But we also conclude that appellants’ culpability is low because the underlying parking violation is minor. We thus find that the nature and extent of appellants’ violations to be minimal but not de minimis.”

The Court further reasoned that the second Bajakajian factor — whether the violations was related to other illegal activities — was not as helpful to its analysis: “We only note that there is no information in the record showing whether overstaying a parking meter relates to other illegal activities, nor do the parties argue as much.”

Similarly, the Court said that the third Bajakajian factor — whether other penalties may be imposed for the violation — also did not advance its analysis. “Neither party suggests that alternative penalties may be imposed instead of the fine, and the record is devoid of any such suggestion.”

Finally, the Court turned to the fourth Bajakajian factor — the extent of the harm caused by the violation. “The most obvious and simple way to assess this factor is to observe the monetary harm resulting from the violation,” said the Court. Ultimately, it reasoned that while a parking violation was not a serious offense, the fine is not so large, either, and likely deters violations.

With that, the Ninth Circuit held that the City’s initial parking fine of $63 was not grossly disproportional to the underlying offense of overstaying the time at a parking space. Nevertheless, the Court also held that the 100% late fee on the initial fine must be remanded back to the lower district court for the City to justify:

“The government cannot overstep its authority and impose fines on its citizens without paying heed to the limits posed by the Eighth Amendment. Yet in its brief to this court, the City of Los Angeles did not even bother addressing the constitutionality of its late fee. Based on the record, we do not know the City’s justification for setting the late fee at one hundred percent of the initial fine.”

With that, the Ninth Circuit Court of Appeals gave the case back (remanded) to the lower court for a further analysis on this issue.

My opinion? Good decision. At the end of the day, paying a 100% late fee for a parking fine is truly excessive. The case is novel because we don’t see much litigation surrounding the Excessive Fines Clause of the Eighth Amendment. We do know, however, that the Eighth Amendment also encompasses the Cruel and Unusual Punishments Clause, which is the most important and controversial part of the Amendment.

The issues relating to that constitutional amendment are, in some ways, shrouded in mystery. What does it mean for a punishment to be “cruel and unusual”? How do we measure a punishment’s cruelty? And if a punishment is cruel, why should we care whether it is “unusual”?

Again, good decision.

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

Shackling Defendants In Court – Without Reason – Is Unconstitutional.

Court ruling about shackles puts stress on judicial system | Local ...

In State v. Jackson, the WA Supreme Court held that shackling in court without analyzing whether the shackles are necessary violates the defendant’s constitutional rights.

BACKGROUND FACTS

In 2017, Mr. Jackson,  was charged with assault in the second degree, domestic violence, for strangling his fiancée. At every court appearance, Jackson was forced to wear some form of restraints pursuant to jail policy. The trial court did not engage in any individualized determination of whether restraints were necessary for courtroom safety but, instead, filed a consolidated opinion adopting the jail policy for all superior court appearances for all incarcerated defendants.

After a jury found Jackson guilty, he appealed, arguing that his constitutional right to due process was violated when he was forced to wear restraints without an individualized inquiry into their necessity.

The Court of Appeals held that the shackling of Jackson without an individualized inquiry into whether shackles were necessary violated his constitutional rights. However, it also held that this violation was harmless; thus leaving Jackson with a constitutional violation without a remedy.

Both the Prosecutor and Mr. Jackson appealed to the WA Supreme Court. Jackson argued that the Court of Appeals did not apply the constitutional “harmless error test” correctly. The State, on the other hand, cross-petitioned for review of the constitutionality of the use of pretrial restraints.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reviewed the history of defendants wearing pretrial restraints in court:

“The problems in the history of shackling in early America are not limited to the courts and incarcerated individuals . . . The use of shackling as a means of control and oppression, primarily against people of color, has run rampant in the history of this country . . . Shackles and restraints remain an image of the transatlantic slave trade and the systematic abuse and ownership of African persons that has endured long beyond the end of slavery.

Shackles and restraints also represent the forced removal of Native people from their homelands through the Trail of Tears and the slave labor of Native people. We recognize that although these atrocities occurred over a century ago, the systemic control of persons of color remains in society, particularly within the criminal justice system.” ~WA Supreme Court

Next, the Court reasoned that under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution, it is well settled that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances.

That said, the WA Supreme Court also mentioned that the right to be free from restraint is not absolute, and trial court judges are vested with the discretion to give measures that implicate courtroom security, including whether to restrain a defendant in some capacity in order to prevent injury.

Next, the court  identified several factors under State v. Hartzog which help a trial court determine if a defendant needs to be shackled:

“The seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.” ~WA Supreme Court quoting State v. Hartzog

The Court reasoned that a trial court must engage in an individualized inquiry into the use of restraints prior to every court appearance. Furthermore, the State does not meet this burden by simply establishing that no jurors observed the restraints during trial.

“When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary,” said the Court.

With that, the WA Supreme Court reversed the Court of Appeals on harmlessness and remanded for a new trial with instructions that at all stages of court proceedings, the court shall make an individualized inquiry into whether shackles or restraints are necessary.

My opinion? Good decision. The manner in which the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise.

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.

True Threats

P Emojis and Emoticons in Court – The Air Force JAG Corps Reporter

In State v. D.R.C., the WA Court of Appeals held that a 17-year-old girl’s text messages to friends which aired her grievances about her mother after they verbally argued did not constitute “true threats” for purposes of proving Harassment.

BACKGROUND FACTS

The case against 17-year-old juvenile defendant D.R.C. began with a mother-daughter dispute over whether D.R.C. violated house rules by possessing gang-colored clothing. The argument took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut. D.R.C.’s mother responded by removing the door from its hinges.

During the argument with her mother, D.R.C. was on her phone and texting with several friends, indicating she wanted to kill her mother. The texts were vaguely worded and peppered with smiling emojis and the initialism “LOL.”

After removing D.R.C.’s bedroom door, the mother confiscated D.R.C.’s phone and turned to leave the room. As she was leaving, D.R.C.’s mother heard a loud noise. D.R.C. had punched her bedroom wall, leaving a hole in it. D.R.C.’s mother called the police. The police arrived and talked to D.R.C. and her mother, but did not take further action. Later that night, D.R.C.’s mother reviewed D.R.C.’s phone and discovered the text messages.

D.R.C.’s mother shared the text messages with the police. The State charged D.R.C. with felony harassment in juvenile court. The case proceeded to trial. The juvenile court found D.R.C. guilty of harassment.

D.R.C. appealed under arguments that the State failed to meet the additional burden of proving a true threat.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that in order to penalize a defendant for harassment, the State must prove not only the elements of the offense but also that the defendant’s words were not the type of speech protected by the First Amendment.

“A true threat is a serious threat,” said the Court. “It is not an idle statement, a joke, or even a hyperbolic expression of frustration.” The court further reasoned that when analyzing whether a statement is a “true threat” it looks carefully at the context of the inflammatory statement in order to avoid infringement on the precious right to free speech.

“The focus of the true threat analysis is on the speaker. But we do not look at the speaker’s actual intent . . . Instead, the test is objective . . . We ask whether a reasonable person in the speaker’s position would foresee their statement would be interpreted as a serious expression of intent to cause physical harm.” ~WA Court of Appeals

Next, the Court of Appeals examined whether D.R.C.’s friends thought the threats were “true threats.” It reasoned that D.R.C.’s past conversation with one friend supports D.R.C.’s testimony that she tended to use hyperbolic language with her friends. “In the prior text between D.R.C. and Lexy, D.R.C. accompanied her statements about harming or killing a mutual acquaintance with ”Lmfao”; the face with tears of joy emoji, ; a shrug emoji, ; a smiling face with horns emoji, ; a zany face emoji, ; and a heart emoji,” said the Court of Appeals. “The combination of the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.”

“The language used by D.R.C. was distastefully violent, but it was not as disturbing as some of the past statements held to fall within First Amendment protections.” ~WA Court of Appeals

The Court of Appeals reversed D.R.C.’s conviction – but not without warning:

“While we rule in D.R.C.’s favor, our disposition should not be interpreted as approval of D.R.C.’s choice of language . . . We, like the trial court, find nothing funny in the texts. Nevertheless, the First Amendment protects all sorts of speech, even when the sentiment is hurtful or vile.” ~WA Court of Appeals

My opinion? I’ve gained jury acquittals in similar cases. In proving harassment charges, the State must prove that a reasonable person would have felt the threats were true threats under the circumstances. That’s a high burden to prove. Many people – indeed, most people – are guilty of making threats during or after an emotional situation. However, simply uttering threats does not logically mean that the threat is intended to be carried out out.

Please contact my office if you, a friend or family member are charged with Harassment. Hiring an experienced criminal defense attorney like myself is the first and best step towards justice.

Reasonable Suspicion & 911 Calls

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In United States v. Vandergroen, the 9th Circuit Court of Appeals held that the police’s search of a suspicious person was reasonable under the circumstances when bar patrons called 911 minutes before to report the man had a pistol on him.

BACKGROUND FACTS

Late on a Saturday evening of February 17, 2018, a worker at a bar in California called 911 to report that three patrons had seen a man in the area with a pistol on him. In response to this call, the police stopped the man as he drove away, discovered a pistol in his car, and placed him under arrest. The man, Mr.  Vandergroen, argued a Rule 12 motion to suppress the evidence. The lower federal court denied the motion. Vandergroen was subsequently convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), which is a federal criminal conviction.

On appeal, Vandergroen now argues that the 911 call should never have led to his stop in the first place because it did not generate reasonable suspicion, and that the evidence of the pistol should therefore have been excluded.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals disagreed with Mr. Vandergroen. It affirmed the lower court’s denial of Vandergroen’s motion to suppress and upheld his conviction.

The Court began by saying that under the Fourth Amendment, an officer may conduct a brief investigative stop only where s/he has a particularized and objective basis for suspecting the particular person stopped of criminal activity, commonly referred to as “reasonable suspicion.”

The Court further elaborated that while a 911 call may generate reasonable suspicion, it can only do so when, under the totality-of-the circumstances, it possesses two features. First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop.

Finally, the Court identified a number of factors that demonstrate the reliability of a tip. These facts include (1) whether the tipper is known, rather than anonymous; (2) whether the tipper reveals the basis of his knowledge; (3) whether the tipper provides detailed predictive information indicating insider knowledge, id.; whether the caller uses a 911 number rather than a non-emergency tip line; and (4) whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge.

With the above in mind, the Court of Appeals delved into its analysis.

“The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion,” said the Court. It reasoned that first, the statements by an independent witness were undoubtedly reliable. “Witness #2 provided his name and employment position, making him a known, and therefore more reliable, witness,” said the Court.

Second, the Court of Appeals reasoned that the statements by the bar’s patrons were also reliable. “Although the patrons remained anonymous during the call, which generally cuts against reliability, their statements exhibited sufficient indicia of reliability to overcome this shortcoming,” said the Court. Finally, the Court reasoned that the reported activity — possessing a concealed weapon  was presumptively unlawful in California and was ongoing at the time of the stop.

In conclusion the Court of Appeals held that the 911 call generated reasonable suspicion justifying the stop and the lower court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop. His criminal conviction was upheld.

My opinion? Mind you, this is a federal opinion. Under Washington law, however,  a bare report that someone is in possession of a firearm does not provide reasonable suspicion for an investigative stop. This is because Washington is both an open carry state and liberally grants concealed weapons permits. United States v. Brown.

In Washington, under RCW 9.41.300(1)(d), a stop may have been permissible in this case if the individual with the pistol had been in that portion of the lounge classified by the state liquor and cannabis board as off-limits to persons under twenty-one years of age. That’s because it is unlawful for any person to enter a bar with a firearm.

Please read my Legal Guide on Search and Seizure and contact my office if you, a friend or family member face criminal charges involving a questionable search or seizure of evidence. Hiring a competent and experienced defense attorney is the first and best step towards justice.

Suspended License Pullover

What If I Lose My License But Continue to Drive (Driving with a ...

In  Kansas v. Glover, the U.S. Supreme Court held that the stop of a vehicle is lawful after running the vehicle’s license plate and discovering that the registered owner’s driver’s license was suspended.

BACKGROUND FACTS

A Kansas police officer on traffic patrol performed a computer DOL check and stopped Defendant’s car for the sole reason that the car’s registered owner had a suspended license. The Defendant turned out to be the registered owner, and was arrested.

The Kansas Supreme Court held that the stop violated the Fourth Amendment. It reasoned that without further suspicion that the current driver was, in fact, the registered owner of the car, a stop solely premised on information that the registered owner had a suspended license violated the Fourth Amendment.

Kansas petitioned the U.S. Supreme Court for review, which was granted. Justice Clarence Thomas delivered the opinion of the Court in its 8-1 decision.

LEGAL ISSUE

Whether the Fourth Amendment allows police to stop a car when the only reason police have for the stop is that the car’s registered owner has a suspended license.

COURT’S ANALYSIS

The U.S. Supreme Court reasoned that an officer may initiate a brief investigative traffic stop when he has “a particularized and objective basis” to suspect legal wrongdoing.

“Here, the deputy’s common-sense inference that the owner of a vehicle was likely the vehicle’s driver provided more than reasonable suspicion to initiate the stop,” said the Court. “That inference is not made unreasonable merely because a vehicle’s driver is not always its registered owner or because Glover had a revoked license.”

The Court further reasoned that empirical studies demonstrate that drivers with suspended or revoked licenses frequently continue to drive. Also, the Court reasoned that Officers, like jurors, may rely on probabilities in the reasonable suspicion context.

“Moreover, the deputy here did more than that: He combined facts obtained from a database and commonsense judgments to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity.” ~Justice Thomas, U.S. Supreme Court

My opinion?  This decision is consistent with existing Washington precedent.  Under State v. McKinney, a vehicle may be stopped based upon DOL records which indicate that the driver’s license of the  registered owner of the vehicle is suspended.  The officer need not affirmatively verify that the driver’s appearance matches that of the registered owner before making the stop, but the Terry stop must end as soon as the  officer determines that the operator of the vehicle cannot be the registered owner.

Please contact my office if you, a friend or family member experience a questionable traffic stop from police. Hiring an experienced and effective criminal defense attorney is the first and best step toward justice.

Victim’s Motive To Testify

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

DUI & Opinion Evidence

Nunez trial Day 3: El Paso cops, arson investigator, medical ...

In City of Seattle v. Levesque, the WA Court of Appeals held that a police officer, who is not a Drug Recognition Expert (DRE), may not give an opinion on whether the defendant was guilty of DUI.

BACKGROUND FACTS

On April 29, 2015, the Seattle Police Department dispatched Officers Hinson and Officer Coe to the scene of an automobile accident involving two vehicles. Levesque had failed to stop his vehicle prior to hitting the vehicle in front of him. The accident caused moderate to severe damage, and Levesque’s vehicle could not be driven.

Officer Hinson placed Levesque under arrest for DUI.

Although Officer Hinson had received training in field sobriety tests (FSTS), he did not perform any FSTs at the scene because of Levesque’s symptoms, the absence of any alcohol smell, and the location of the accident and corresponding impracticability of FSTs. Officer Hinson did not perform a horizontal gaze nystagmus (HGN) test for signs of impairment. Officer Hinson, who is not DRE certified, testified that he attempted to contact a DRE by radio, but no DRE was available.

For those who don’t know, a DRE  is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol.

After arresting Levesque, Officer Hinson transported Levesque to Harborview Medical Center, where he had his blood drawn. The drug analysis results showed that Levesque’s blood contained 0.14 milligrams per liter (mg/L) of amphetamine and 0.55 mg/L of methamphetamine. The City charged Levesque with DUI.

Before trial, Levesque moved in limine to exclude any testifying officer’s opinion on ultimate issues. The trial court granted the motion but ruled that an officer could state “in his opinion, based upon the totality of the circumstances, that Levesque was impaired.” The trial court also granted Levesque’s additional motion to exclude officers as experts but declared that an officer—testifying as a lay witness—could “certainly testify to what he objectively observed during the investigation.”

Officer Hinson testified that through his training and experience Levesque showed signs as possibly being impaired by a stimulant. When asked to opine as to whether Levesque was impaired by drugs, Officer Hinson testified that his opinion was that Levesque was definitely impaired at the time of the accident.” Levesque objected to Officer Hinson’s testimony and requested a mistrial outside the presence of the jury following a lunch recess. The court overruled Levesque’s objections.

Also at trial, Levesque offered an alternative theory for his perceived impairment. Levesque’s defense theory was that he was prescribed medication for injuries which explain his behavior. In support of this defense, Levesque presented testimony from his physician about treatment and prescriptions that she gave Levesque prior to the accident, her diagnoses, and Levesque’s symptoms.

The jury convicted Levesque of driving while under the influence. Levesque appealed his conviction to the superior court, which reversed based on Officer Hinson’s opinion testimony. The city of Seattle (City) appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that opinion testimony must be deemed admissible by the trial court before it is offered. Opinion testimony may be admissible under ER 701 as lay testimony or ER 702 as expert testimony. However, when opinion testimony that embraces an ultimate issue is inadmissible in a criminal trial, the testimony may constitute an impermissible opinion on guilt. Furthermore, impermissible opinion testimony regarding the defendant’s guilt may be reversible error.

Here, the opinion testimony at issue consists of Officer Hinson’s statements that Levesque showed signs and symptoms of being impaired by a specific category of drug – i.e., a CNS stimulant – and that Levesque was “definitely impaired” at the time of the accident.

“We conclude that because Officer Hinson was not a drug recognition expert (DRE) and lacked otherwise sufficient training and experience, he was not qualified to opine that Levesque showed signs and symptoms consistent with having consumed a particular category of drug.” ~WA Court of Appeals

Furthermore, the Court of Appeals reasoned that because the officer’s opinion that Levesque was “definitely impaired” constituted an impermissible opinion of Levesque’s guilt, the trial court’s admission of that testimony violated Levesque’s constitutional right to have the jury determine an ultimate issue. Finally, because Levesque presented an alternative theory for his behavior, the City did not establish beyond a reasonable doubt that any reasonable jury would have convicted Levesque. “Therefore, we affirm the superior court’s reversal of Levesque’s conviction,” said the Court of Appeals.

My opinion? Excellent decision. And excellent work on behalf of his defense attorney. They did a great job of making a record for not only trying to suppress the officer’s opinion evidence during motions in limine, but also for properly objecting at the right time and preserving the issue for appeal when the officer unlawfully offered the opinion testimony.

Under Evidence Rule 704, witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions. This is because testimony from witnesses on these issues is not probative and is, in fact, prejudicial to criminal defendants. Good opinion.

Please contact my office if you, a friend or family member are charged with DUI. Hiring a competent and experienced criminal defense attorney who is well-versed on pretrial motions and the rules of evidence is the first and best step toward justice.

Entrapment & Sex Crimes

Online sting was 'clear case of entrapment:' lawyer | CTV News

In State v. Johnson, the WA Court of Appeals held that a Defendant cannot claim Entrapment for numerous attempted sex offenses by responding to a fake Craigslist add in the “Casual Encounters” section created by police officers conducting an online sting operation.

BACKGROUND FACTS

Law enforcement created a posting in the Craigslist casual encounters section. Mr. Johnson responded to the ad. His communications with the (as-yet-unknown) police led Mr. Johnson to believe the add was posted by a 13-year-old female named “Brandi” who was home alone. Mr. Johnson was instructed to drive to a minimart and await further instructions via text. Johnson drove to the designated minimart. “Brandi” then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.

Johnson was charged with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During trial, he requested the Entrapment Defense via a jury instruction. However, the trial judge denied Johnson the defense and jury instruction. The jury found him guilty of all charges.

Johnson appealed, claiming ineffective assistance of counsel and that the trial judge erred by denying the Entrapment defense.

COURT’S ANALYSIS & CONCLUSIONS

The court explained that in order to prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. Importantly, as a matter of law, the Court also stated the following:

“Entrapment is not a defense if law enforcement merely afforded the actor an opportunity
to commit a crime.”

“Here, Johnson points to no evidence to support an entrapment instruction,” reasoned the Court. Here, law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. This add, however, was not entrapment on the part of police. The add merely presented an opportunity for Mr. Johnson to incriminate himself and commit a crime:

“Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because ‘Brandi’ was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When ‘Brandi’ suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.”

The court also rejected Johnson’s argument that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children.

“But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense,” said the Court. Instead, explained he Court, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.

The Court of Appeals concluded that because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, the trial court did not err by refusing to instruct the jury on entrapment. The court also denied Mr. Johnson’s claims of ineffective assistance of counsel.

My opinion? Entrapment is a very difficult defense to prove under these circumstances. Law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.

Please contact my office if you, a friend or family member face sex offenses and Entrapment could be a substantive defense. Hiring an experienced criminal defense attorney is the first and best step towards justice.