Category Archives: Constitutional Rights

Shackled in Court

Bellingham, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Jail, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Legcuffs - Wikipedia

In State v. Lundstrom, the WA Court of Appeals held that a trial court’s failure to state why a jailed defendant must wear shackles, handcuffs and other restraints to court violates a defendant’s due process rights.

BACKGROUND FACTS

The State charged Lundstrom with two counts of unlawful possession of a controlled
substance. At a pretrial hearing, Lundstrom appeared in restraints. Before the proceeding ended, defense counsel took exception to Mr. Lundstrom appearing in court with 5-point restraint shackles.

The trial court did not respond to defense counsel’s statement or concerns.

Lundstrom subsequently filed a motion objecting to the restraints and requesting removal of the shackles. The motion included a certified statement from defense counsel, which stated that he had made a public disclosure request with the Clallam County Sheriff’s Office (CCSO) for their policies and discovered that CCSO policy 15.106.1 required all inmates to be brought to court in full restraints (waist chain, cuffs, and leg irons) for their first appearance. There is no record showing whether Lundstrom noted the motion for hearing before the trial court, whether the trial court held a hearing on the motion, or whether the trial court ruled on the motion.

Ultimately, however, Lundstrom pleaded guilty to two counts of unlawful possession of a controlled substance. On appeal, Lundstrom argued that his pretrial restraint violated his due process rights because the trial court failed to make an individualized determination on the necessity of the restraints.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals agreed with Mr. Lundstrom.

It reasoned that under the  WA Constitution, the accused shall have the right to appear and defend in person. That right includes the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Additionally, under State v. Damon, the Washington Supreme Court has long recognized that a prisoner is entitled to be brought into the presence of the court free from restraints.

“Restraints are disfavored because they may interfere with important constitutional rights, including the presumption of innocence, privilege of testifying in one’s own behalf, and right to consult with counsel during trial.”

“But a defendant’s right to be in court free from restraints is not limitless,” said the Court of Appeals. “The right may yield to courtroom safety, security, and decorum. A defendant may be restrained if necessary to prevent injury, disorderly conduct, or escape.”

Furthermore, the trial court abused its discretion and committed constitutional error when it failed to address the issue of Lundstrom’s pretrial restraint. By failing to do so and allowing Lundstrom to be restrained, the trial court failed to exercise its discretion and effectively deferred the decision to the jail’s policy.

As a result, the trial court abused its discretion and committed constitutional error by failing to make an individualized inquiry into the necessity for pretrial restraints when Lundstrom took exception to the use of pretrial restraints. Therefore, Lundstrom’s due process rights were violated by his pretrial restraints.

Interestingly, Lundstrom was not trying to overturn his conviction or seek any other remedy due to the violation of his due process rights. He only wanted the Court of Appeals to address his claim as a matter of continuing and substantial public interest.

“Generally, we do not consider claims that are moot or present only abstract questions,” said the Court of Appeals. However, we have the discretion to decide an issue if the question is one of continuing and substantial public interest.”

My opinion? Good decision. It’s harsh to see defendants in handcuffs and chains. Indeed, it’s unconstitutional. And for the most part, shackling defendants at court hearings is unnecessary unless there’s reason to believe the defendant may escape or harm others.

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.

Stricter Immigration Enforcement Will Not Reduce Crime

Bellingham Defense Attorney, Constitutional Rights, Immigration, Immigration & Customs Enforcement (ICE), Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

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Interesting article released from The Hill by authors Nazgol Ghandnoosh and Alex Nowrasteh claims that recent research shows that immigrants—regardless of legal status—commit property and violent crimes at lower rates than native-born citizens.

This research, conducted independently by The Sentencing Project and the Cato Institute, used different methods but arrived at the same conclusion: Immigrants are less crime-prone than native-born citizens.

Overall, non-citizens are actually slightly underrepresented in prisons, comprising six percent of the prison population compared to their seven percent of the total U.S. population.

“Effectively addressing violent and property crime requires approaching the problem with both eyes open and without fear of the facts. Law enforcement has scarce resources. Sending them on wild goose chases to round up undocumented immigrants will only deter those individuals and those close to them from reporting crimes and cooperating with investigations.”

Nazgol Ghandnoosh is a research analyst at The Sentencing Project and the co-author of the report Immigration and Public Safety. Alex Nowrasteh is an immigration policy analyst at the Cato Institute and a co-author of the report Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin.

My opinion? This certainly is a highly politicized and hot-button topic. Hopefully, we’ll all arrive at solutions which do not unlawfully violate people’s constitutional rights, regardless of their immigration status.

Please contact my office if you, a friend or family member are charged with a crime; regardless of immigration status. Hiring a knowledgeable, effective and experienced criminal defense attorney is the first step toward getting justice in our courts.

Racial Profiling of Latinos in LA County

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Fourth Amendment, law enforcement, police, Pretext, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Excellent article by Joel Rubin and Ben Poston of the LA Times examines a disturbing trend. Apparently, more than two-thirds of the drivers pulled over by the Domestic Highway Enforcement Team were Latino, according to a Times analysis of Sheriff’s Department data. And sheriff’s deputies searched the vehicles of more than 3,500 drivers who turned out to have no drugs or other illegal items, the analysis found. The overwhelming majority of those were Latino.

Several of the team’s big drug busts have been dismissed in federal court as the credibility of some deputies came under fire and judges ruled that deputies violated the rights of motorists by conducting unconstitutional searches.

The Times analyzed data from every traffic stop recorded by the team from 2012 through the end of last year — more than 9,000 stops in all — and reviewed records from hundreds of court cases. Among its findings:

  • Latino drivers accounted for 69% of the deputies’ stops. Officers from the California Highway Patrol, mainly policing traffic violations on the same section of freeway, pulled over nearly 378,000 motorists during the same period; 40% of them were Latino.
  • Two-thirds of Latinos who were pulled over by the Sheriff’s Department team had their vehicles searched, while cars belonging to all other drivers were searched less than half the time.
  • Three-quarters of the team’s searches came after deputies asked motorists for consent rather than having evidence of criminal behavior. Several legal scholars said such a high rate of requests for consent is concerning because people typically feel pressured to allow a search or are unaware they can refuse.
  • Though Latinos were much more likely to be searched, deputies found drugs or other illegal items in their vehicles at a rate that was not significantly higher than that of black or white drivers.

From top to bottom: L.A. County Sheriff’s Deputies search a motorist’s suitcase. Also a deputy uses a device for measuring density to search for hidden drugs and clutches some tools he uses to perform vehicle searches. (Myung J. Chun / Los Angeles Times)

The L.A. County Sheriff’s Department said that racial profiling plays no role in the deputies’ work and that they base their stops only on a person’s driving and other impartial factors.

In December, Sheriff Jim McDonnell heaped praise on the team, ticking off its accomplishments in a lengthy statement. “The importance of this mission cannot be overstated,” the sheriff said.

But several legal and law enforcement experts said the department’s own records strongly suggest the deputies are violating the civil rights of Latinos by racially profiling, whether intentionally or not.

“When they say, ‘We’re getting all these drugs out of here,’ they are not taking into account the cost,” said David Harris, a law professor at the University of Pittsburgh who studies racial profiling by police. “They are sacrificing their own legitimacy in the community as a whole and the Latino community in particular.”

Kimberly Fuentes, research director for the California League of United Latin American Citizens, described The Times’ findings as “extremely disturbing and troubling” and said the advocacy organization would demand a meeting with Sheriff’s Department officials.

“These findings risk tarnishing any trust between the Sheriff’s Department and the Latino community,” Fuentes said.

My opinion? A pullover and search of your vehicle is unlawful if the reason for the pullover/search is racial profiling. Racial profiling is the practice of targeting individuals for police or security detention based on their race or ethnicity in the belief that certain minority groups are more likely to engage in unlawful behavior. Examples of racial profiling by federal, state, and local law enforcement agencies are illustrated in legal settlements and data collected by governmental agencies and private groups, suggesting that minorities are disproportionately the subject of routine traffic stops and other security-related practices.

Also, pretextual searches are also unlawful. Pretext is an excuse to do something or say something that is not accurate. Pretexts may be based on a half-truth or developed in the context of a misleading fabrication. Pretexts have been used to conceal the true purpose or rationale behind actions and words. A pretextual search and arrest by law enforcement officers is one carried out for illegal purposes such as to conduct an unjustified search and seizure.

Please contact my office if you, a friend or family member was charged with a crime after being racially profiled and/or pulled over for unlawful pretext. I provide zealous representation to all defendants facing these circumstances.

Jury Bias

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Federal Crimes & Prosecutions, Identity Theft, Jury Selection, Jury Trial, Search Warrant, Sixth Amendment, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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In United States v. Kecheczian, the Ninth Circuit Court of Appeals decided a trial court mistakenly  allowed a juror to decide an aggravated identity theft and possession of unauthorized access devices case, when the juror admitted during jury selection that she had her social security number previously stolen and she was unable to explicitly state that she could put her personal biases aside.

BACKGROUND FACTS

After receiving a tip that Mr. Kechedzian was linked to a fugitive operating a large credit card fraud ring, federal agents conducted a trash pull from Kechedzian’s residence. In his trash, they found two counterfeit credit cards and, based on this, the agents obtained a search warrant. The resulting search of Kechedzian’s residence and cars uncovered two USB drives containing 1,451 stolen credit card numbers in text files, a Bluetooth-enabled “skimming device” commonly used to steal credit card information from gas station pumps, and several cards with stolen data re-encoded on the magnetic strips. Bank records revealed that many of the stolen card numbers had been used fraudulently at gas stations and other retail establishments across the United States.

Kechedzian was charged with two counts of possession of 15 or more Unauthorized Access Devices and two counts of Aggravated Identity Theft. The case proceeded to trial. At the beginning of jury selection, the federal district court judge read a general statement of the case, laying out the charges against Kechedzian. The judge then asked the following:

“Does anyone feel, just based on the charges in this case, based on what this case is about, that they could not be fair and impartial to both sides? Does anyone feel that way at this point in time?”

Juror # 3 raised her hand. From there, she informed the court she was a past victim of identity fraud. Furthermore, she did not know whether she could put aside her biases. Later, at sidebar, defense counsel sought to have Juror # 3 excused for cause. However, the judge denied the motion.

“I think at the end of the day she confirmed or committed to the principles of the presumption of innocence and burden of proof,” said the judge. “I would deny the motion.” Consequently, Juror # 3 sat on Kechedzian’s jury.

The jury ultimately returned a guilty verdict, and Kechedzian was sentenced to 65 months in prison followed by three years of supervised release. The district court also ordered $114,134.76 in restitution. Kechedzian timely appealed.

COURT’S ANALYSIS & DECISION

The Court of Appeals began by saying the Sixth Amendment guarantees criminal defendants a verdict by an impartial jury, and the bias or prejudice of even a single juror is enough to violate that guarantee. Accordingly, the presence of a biased juror cannot be harmless. The error requires a new trial without a showing of actual prejudice.  And any doubts regarding bias must be resolved against the juror. One important mechanism for ensuring impartiality is voir dire, which enables the parties to probe potential jurors for prejudice. After voir dire, counsel may challenge a prospective juror for cause, and a partial or biased juror should be removed if there is a showing of either implied or actual bias.

“Here, Kechedzian alleges bias under both theories,” said the Court.

Actual Bias Analysis

It explained that actual bias is the more common ground for excusing jurors for cause. Actual bias is the existence of a state of mind that leads to an inference that the person will not act with entire impartiality. Actual bias involves an inability to act impartially or a refusal to weigh the evidence properly It can be revealed through a juror’s express answers during voir dire, but it can also be revealed by circumstantial evidence during questioning.

The Court said that in contrast, implied bias is presumed only in extraordinary cases. “In analyzing implied bias, we look to whether an average person in the position of the juror in controversy would be prejudiced.”

Implied Bias Analysis

This Court described “implied bias” as applying to those extreme situations where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.  Furthermore, the implied bias inquiry is an objective one. Even if a juror states or believes that she can be impartial, the court may find implied bias based on the circumstances.

The Court noted that here, although Juror # 3 was previously a victim of identity theft, this is not the type of “extreme” situation where we find implied bias. “Thus, we focus our analysis on the actual bias inquiry,” said the Court.

The Court reasoned that Juror #3 was ultimately asked if she could set aside her feelings, and act impartially and fairly to both sides of the case. She responded: “I believe so, yes.” The Court said that statement—“I believe so, yes”—appears somewhat equivocal. However, none of Juror #3’s equivocal statements could be understood as affirmative statements of impartiality. The Court reasoned that here, Juror #3 explicitly noted that she was unsure if she could put her personal biases aside.

“A juror can understand the presumption of innocence and burden of proof, yet still let personal prejudice infect her ability to be impartial.”

“When a juror is unable to state that she will serve fairly and impartially despite being asked repeatedly for such assurances, we can have no confidence that the juror will lay aside her biases or her prejudicial personal experiences and render a fair and impartial verdict,” said the Court. “Because this is precisely what occurred here, the district court was obligated to excuse Juror #3 for cause under an actual bias theory.”

Accordingly, the Court of Appeals reversed and remanded for a new trial.

My opinion? Good decision. In my trial experience, potential jurors who have suffered as victims of crime tend to be pro-prosecution. A potential juror who does not know if they can be fair or impartial should be excused for cause. Period.

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.

Inadmissible & Irrelevant Evidence

Bellingham Defense Attorney, Constitutional Rights, ER 404(B), Evidence, felony, Homicide & Manslaughter, Jury Trial, Offer of Proof, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Burnam, the WA Court of Appeals held that the trial court correctly excluded evidence that the woman the defendant killed had four years earlier dated a man accused of murder and that she had hid the murder weapon.

BACKGROUND FACTS

Mr. Burnam was charged with first degree murder or, in the alternative, second degree murder and interfering with the reporting of domestic violence. As trial approached, Mr. Burnam wanted to testify in support of his self-defense claim. He also wanted to testify that the victim Ms. Sweet had been involved in a prior homicide.

Apparently, four years earlier, Ms. Sweet dated a man accused of murder and she had hid the murder weapon, which was a firearm. Sometime after the homicide, Ms. Sweet briefly gave the firearm away and then attempted to get it back. When law enforcement questioned her, she was evasive and misleading. She was charged and convicted of first degree rendering criminal assistance by means of concealing, altering, or destroying the gun.

Mr. Burnam claimed that this was character evidence and asked the court to analyze its admissibility under ER 404(b). Under this evidence rule, evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent

Mr. Burnam made a lengthy offer of proof in support of his motion. He argued that the evidence would help establish the reasonableness of his fear of serious harm or death during his struggle with Ms. Sweet. He repeatedly asserted the jury should know that Ms. Sweet was involved with a homicide or capable of being involved with a person who had committed a homicide.

Despite defense counsel’s offer of proof, the court nevertheless excluded all evidence of the homicide case that Ms. Sweet was involved in.

At trial, Mr. Burnam testified he responded in self-defense to Ms. Sweet. Despite his testimony, the jury found Mr. Burnam guilty of first degree murder and interfering with the reporting of domestic violence. Mr. Burnam appealed on arguments that the court should have admitted evidence that Ms. Sweet was involved in a murder from four years ago.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that both the United States Constitution and the Washington Constitution guarantee the right to present testimony in one’s defense. Furthermore, a defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence. However, defendants can present only relevant evidence and have no constitutional right to present irrelevant evidence. If relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial.

Admissibility of Self-Defense Evidence.

The Court further reasoned that in considering a claim of self-defense, the jury must take into account all of the facts and circumstances known to the defendant.

“Because the vital question is the reasonableness of the defendant’s apprehension of danger, the jury must stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act,” said the Court. “Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.”

Moreover, evidence of a victim’s violent actions may be admissible to show the defendant’s state of mind at the time of the crime and to indicate whether he had reason to fear bodily harm. Thus, a defendant may, in addition to the character evidence, show specific acts of the victim which are not too remote and of which the defendant had knowledge at the time of the crime with which he is charged. Evidence of specific acts may be admissible for the limited purpose of showing the defendant had a reasonable apprehension of danger.

Finally, the court reasoned that an offer of proof should (1) inform the trial court of the legal theory under which the offered evidence is admissible, (2) inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility, and (3) create an adequate record for appellate review.

The Court of Appelas concluded that Mr. Burnam’s offer of proof failed to inform the trial judge of the specific nature of the offered evidence.

“Mr. Burnam’s offer of proof was lengthy but repeatedly vague on the specific nature of the offered evidence.”

The Court further concluded that Ms. Sweet merely pleaded guilty to rendering criminal assistance by disposing of a firearm used previously in a homicide. Nevertheless, rendering criminal assistance is a nonviolent felony.

“The mere fact that Ms. Sweet dated a man accused of murder and hid the murder weapon does not strongly imply that Ms. Sweet was violent. The prejudicial effect of excluding this questionable evidence is minimal. We conclude the trial court did not violate Mr. Burnam’s constitutional right to present a defense when it excluded this evidence.”

Consequently, the Court of Appeals upheld the trial court’s decision to exclude evidence that Ms. Sweet was indirectly involved in a homicide from four years earlier.

Please contact my office if you, a friend or family member are involved in cases involving assault or self-defense. Generally speaking, evidence that the victim had prior bad acts and/or had violent tendencies is admissible. However, court must undergo a balancing test under the evidence rules to determine if the evidence being offered is relevant, probative and/or unfairly prejudicial. This case was fairly straightforward in determining that the dead victim’s prior conviction for a non-violent crime was irrelevant.

Pretext Traffic Stop

Bellingham Defense Attorney, Constitutional Rights, Fourth Amendment, law enforcement, No Contact Order, police, Pretext, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Hendricks, the WA Court of Appeals held that a traffic stop for Failure to Transfer Title was not unlawfully pretextual because the stop was initiated based upon running license plates as vehicles passed him and the deputy did not recognize the vehicle’s occupants until after initiating the traffic stop.

BACKGROUND FACTS

Ms. Ciulla was named as a protected party in a no contact order issued against
Hendricks. On September 8, 2016, the State charged Hendricks with Violation of a No-Contact Order, alleging that he knowingly had contact with Ciulla. Hendricks filed a CrR 3.6 motion to suppress evidence seized from the traffic stop leading to his arrest, asserting that there was no lawful basis for the traffic stop.

At the CrR 3.6 hearing, Clallam County Sheriff’s Deputy Federline testified that he
was on duty on the evening of September 7, 2016 when he saw a Mazda pickup truck and ran the license plate of the vehicle. Upon his check of the truck’s license plate, Deputy Federline found that more than 15 days had passed since ownership of the vehicle had changed, but the title had not been transferred.

When the truck passed, Deputy Federline also saw that the truck’s back license plate was partially obscured by a trailer hitch. Deputy Federline conducted a traffic stop of the truck. When Deputy Federline made contact with the vehicle’s occupants, he recognized Ciulla in the front passenger seat and Hendricks in the back seat. Deputy Federline arrested Hendricks. Following this testimony, Hendricks argued that Deputy Federline lacked authority to stop the truck based either on a failure to timely transfer title or on an obscured license plate.

The trial court denied Hendricks’s motion to suppress. Following the trial court’s denial of his CrR 3.6 suppression motion, Hendricks waived his right to a jury trial, and the matter proceeded to bench trial on a stipulated record. The trial court found Hendricks guilty of violation of no contact order. The trial court also found that Hendricks committed his offense against a family or household member. Hendricks appealed from his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution generally prohibit searches and seizures absent a warrant or a recognized exception to the warrant requirement. One such exception to the warrant requirement is an investigative stop as set forth in Terry v. Ohio, a landmark search and seizure case which applies to traffic violations. Also, a law enforcement officer may conduct a warrantless traffic stop if the officer has a reasonable and articulable suspicion that a traffic violation has occurred or is occurring.

The court rejected Hendricks’s arguments that the failure to comply with RCW 46.12.650(5)(a)’s requirement of transferring title within 15 days of delivery of a vehicle does not constitute a traffic infraction under RCW 46.63.020 because the failure to timely transfer title is not a parking, standing, stopping, or pedestrian offense.

“The plain language of RCW 46.63.020 shows that the legislature intended to treat the failure to timely register a vehicle’s title as a traffic infraction and, thus, the trial court correctly concluded that Deputy Federline had an articulable suspicion justifying his stop of the vehicle in which Hendricks was riding as a passenger.”

Next, the Court of Appeals addressed whether the stop was unlawfully pretextual.

Pretextual Traffic Stops

The Court reasoned that Article I, section 7 of the Washington Constitution prohibits pretextual traffic stops. State v. Ladson, 138 Wn.2d at 358. A pretextual traffic stop occurs when a law enforcement officer  stops a vehicle in order to conduct a speculative criminal investigation unrelated to enforcement of the traffic code. Ladson, 138 Wn.2d at 349. Whether a given stop is pretextual depends on the totality of the circumstances, “including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.” Ladson, 138 Wn.2d at 359.

I t further reasoned that a traffic stop is not pretextual even where the officer has an additional motivation for conducting the stop apart from a suspected traffic violation, so long as the officer’s purported motive in investigating a suspected traffic violation was an actual, conscious, and independent reason for the stop. State v.
Arreola, 176 Wn.2d 284, 299-300, 290 P.3d 983 (2012).

“Hendricks suggests that Deputy Federline had suspected the vehicle’s occupants of being
involved in drug activity and used the failure to timely transfer title as a pretext to investigate the vehicle and its occupants for drug related offenses,” said the Court. “This is pure speculation without any support in the record.”

The Court reasoned that Deputy Federline was the only witness at the CrR 3.6 hearing. Furthermore, the deputy testified that he was parked at an intersection running the license plates of southbound traveling vehicles when he saw the vehicle at issue. Deputy Federline began to initiate his traffic stop after finding that the title to the vehicle at issue was not timely transferred following a change in ownership. Finally, Deputy Federline recognized Hendricks and Ciulla only after initiating the traffic stop and contacting the driver of the vehicle.

“In short, Hendricks fails to identify any evidence in the record that would have supported a claim that Deputy Federline’s traffic stop was a pretext to investigate a crime unrelated to a suspected traffic infraction.”

Consequently, the Court held that because the record lacked of any evidence supporting a claim that Deputy Federline conducted a pretextual traffic stop, Hendricks can show neither deficient performance nor resulting prejudice from defense counsel’s decision to decline raising the issue at the CrR 3.6 hearing.  Accordingly, the Court of Appeals affirmed Hendrick’s conviction.

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.

Praying While Arrested

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Disorderly Conduct, First Amendment, Fourth Amendment, Obstructing, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

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In Sause v. Bauer, the United States Supreme Court held that a police officer may lawfully prevent a person from praying at a particular time and place, such as when a suspect who is under arrest seeks to delay the trip to the jail by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.

BACKGROUND FACTS

Petitioner Mary Ann Sause filed this civil rights action under U. S. C. §1983, and named the Louisburg, Kansas, police department as the defendant/respondent in the lawsuit.

The centerpiece of Ms. Sause’s complaint was the allegation that two of the town’s police officers visited her apartment in response to a noise complaint, gained admittance to her apartment, and then proceeded to engage in a course of strange and abusive conduct, before citing her for disorderly conduct and interfering with law enforcement.

At one point, Ms. Sause knelt and began to pray. However, one of the officers ordered her to stop. She also claimed that officers refused to investigate her complaint that she was assaulted by residents of her apartment complex, and that officers threatened to issue a citation if she reported this to another police department. In addition, she alleged that the police chief failed to follow up on a promise to investigate the officers’ conduct.

Ms. Sause’s complaint asserted a violation of her First Amendment right to the free exercise of religion and her Fourth Amendment right to be free of any unreasonable search or seizure. The defendants moved to dismiss the complaint for failure to state a claim on which relief may be granted, arguing that the defendants were entitled to qualified immunity. The Federal District Court granted the motion to dismiss her lawsuit.

Ms. Sause appealed, however, the Court of Appeals for the Tenth Circuit affirmed the decision of the District Court, concluding that the officers were entitled to qualified immunity.

COURT’S ANALYSIS AND CONCLUSIONS

“There can be no doubt that the First Amendment protects the right to pray,” said the Court. “Prayer unquestionably constitutes the “exercise” of religion.” The Supreme Court also reasoned that at the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. “For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.”

Furthermore, the Court also reasoned that when an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

The court ruled that in this case, it was is unclear whether the police officers were in Ms. Sause’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful. The Court found that Ms. Sause’s complaint contains no express allegations on these matters. “Nor does her complaint state what, if anything, the officers wanted her to do at the time when she was allegedly told to stop praying. Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.”

Despite agreeing with the Government on this issue, the Supreme Court nevertheless reversed the judgment of the Tenth Circuit which dismissed Ms. Sause’s case and remanded her case back to federal court for further proceedings consistent with this opinion.

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

Celebrate the Fourth of July Responsibly

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, felony, Knock & Talk, law enforcement, marijuana, misdemeanor, police, Probable Cause, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

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When celebrating holidays, many people gather with friends and family, decorating their homes and enjoying time together. However, some holiday celebrations often include consuming substances like illegal drugs and alcohol.

In 2016, Americans spent more than $1 billion on cold beverages for their Fourth of July celebrations. That amount was higher than what was spent on burgers and hotdogs, combined. According to CNBC, the Fourth of July is the country’s largest beer-drinking holiday. The popular holiday also surpassed New Year’s as the most dangerous holiday of the year, especially when it comes to traveling on the roadways. According to the Los Angeles Times, there was an average of 127 fatal car crashes each year on July 4 between 2008 and 2012. Of those who died, 41 percent of people had elevated blood alcohol levels.

So how did the day that was meant to celebrate America’s birthday become a day where people choose to drink? The Fourth of July is a federal holiday, which means that most businesses are closed and the employees of those businesses get to enjoy the day off. Jeffrey Spring, a spokesman for the Automobile Club of Southern California, told the Los Angeles Times that it’s more than just celebrating a day off of work. “They tend to try to cram a lot into these weekends and that’s where they get into trouble,” Spring said. In other words, a paid holiday is taken to new heights due to the excitement of having a free day to themselves.

Some advice? Please remember that beneath all the celebration, the Fourth of July is more than just about alcoholic drinks and setting off fireworks. In 1776, the thirteen American colonies declared themselves independent from the British Empire, thus the United States of America was born. Also known as Independence Day, the day celebrates the birth of the country. It can be commemorated in speeches presented by politicians, celebrities hosting private events, or military personnel saluting the United States at noon on the holiday by shooting off a rifle.

The Fourth of July is important to celebrate for its historical significance. This holiday is a time to remind people not only of the hard work and dedication it took to become the country that the United States is today, but to encourage people to live their lives to their fullest potential.

Don’t let the Fourth of July become a catalyst for illegal behavior.

However, please call my office if you, a friend or family member consume intoxicants this Fourth of July and later find yourselves facing criminal charges. It’s imperative to hire responsive and experienced defense counsel when contacted by law enforcement.

Driving While Black: Some Statistics

Bellingham Defense Attorney, Constitutional Rights, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Recent studies and statistics from American cities show disturbing upward trends in racial profiling.

Kansas City Police Disproportionately Ticket Black Drivers

Black drivers in Kansas City, Missouri received 60% of traffic tickets written by the Kansas City Police Department in 2017 even though they comprise only 30% of the city’s population, reports The Kansas City Star. Ken Novak, a professor of criminal justice and criminology at the University of Missouri-Kansas City, attributes this disparity to the concentration of officers in high-crime neighborhoods which have more non-white drivers.

Stacy Shaw, an attorney who has represented defendants in over 8,000 traffic-related cases since 2011, says the majority of black drivers’ tickets are economically based, such as for failure to pay insurance, licensing, or tag fees — not for “poor driver crimes.” To address these problems, she suggests the state create a sliding scale for car registration fees and that the city improve public transit.

Residents in Missouri are not alone in being financially burdened by fees and fear of ticketing: 41 states and the District of Columbia suspend or revoke driver’s licenses for failure to pay traffic tickets or to appear in court to respond to tickets. Nationally over 7 million people may have had their driver’s licenses suspended for failure to pay court or administrative debt, according to a Washington Post analysis. In North Carolina, civil rights groups filed a federal lawsuit challenging the constitutionality of the North Carolina Division of Motor Vehicles’ practice of revoking the driver’s licenses of people who cannot pay for traffic tickets.

“Driving While Black” in Missouri has Worsened Since Ferguson

Four years after the fatal police shooting of Michael Brown in Ferguson, MO and subsequent protests, black drivers in Missouri are 85% more likely to be pulled over than white drivers, reports Mother Jones and St. Louis Public Radio. This is the largest disparity since the Attorney General’s office began analyzing traffic-stop data in 2000.

The report also uncovered significant disparity in how drivers were treated after being pulled over in 2017: Black drivers who were stopped were 51% more likely than white drivers to be searched and Latino drivers were 45% more likely than whites to be searched. Among those searched, white drivers were more often found with contraband.

“We have to learn how to stop people fairly, how to treat people fairly, and the racial profiling numbers as they stand, they’re egregious. They’re horrible,” said Sgt. Heather Taylor, president of the Ethical Society of Police. At a news conference in response to the report’s findings, the Coalition for Fair Policing called for updated policies to make changes to consent searches, better data collection, and limiting “hot-spot policing.”

Please contact my office if you, a friend or family member were racially profiled and now face criminal charges. Hiring competent defense counsel is the first and best step toward reaching justice.

Cell Site Location Information

Bellingham Defense Attorney, Cell-Site Location Information (CSLI), Constitutional Rights, Federal Crimes & Prosecutions, Fourth Amendment, Hobbs Act, Probable Cause, Robbery, Skagit County Criminal Defense, Stored Communications Act, Technology, Theft, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

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In Carpenter v. United States, the United States Supreme Court held that the government generally needs a search warrant to collect troves of location data about the customers of cellphone companies.

BACKGROUND FACTS

In April 2011, police arrested four men suspected of committing a string of armed robberies at Radio Shack and T-Mobile stores in and around Detroit. One of the men confessed that the group had robbed nine different stores in Michigan and Ohio between December 2010 and March 2011, supported by a shifting ensemble of 15 other men who served as getaway drivers and lookouts. The robber who confessed to the crimes gave the FBI his own cellphone number and the numbers of other participants; the FBI then reviewed his call records to identify still more numbers that he had called around the time of the robberies.

In May and June 2011, the FBI applied for three federal court orders from magistrate judges to obtain “transactional records” from various wireless carriers for 16 different phone numbers. As part of those applications, the FBI recited that these records included “all subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones from December 1, 2010 to present,” as well as “cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls.”

The FBI also stated that these records would “provide evidence that Timothy Carpenter and other known and unknown individuals” had violated the Hobbs Act, 18 U.S.C. § 1951. The magistrates granted the applications pursuant to the Stored Communications Act, under which the government may require the disclosure of certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”

The government later charged Carpenter with six counts of aiding and abetting robbery that affected interstate commerce, in violation of the Hobbs Act, and aiding and abetting the use or carriage of a firearm during a federal crime of violence. Before trial, Carpenter and Sanders moved to suppress the government’s cell-site evidence on Fourth Amendment grounds, arguing that the records could be seized only with a warrant supported by probable cause. The district court denied the motion.

At trial, seven accomplices testified that Carpenter organized most of the robberies and
often supplied the guns. They also testified that Carpenter and his half-brother Sanders had served as lookouts during the robberies. According to these witnesses, Carpenter typically waited in a stolen car across the street from the targeted store. At his signal, the robbers entered the store, brandished their guns, herded customers and employees to the back, and ordered the employees to fill the robbers’ bags with new smartphones. After each robbery, the team met nearby to dispose of the guns and getaway vehicle and to sell the stolen phones.

Also at trial, the Government admitted cell-site location information (CSLI) provided by Carpenter’s wireless carriers. The State’s expert witness created maps showing that Carpenter’s phone was within a half-mile to two miles of the location of each of the robberies around the time the robberies happened. Hess used MetroPCS call-detail records, for example, to show that Carpenter was within that proximity of a Detroit Radio Shack that was robbed around 10:35 a.m. on December 13, 2010. Specifically, MetroPCS records showed that at 10:24 a.m. Carpenter’s phone received a call that lasted about four minutes. At the start and end of the call, Carpenter’s phone drew its signal from MetroPCS tower 173, sectors 1 and 2, located southwest of the store and whose signals point northeast.

After the robbery, Carpenter placed an eight-minute call originating at tower 145, sector 3, located northeast of the store, its signal pointing southwest; when the call ended, Carpenter’s phone was receiving its signal from tower 164, sector 1, alongside Interstate 94, north of the Radio Shack. The expert witness provided similar analysis
concerning the locations of Carpenter’s phone at the time of a December 18, 2010 robbery in Detroit; a March 4, 2011 robbery in Warren, Ohio; and an April 5, 2011 robbery in Detroit. See Carpenter App’x at 12-15.

The jury convicted Carpenter on all of the Hobbs Act counts and convicted him on all but one of the gun counts. Carpenter’s convictions subjected him to four mandatory-minimum prison sentences of 25 years, each to be served consecutively, leaving him with a Sentencing Guidelines range of 1,395 to 1,428 months’ prison. The district court sentenced Carpenter to 1,395 months’ imprisonment. He appealed his convictions and sentences.

COURT’S ANALYSIS AND CONCLUSIONS

Justice Roberts delivered the majority opinion of the Supreme Court.

Preliminarily, the Court held that the Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search. It reasoned that Fourth Amendment protects not only property interests but certain expectations of privacy as well.

“Thus, when an individual seeks to preserve something as private, and his expectation of privacy is one that society is prepared to recognize as reasonable, official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause,” said the Court.

“Tracking a person’s past movements through CSLI partakes of many of the qualities of GPS monitoring considered in Jones—it is detailed, encyclopedic, and effortlessly compiled.”

The Court further reasoned that cell phone location information is not truly “shared” as the term is normally understood. “First, cell phones and the services they provide are such a pervasive and insistent part of daily life, that carrying one is indispensable to participation in modern society,” said the Court. “Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.”

Finally, the Court reasoned that the Government did not obtain a warrant supported by probable cause before acquiring Carpenter’s cell-site records. It acquired those records pursuant to a court order under the Stored Communications Act, which required the Government to show reasonable grounds for believing that the records were relevant and material to an ongoing investigation. “That showing falls well short of the probable cause required for a warrant,” said the Court. “Consequently, an order issued under §2703(d) is not a permissible mechanism for accessing historical cell-site records. Not all orders compelling the production of documents will require a showing of probable cause.”

Justice Ginsberg, Breyer, Sotomayor, and Kagan joined. Justice Kennedy filed a dissenting opinion, in which Justice Thomas and Alito joined. Justice Gorsuch also filed a dissenting opinion.

It’s imperative to hire competent defense counsel willing to argue motions to suppress information that the Government creatively – and sometimes illegally – obtains. Please contact my office if you, a friend or family member are arrested for crimes involving searches of cell phones and/or cell phone records.