Category Archives: Drug Offenses

Proposed Law Evicts Suspected Meth Users From Hotels

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Legislation, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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Interesting article by Marilyn Napier of the Skagit Valley Herald reported that a new state law proposed by the Skagit County Prosecuting Attorney will allow local governments to evict residents from certain buildings contaminated by methamphetamine, even without evidence of manufacturing. The new law takes effect on July 23, 2017.

State House Bill 1757 was created by the problems that arose at Burlington’s Sterling Motor Inn. Apparently, the hotel was found to have widespread high levels of methamphetamine contamination. As a result, the City of Burlington wanted residents of the motel to evacuate because the level of contamination was considered unsafe. Although the residents, some of whom had lived at the motel for years, left voluntarily, the city and Skagit County did not have the legal authority to evict them.

Because of the Clandestine Drug Lab law, the Skagit County Public Health Department was unable to evict the residents because the law required that there be evidence of drug manufacturing.

THE PROPONENTS.

Skagit County Prosecuting Attorney Rich Weyrich and the Washington Association of Prosecuting Attorneys wrote the bill, which was sponsored by Rep. Dave Hayes, R-Camano Island, and was passed by both the state House and state Senate in mid-April.

“This takes away the idea that you have to have evidence of manufacturing meth. Now you just have to show that there is meth residue present,” Weyrich said. Gov. Jay Inslee signed the bill April 25.

Burlington Mayor Steve Sexton said he doesn’t think the Sterling Motor Inn incident is going to be the last time the city deals with a contaminated property.

“I think that (the law) is what it takes for Skagit County to do the job they should do in situations like that,” he said. “This is what the county said they needed.”

A BLIGHT IN THE COMMUNITY.

Apparently, the state health department reported that about 60 percent of the rooms did not have fire safety measures, such as working smoke detectors. Violations also included rodent infestation in the laundry room, storage shed and the electrical panel room.

Beyond the failed health inspection, the motel had been the center of about 200 calls to police in 2015, a number that had continued to increase since 2009. According to police, officers had been called for weapon offenses, domestic violence, drug deals, prostitution, burglary and assault. Harrison added the law is good news for the public.

My opinion? This law is questionably unconstitutional. Although governments can pass laws for public safety reasons, they cannot make laws which violate people’s constitutional rights. Here, an “automatic eviction” lacking due process – or based on evidence which was obtained through unlawful search and seizure – might end up patently violating people’s individual rights. We’ll see what happens.

For more information on Search and Seizure, please refer to my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And 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.

Pretrial Custody Held Unlawful

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Detention, Drug Offenses, Due Process, Evidence, felony, Jail, Pretrial Release, Probable Cause, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , ,

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In Manuel v. Joliet, the U.S. Supreme Court held that a person’s pretrial detention for alleged crimes can violate the Fourth Amendment if the judge’s determination of probable cause was based solely on fabricated evidence.

BACKGROUND FACTS

During a traffic stop, police officers in Joliet, Illinois, searched the defendant Elijah Manuel and found a vitamin bottle containing pills. Suspecting the pills to be illegal drugs, the officers conducted a field test, which came back negative for any controlled substance. Still, they arrested Manuel and took him to the police station.

There, an evidence technician tested the pills and got the same negative result, but claimed in his report that one of the pills tested “positive for the probable presence of ecstasy.” An arresting officer also reported that, based on his “training and experience,” he “knew the pills to be ecstasy.” On the basis of those false statements, another officer filed a sworn complaint charging Manuel with unlawful possession of a controlled substance.

Pretrial Detention

Relying exclusively on that complaint, a county court judge found probable cause to detain Manuel pending trial. While Manuel was in jail, the Illinois police laboratory tested the seized pills and reported that they contained no controlled substances. But Manuel remained in custody, spending a total of 48 days in pretrial detention.

For those who don’t know, pretrial detention refers to detaining of an accused person in a criminal case before the trial has taken place, either because of a failure to post bail or due to denial of release under a pre-trial detention statute.

Civil Rights Lawsuit

At any rate, more than two years after his arrest, but less than two years after his criminal case was dismissed, Manuel filed a civil rights lawsuit pursuant to 42 U. S. C. §1983 against Joliet and several of its police officers (collectively, the City), alleging that his arrest and detention violated his Fourth Amendment rights.

The Federal District Court dismissed Manuel’s suit, holding, (1) that the applicable two-year statute of limitations barred his unlawful arrest claim, and, (2) that under binding legal precedent, pretrial detention following the start of legal process  could not give rise to a Fourth Amendment claim. Manuel appealed the dismissal of his unlawful detention claim. however, the Seventh Circuit Court of Appeals affirmed the ruling. Manuel appealed to the U.S. Supreme Court.

ANALYSIS & CONCLUSION

The U.S. Supreme Court decided that Mr. Manuel may indeed challenge his pretrial detention on Fourth Amendment grounds even though he was in custody. It explained that the Fourth Amendment prohibits government officials from detaining a person without probable cause. Furthermore, where legal process has gone forward, but has done nothing to satisfy the probable-cause requirement, it cannot extinguish a detainee’s Fourth Amendment claim.

“That was the case here,” said the Court. “Because the judge’s determination of probable cause was based solely on fabricated evidence, it did not expunge Manuel’s Fourth Amendment claim.” Consequently, Mr. Manuel proved a valid a Fourth Amendment claim when he sought relief for his arrest and pretrial detention.

Furthermore, the Court reasoned that the Seventh Circuit Court of Appeals should have determined the claim’s accrual date, unless it finds that the City has previously waived its timeliness argument. In doing so, the court should look to the common law of torts for guidance while also closely attending to the values and purposes of the constitutional right at issue.

With that, the U.S. Supreme Court reversed and remanded.

My opinion? Good decision. Pretrial release is a huge issue in criminal law.  In Washington, both CrR 3.2 and CrRLJ 3.2.1 govern the release of people accused of crimes. The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference.

The judge or judicial officer decides whether to release a defendant on personal recognizance or unsecured appearance bond, release a defendant on a condition or combination of conditions, temporarily detain a defendant, or detain a defendant according to procedures outlined in these Standards.

Ultimately, the law favors the release of defendants pending adjudication of charges. Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support.

Here, Mr. Manuel was held in jail for 48 days when police lacked probable cause on any charges. That’s awful. Fortunately justice was served when his case was dismissed and that the U.S. Supreme Court upheld his lawsuit.

For more information on getting released from jail, please read my Legal Guide titled, Making Bail. And please contact my office for a free consultation if you, a friend or family member find themselves in jail.

State v. Froehrich: Unlawful Inventory Search

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, Dismissal, Drug Offenses, Evidence, felony, Inventory Searches, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , ,

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In State v. Froehlich, the WA Court of Appeals Division II upheld the suppression of methampetamine found in a vehicle because the defendant’s car was unlawfully searched.

BACKGROUND

Ms. Froehlich was driving her car. She collided with a pickup truck waiting at a stop sign. After the collision, the car came to rest on the right shoulder of the highway. It was not obstructing traffic. A Washington State Patrol Trooper arrived at the scene. By this time, Froehlich was seated in the pickup truck that she had hit.

Ms. Froehlich eventually left the scene in an ambulance after talking with police at the scene. One trooper followed her to the hospital to do sobriety testing, and she was not arrested. However, the trooper at the scene of the accident decided to impound her car. At the scene, he performed an inventory search of the vehicle which also included the search of Froerich’s purse which she left inside the car. He found methamphetamine.

Ms. Froehrich was charged with Unlawful Possession of a Controlled Substance With Intent to Manufacture or Deliver. Froehlich filed a motion to suppress the methamphetamine, arguing in part that the Trooper had no reason to impound the car and failed to consider reasonable alternatives to impoundment. The trial court granted the motion, suppressed the evidence and ultimately dismissed the charges. The State appealed.

ANALYSIS

Ultimately, the Court of Appeals agreed with the lower court that the impoundment was not lawful and therefore the search was not lawful because (1) under the community caretaking exception, the State did not prove that the impounding officer considered whether Froehlich, her spouse, or her friends were available to remove the vehicle; and (2) even though there was statutory authority for impoundment, the State failed to prove that the impounding officer considered all reasonable alternatives.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless an exceptions to the warrant requirement applies. One exception to the warrant requirement is a non-investigatory, good faith inventory search of an impounded vehicle. Law enforcement may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a traffic offense for which the legislature has expressly authorized impoundment. Even if one of these reasons exists, however, an officer may impound a vehicle only if there are no reasonable alternatives.

Here, the Trooper’s impoundment of Froehlich’s car was not lawful under the community caretaking function because there were reasonable alternatives to impoundment. Here, the Trooper never asked Froehlich about arranging to have someone else remove the car as an alternative to impoundment, and the State presented no evidence that the Trooper considered Froehlich’s ability to arrange for the car’s removal.

CONCLUSION

Because Richardson unlawfully impounded the vehicle, his seizure of methamphetamine from Froehlich’s purse was unlawful.

My opinion? Good decision. Very simple, straightforward and correct analysis. As usual, I’m extremely impressed with Division II’s handling of search and seizure issues, especially when it comes to vehicle searches. Here, it’s clear that police officers cannot go about impounding people’s vehicles and searching through belongings when reasonable legal alternatives exist.

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.

The “Drug House” Statute

Bellingham Defense Attorney, DEA, Drug House, Drug Offenses, Evidence, felony, Knapstad Motion, Methamphetamine, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Menard, the WA Court of Appeals Division II reversed the lower court dismissal of charges of  Maintaining a Drug Dwelling under RCW 69.50.402.

BACKGROUND

The defendant Rodney Menard owned and lived at his home in Yakima. Menard lived at the home since he was 5 years old. He rented rooms to five individuals, occasionally received methamphetamine from tenants as rent payment, consumed twenty dollars’ worth of methamphetamine per day, and possessed drug pipes. Menard knew his tenants used methamphetamine, but denied knowledge of the use of his home for methamphetamine sales.

The Drug Enforcement Agency (DEA) received complaints of drug traffic from Menard’s home. On July 15, 2015, a DEA confidential informant purchased approximately a gram of methamphetamine at Menard’s home. On July 23, 2015, the DEA Task Force conducted a narcotics search. The front door was unlocked. Rodney Menard and thirteen other individuals were present when law enforcement officers entered the residence. In a basement bedroom, a lady rested on a small couch with a bag of methamphetamine next to her pillow.

Law enforcement officers spoke with Rodney Menard and other residents of the home. When asked if people who visit take drugs, Menard answered: “most people do.” Two renters informed the officers that 10 to 15 different people came daily to the house to use drugs. Menard claimed he unsuccessfully tried to end the heavy traffic at the house. Officers confiscated drug paraphernalia and 25.5 grams of drugs inside the home.

MOTION TO DISMISS

Menard was charged with Maintaining a Drug Dwelling under RCW 69.50.402. He filed a Knapstad motion under arguments that (1) his conduct is unlawful only if the drug activity constituted the residence’s major purpose, and (2) selling drugs was not the primary purpose of the residence. The trial court granted Menard’s motion to dismiss. The State appealed.

LAW & ANALYSIS

The Court of Appeals reasoned that under Washington law, a defendant may present a pretrial motion to dismiss a charge when the State lacks ability to prove all of the elements of the crime. RCW 69.50.402(1), known colloquially as the “Drug House” Statute, declares:

It is unlawful for any person: ( f) Knowingly to keep or maintain any … dwelling, building … or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

Here, Menard argued that he may be found guilty of maintaining a drug dwelling only if he maintains the home for the principal purpose of facilitating the use of controlled substances. However, the Court of Appeals disagreed.

The court reasoned that to convict under the “Drug House” Statute, the evidence must demonstrate more than a single isolated incident of illegal drug activity in order to prove that the defendant “maintains” the premises for keeping or selling a controlled substance.

The Court further reasoned that sporadic or isolated incidents of drug use are not enough to prove criminal conduct. Here, however, there was substantial evidence that people other than Menard used drugs in the house. Apparently, 10 to 15 people each day entered the home to use drugs. When police searched the house, fourteen people, some of whom admitted to use of methamphetamine, occupied the premises. One resident rested methamphetamine near her pillow. Officers found drug devices scattered throughout the home. When asked if people who visit take drugs, Menard answered: “most people do.”

With that, the Court of Appeals reversed the trial court’s dismissal of charges.

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.

DUI: Men vs. Women

Bellingham Defense Attorney, Blood Test, Deferred Prosecution, Department of Licensing, Driving While License Suspended/Revoked, Drug Offenses, Drug Recognition Expert, DUI, Implied Consent, law enforcement, marijuana, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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Great news article from the Bellingham Herald discusses the physiological differences in alcohol impairment levels experienced between men and women.

In Who Gets Arrested More for DUI: Men or Women?,  author Doug Dahl states that over the past couple decades, alcohol-impaired driving has steadily been decreasing, however, the reduction in impaired driving doesn’t apply to women. Dahl is the Target Zero Manager for the Whatcom County Traffic Safety Task Force.

Apparently, in a recent 10-year period, DUI arrests for men decreased by 7.5 percent while DUI arrests for women increased by 28.8 percent.

“According to the CDC, the average weight of an American man is 196 pounds, while the average American woman weighs 166 pounds,” said Dahl.  “Also, because of differences in enzymes, hormones and body fat percentages between men and women, women generally metabolize alcohol at a slower rate.” Simply put, says Dahl, women get drunk faster and stay drunk longer than men:

“To be clear, both of our imaginary people in this example shouldn’t drive. A BAC of .06 will cause impairment. It’s a big enough concern that legislators in some states, including Washington, have proposed reducing the legal limit to .05.”

Mr. Dahl further states that the level of impairment between a BAC of .06 and .09 is significant. According to a study of impaired driving crashes, a driver with a BAC of .06 is about 1.6 times more likely to cause a crash than a sober driver. For a driver with a BAC of .09, that jumps up to 3.5 times more likely. “Don’t judge your own impairment based on how someone else handles the same amount of alcohol, and always have a plan for a safe ride home before going out for drinks,” says Dahl.

Regardless of your gender, please contact my office if you, a friend or relative faces charges of DUI. These charges are serious, threaten careers and can significantly limit one’s driving privileges.

Lower .08 to .05?

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Drug Offenses, DUI, Implied Consent, Legislation, marijuana, National Highway Traffic Safety Administration, Skagit County Criminal Defense, Washington State Patrol, Whatcom County Criminal Defense, , ,

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Interesting article from Heather Bosch of KING 5 news reports that Washington state lawmakers are considering lowering the legal limit for driving under intoxication (DUI) from .08 to .05.

“The research shows impairment begins with the first drink,” said Representative John Lovick, D-44th District. “And I believe this after being a state trooper for 31 years.” Lovick said he based his legislation, House Bill 1874, on recommendations from the National Transportation Safety Board.

According to Bosche, however, the American Beverage Institute opposes the bill and similar legislation being proposed in Hawaii and Utah. The industry group claims only a small percentage of deadly car crashes are caused by drivers with a blood alcohol concentration between .05 and .08, and that a 120-pound woman could reach .05 with just little more than one drink. A 150-pound man could reach it after two.

“The move would target responsible and moderate social drinkers while ignoring the hardcore drunk drivers who pose the greatest threat to safety,” said American Beverage Institute Managing Director Sarah Longwell. In short, Longwell says what’s needed is better enforcement of current laws: “We have to focus on the real problem and not be distracted by feel-good legislation that criminalizes perfectly responsible behavior,” said Longwell.

Representative John Lovick agrees that current laws could be better enforced, but says lowering the alcohol limit to .05 would be “a great first step in letting the public know that we are serious about keeping people who drive drunk, off the streets.”

Bosche reports that a public hearing before the House Transportation Committee will be held Tuesday. The bill already cleared the House Public Safety committee, but not without controversy.

“There will be a few ‘no’ votes on this side of the aisle,” Representative Dave Hayes (R-10th District) said during a recent hearing. “My personal viewpoint on this is just the fact that I don’t believe it’s necessary to reduce the blood alcohol level, based on testimony and my own personal experience in processing DUIs.” Hayes is a sergeant with the Snohomish County Sheriff’s Office.  Lovick is the former Snohomish County Sheriff.

The National Transportation Safety Board has said that if every state lowered the legal blood alcohol limit to .05, it would save 1,000 lives every year.

Interestingly, Mothers Against Drunk Driving (MADD) does not support the measure, calling it a “waste of time” because most people who are under .08 can pass field sobriety tests.

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

State Senate Passes Bill Making Fourth DUI a Felony.

Bellingham, Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Diminished Capacity, Drug Court, Drug Offenses, Drug Recognition Expert, DUI, felony, First Time Offender Waiver, I-502, Ignition Interlock Device, Implied Consent, Jail, Legislation, marijuana, misdemeanor, Persistent Offender, Prison, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

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.

Trump v. Marijuana Legalization

Bellingham Defense Attorney, Drug Offenses, I-502, Legislation, marijuana, Skagit County Criminal Defense, Trump Administration, Whatcom County Criminal Defense, , ,

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Interesting news from Sadie Gurman of the Associated Press discusses Washington State’s Position challenging the Trump administration’s stance against recreational marijuana.

Officials in Washington state, where recreational marijuana is legal, vow to fight any federal crackdown on marijuana after White House spokesman Sean Spicer vowed to increase enforcement of anti-pot laws. Apparently, President Donald Trump does not oppose medical marijuana, Spicer added, but “that’s very different than recreational use, which is something the Department of Justice will be further looking into.”

In response, Bob Ferguson, attorney general in Washington state, said the following : “We will resist any efforts to thwart the will of the voters in Washington,” Ferguson said Thursday.

Trump’s enforcement of federal laws against marijuana steps away from marijuana policy under the Obama administration, which said in a 2013 memo that it would not intervene in states’ marijuana laws as long as they keep the drug from crossing state lines and away from children and drug cartels.

Eight states and Washington, D.C., have legalized marijuana for recreational use.

“Our state’s efforts to regulate the sale of marijuana are succeeding,” they wrote in the letter, which was released Thursday. “A few years ago, the illegal trafficking of marijuana lined the pockets of criminals everywhere. Now, in our state, illegal trafficking activity is being displaced by a closely regulated marijuana industry that pays hundreds of millions of dollars in taxes. This frees up significant law enforcement resources to protect our communities in other, more pressing ways.”

Spicer’s comments came the same day a Quinnipiac poll said 59 percent of Americans think marijuana should be legal and 71 percent would oppose a federal crackdown. Also, three presidents over the last 20 years have each concluded that the limited resources of the Justice Department are best spent pursuing large drug cartels, not individual users of marijuana.

Nevada state Senate Majority Leader Aaron Ford said in a statement Thursday that meddling in recreational pot laws would be federal overreach and harm state coffers that fund education.

My opinion? I’m surprised Mr. Trump doesn’t see the financial benefits of legalizing marijuana for recreational use. In Washington state, sales at licensed pot shops now average nearly $4.4 million per day — with little evidence of any negative societal effects. That’s close to $1 billion in sales so far for the fiscal year that began last July, some $184 million of which is state tax revenue. Trump is a business man. If the facts are true, then why not allow states to regulate the issue within their borders? Better yet, why not legalize marijuana on the federal level?

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.

The Right to Hope for Jury Nullification

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Ineffective Assistance, Jury Nullification, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

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Interesting article by Ilya Shapiro of the Cato Institute discusses whether jury nullification could aid a defendant who is facing deportation in lieu of receiving bad legal advice.

According to Ms. Shapiro, defendant Jae Lee came to the United States legally as a child but never became a citizen. In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported. The lawyer was wrong, unfortunately, because the conviction made Lee subject to deportation.

When Lee learned of this mistake, he asked the court to vacate his plea so he could instead face trial, arguing that his counsel’s assistance was ineffective. The court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.

The U.S. Court of Appeals for the Sixth Circuit agreed with the law court’s ruling that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.

For those who don’t know, jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

According to Shapiro, Mr. Lee is now taking the matter at the United States Supreme Court, which has agreed to hear his argument, which Cato is supporting with this amicus brief.

The Supreme Court must now protect the right to pursue Mr. Lee’s potentially risky trial strategy. Although it may not be wise for Mr. Lee to seek acquittal by jury nullification, he should also have the right to decide whether the risk is worth facing as against the certainty of deportation. According to Shapiro, “It is not up to courts to pick which strategy is best for criminal defendants to follow, but judges should protect the right to choose a jury trial even when they might not make the same choice under the same circumstances.” The Supreme Court hears argument in Lee v. United States on March 28, 2017.

My opinion? This is a very relevant, timely, progressive and news-worthy development. The new administration’s goals to deport criminal immigrants puts a lot of pressure on our courts to enforce these policies.

Ultimately, I predict an increase in post-conviction Motions to Withdraw guilty pleas based on Ineffective Assistance of Counsel under Padilla v. Kentucky, a 2010 United States Supreme Court case which held  that defense attorneys must inform their clients whether his plea carries a risk of deportation.

please  contact my office if you, family or friends are not U.S. citizens, yet face possible deportation for entering past guilty pleas which were ill-advised by defense counsel. Deportation is a terrible consequence for a prior attorney’s ineffective assistance of counsel.

Overbroad Parolee Searches

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In State v. Livingston, the WA Court of Appeals Division II held that evidence collected during a warrantless search of the defendant’s vehicle following the defendant’s arrest on a D.O.C. warrant is only admissible if there is a nexus between the community custody violation and the searched property.

On May 29, 2014, DOC Officer Thomas Grabski observed a person, later identified as Darian Livingston, who he recognized as having an outstanding DOC arrest warrant; Livingston was washing a vehicle alone at a car wash. Officer Grabski called for assistance, and two more officers arrived to assist him.

When the additional officers arrived, Livingston was talking with a person on a motorcycle. The person on the motorcycle drove away when the officers approached. Livingston was the only person near the vehicle. After confirming Livingston’s identity and the warrant, the officers arrested Livingston.

The officers then asked Livingston about the vehicle he had been washing. He said it belonged to his girlfriend who had gone to a nearby store, but he later admitted that his girlfriend was in Seattle and could not pick up the vehicle.

Livingston also admitted that he regularly drove the vehicle and that he had placed the key on the motorcycle when he first saw the officers. At the time of his arrest, Livingston was on active DOC probation. The DOC warrant issued in his name said there was “reasonable cause to believe Mr. Livingston] violated a condition of community custody.

DOC Officers Grabski and Joshua Boyd conducted a “compliance search” of the vehicle. When they conducted the search of the vehicle, the officers did not have any information about the nature of the violation that triggered the issuance of the DOC warrant.

Inside the vehicle, the officers found mail and other documents with Livingston’s name on them, a single pill, and a prescription bottle containing eight pills. In the vehicle’s trunk, the officers found a black backpack containing scented oils, a loaded .40 caliber handgun, a box of ammunition, and more mail addressed to Livingston. During booking, Livingston revealed that he was also carrying a baggie of cocaine on his person.

The State charged Livingston with first degree unlawful possession of a firearm (count I), unlawful possession of a controlled substance with intent to deliver (cocaine) (count II), bail jumping (count III), unlawful possession of a controlled substance (oxycodone) (count IV), and unlawful possession of a controlled substance (hydrocodone/dihydrocodeinone) (count V). Before trial, Livingston moved to suppress the evidence discovered during the vehicle search. The judge denied Livingston’s motion. He appealed.

Livingston argued that the trial court erred in deciding that the vehicle search was lawful under RCW 9.94A.631(1) because the officers had a reasonable belief that he had violated a community custody condition or sentencing requirement. Instead, he asked the Court of Appeals to follow State v. Jardinez and hold that to justify such a search, the property searched must relate to the violation that the community custody officer (CCO) believed had occurred.

First, the Court of Appeals reasoned that both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution prohibit warrantless searches unless an exception exists. Washington law recognizes, however, that probationers and parolees have a diminished right of privacy that permits warrantless searches based on reasonable cause to believe that a violation of probation has occurred. This reduced expectation of privacy for parolees is recognized in RCW 9.94A.631(1), which states,

If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a [CCO] may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Second, the Court reasoned that pursuant to State v. Jardinez, there must be a nexus between the violation and the searched property. In Jardinez, the defendant’s parole officer searched his iPhone for no reason and found evidence linking Mr. Jardinez to criminal behavior. He was charged and convicted. On his appeal, the Court of Appeals examined the following official comment from the Sentencing Guidelines Commission (Commission) on RCW 9.94A.631(1):

“The Commission intends that [CCOs] exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the [CCO] upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the [CCO] believes to have occurred.”

Noting that Washington courts “have repeatedly relied on the Commission’s comments as indicia of the legislature’s intent,” Division Three concluded that the italicized portion of this comment “demands a nexus between the searched property and the alleged crime.” Following Jardinez, the Court of Appeals held that the trial court erred when it failed to consider whether there was a nexus between the violation and the searched property.

With that, the Court affirmed Mr. Livingston’s bail jumping conviction, count III, and his unlawful possession of a controlled substance conviction charged as count II. However, the court reversed the order denying Livingston’s motion to suppress the evidence discovered in the vehicle search and remanded Livingston’s case back to the trial court for further proceedings consistent with this opinion.

My opinion? Good decision. I’ve discussed Jardinez in another post, and found that opinion compelling as well. Excellent use of prior precedents and stare decisis.

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.