Category Archives: Drug Offenses

Rodriguez v. United States: Nonconsensual Dog Sniff of Car Held Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Rodriguez, the United States Supreme Court held that absent reasonable suspicion, police extending a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

In summary, the Supreme Court ruled that (1) the 4th Amendment does Fourth Amendment does not tolerate a dog sniff conducted after completion of a traffic stop, (2) a police stop exceeding the time needed to handle the matter for which the stop was made violated the Constitution’s shield against unreasonable seizures, (3) a seizure justified only by a police-observed traffic violation becomes unlawful if it is prolonged beyond the time reasonably required to complete the issuing of a ticket for the violation, and (4) a stop may, however, be prolonged for a dog sniff when there is independent information giving rise to an individualized suspicion that the occupants of the car are involved in a drug offense.

The 6-3 ruling is indeed a big win for the 4th Amendment.

In this case, Officer Struble, a K-9 officer, stopped the defendant Rodriguez for driving on a highway shoulder. After issuing a warning for the traffic offense Officer Strubble asked Rodriguez for permission to walk his dog around the vehicle. Rodriguez refused. Struble detained him until another police officer arrived. Struble’s dog performed a search and alerted to the presence of drugs in the vehicle. The dog found methamphetamine.

Seven or eight minutes elapsed between the time Struble issued the warning and the dog alerting to the presence of contraband.

Rodriguez faced several federal drug charges. Although he moved to suppress evidence seized from the vehicle on the basis that Officer Struble prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff search, the lower court denied Rodriguez’s motion. Eventually, the United States Supreme Court weighed in on the search and seizure issues.

The Court reasoned that a routine traffic stop is more like a brief stop under Terry v. Ohio than an arrest. Its duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop and attend to related safety concerns.

Beyond determining whether to issue a traffic ticket, an officer’s investigation during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

The court further reasoned that a dog sniff is not fairly characterized as part of the officer’s traffic mission. Also, the Court was concerned that seizing citizens for traffic stops and holding them to conduct a more intrusive search with no evidence of criminal activity beyond the mere traffic stop is unlawful: “The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.

My opinion? Great ruling! It’s rare that the Supreme Court upholds the 4th Amendment these days. Fortunately, this favorable outcome happened because the suspect asserted his rights by refusing the dog sniff. Past rulings from the U.S. Supreme Court limit 4th Amendment protections where suspects DID NOT assert their rights. See Florida v. Bostick.

Yet here’s a case where the suspect did flex their rights. Look at the outcome! It’s a testament – a reminder, if you will – that asserting your rights makes a difference. Great case.

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.

Study: Marijuana and Alcohol Doubles Odds for DUI

Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, Race & Law, Reckless Driving, Studies, Traffic Infractions, Whatcom County Criminal Defense, , ,

A Marijuana DUI is Tough to Prove | DUI Lawyer

Marijuana is becoming increasingly legalized in the US for medical and recreational use. A new study analyzes the simultaneous use of alcohol and marijuana. In short, simultaneous users had double the odds of drunk driving, social consequences, and harm to self and others.

The researchers analyzed data from the 2005 and 2010 National Alcohol Survey (n=8,626; 4,522 females, 4,104 males). This was a Random Digit Dial, Computer Assisted Telephone Interview survey of individuals aged 18 and older from all 50 states and DC. Blacks and Hispanics were over-sampled. The study authors assessed differences in demographics, alcohol-related social consequences, harms to self, and drunk driving across simultaneous, concurrent, and alcohol-only using groups.

“We looked at three groups of adults,” explained Meenakshi S. Subbaraman, a corresponding author for the study and associate scientist at the Alcohol Research Group, a program of the Public Health Institute. “One, those who used only alcohol in the previous 12 months; two, those who used both alcohol and cannabis but always separately, or concurrently; and three, those who used both alcohol and cannabis and usually together, or simultaneously.

According to the study, simultaneous users did not necessarily always use cannabis while they drank; the groups were based on how often they drank when using cannabis, and not vice versa.

The study authors found that, compared to adults who solely used alcohol, simultaneous users had double the odds of drunk driving, social consequences, and harms to self. Compared to concurrent users, simultaneous users had double the odds of drunk driving. Simultaneous users also had the heaviest drinking patterns in terms of quantity and frequency.

The research brought interesting conclusions. “If cannabis use becomes more prevalent as U.S. states and other countries continue to legalize it, then we need to be prepared to advise people appropriately,” cautioned Subbaraman. “If you use both substances together, your risk of drunk driving, and possibly other consequences, may be higher than if you stick to using one at a time.”

The study appears in the May 2015 online issue of the journal Alcoholism: Clinical & Experimental Research.

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.

WA Legislature Considers Banning “Palcohol”

Drug Offenses, Drug Recognition Expert, DUI, Legislation, Uncategorized, , ,
Palcohol

According to the Bellingham Herald, Washington is one of a growing number of states to try banning a new powdered alcohol product before it reaches liquor-store shelves.

Palcohol is a new powdered version of alcohol. Palcohol will be made in two different formulations, a Beverage Formulation and an Industrial Formulation. Like other powdered beverages, it must be first dissolved in water prior to consumption. One package weighs about an ounce. Powdered alcohol, it claims, could lighten the loads of hikers and airlines, as well as other consumers and sellers for whom the bulk and weight of booze are burdensome, such as refreshment-sellers who operate on islands.

Several Washington legislators, however, say Palcohol is a dangerously sneaky mechanism for getting drunk and have proposed legislation to ban it before it arrives. The House Committee on Commerce and Gaming unanimously endorsed amendments to turn SB 5292, a regulatory measure that passed the Senate unopposed, into a ban on powdered alcohol for all purposes except research.

“This is not a crafted bourbon, or a scotch, or a tequila or something that’s special,” said Rep. Jeff Holy, R-Cheney, at a public hearing this week. “Powdered alcohol is simply for the purpose of intoxication, period. You’re not crafting the finer liquors.”

If the bill becomes law, Washington would join at least six other states that have prohibited powdered alcohol, including the announcement this week by Maryland officials that alcohol distributors there have agreed to a voluntary ban on the substance. More than two dozen other states have introduced bills this year to ban powdered alcohol, which was first patented in 1972 by General Foods but has not seen widespread retail sales in the U.S.

My opinion? It seems inappropriate to speculate that snorting alcohol is going to become a raging epidemic. There’s no evidence. It also seems hypocritical to ban powdered alcohol without banning alcohol itself. Remember how Prohibition worked? Was that a great success?

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

State v. Vanness: Unlawful Search of a Lockbox Inside a Backpack.

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals

LOCKMED GUARDIAN LARGE Combination Lockbox

In State v. Vanness, the WA Court of Appeals Division I decided that the warrantless search of a locked box found inside a backpack that the defendant was wearing at the time of arrest violated both the Fourth Amendment and Washington Const. art. I, § 7.

Defendant VanNess was arrested for having outstanding warrants in Everett, WA. When arrested, VanNess was wearing a backpack and carrying a bag. A police officer removed the backpack and asked permission to search it. VanNess did not respond. Everett Police Department had a policy requiring officers to search backpacks for dangerous items. Following that policy, officers searched VanNess’s backpack and found knives. They also found a small box with a combination lock.

The police officer used a flathead screwdriver to pry open the box. He looked inside. Although he did not see any dangerous items, he saw a scale and small plastic “baggies” and smelled vinegar, which he associated with heroin. The box was delivered to the Everett Police Department’s property room.

Police obtained a warrant to search the box. They found suspected methamphetamine and heroin, a digital scale, a glass pipe, and several plastic baggies. The Prosecutor charged VanNess with Possession of Heroin with Intent to Deliver and Possession of Methamphetamine with Intent to Deliver. Both crimes are Class B felonies. The trial court denied VanNess’s motion to suppress. At trial, the court admitted the evidence. A jury found VanNess guilty of all charges. VanNess appealed.

A warrantless search is per se unreasonable, unless the State can prove a “carefully drawn and jealously guarded exception” applies. These exceptions include a search incident to arrest and an inventory search. If an exception does not apply, a warrantless search is illegal and the exclusionary rule prevents the State from presenting the illegally seized evidence. Here, the defendant argued that the inventory search of his lockbox violated his Constitutional rights.

The Court of Appeals agreed. It reasoned that although State v. Stroud and State v. Valdez each involved a locked container found in an automobile, the court’s consideration of the Chimel v. California applies just as well to the facts of our case:

“Where a container is locked and officers have the opportunity to prevent the individual’s access to the contents of that container so that officer safety or the preservation of evidence of the crime of arrest is not at risk, there is no justification under the search incident to arrest exception to permit a warrantless search of the locked container.”

Under Chimel, the Court reasoned that police officers may conduct a warrantless inventory search (1) to protect the arrestee’s property, (2) to protect the government from false claims of theft, and (3) to protect police officers and the public from potential danger. Courts generally uphold inventory searches conducted according to standardized procedures which do not afford police officers excessive discretion and when they serve a purpose other than discovery of evidence.

The Court of Appeals decided that here, an officer’s compliance with an established police procedure does not constitutionalize an illegal search. Similarly, the court rejected the claim that the possibility of a bomb or dangerous firearm in the locked box established a “manifest necessity” to search the box. They reasoned that without exigent circumstances, a legitimate inventory search only calls for noting such an item as a sealed unit. With that the court concluded that neither the search incident to arrest nor the inventory search exception applies to the officer’s initial search of VanNess’s locked box. Therefore, the police unconstitutionally searched the locked box.

My opinion? Good decision. It appears the Court of Appeals announced a new balancing test for some items found on an arrested person at the time of arrest. Basically, if the item to be searched falls within a category that implicates an arrestee’s significant privacy interests, the court must balance the government interests against those individual privacy interests. Only when government interests in officer safety and evidence preservation exceed an arrestee’s privacy interest in the category of item to be searched may it be searched incident to arrest without a warrant.

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.

Marijuana / THC Breathalyzer Available Soon.

Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, police, Search Warrant, Uncategorized, Washington State Patrol, , ,

Marijuana breathalyzer technology is here, and it's coming for drivers | fox43.com

Technology appears to be catching up.

Since Colorado and Washington legalized the recreational use of marijuana in 2014, and the growing trend to legalize pot in some capacity across the nation, there is an increased interest in addressing drugged driving.

However, today’s standardized testing marijuana intoxication is not as simple as detecting alcohol. More science and research are required. It the meantime, technology will be coming to market, such as the marijuana breathalyzer being developed by Cannabix Technologies, Inc. to give police officers an on-site tool to enhance detection of THC, the psychotropic metabolite in marijuana.

In the future, devices of this type will likely be dialed in by the forensic community and become an integral element in identifying marijuana-intoxicated drivers and in other settings, including workplaces and general consumer use, just as the alcohol breathalyzer is today.

My opinion? We saw this coming. It’s almost humorous. Typically, the law lags behind technological advances. Here, technology appears to be lagging behind the evolution of marijuana legalization! Interesting development, no? This device is another tool in the hands of law enforcement – along with Drug Recognition Experts, and search warrants for the testing of blood – for investigating DUI 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.

State v. Rubio: “Exigent Circumstances” Found in Arrest for Possession of Methamphetamine.

Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

EXIGENT CIRCUMSTANCES | Austin Criminal Defense Lawyer

In State v. Rubio, the WA Court of Appeals Division III upheld the defendant’s conviction for Possession of Methamphetamine because exigent circumstances existed to seize and search the defendant after it was discovered he had open warrants for his arrest and possibly witnessed a domestic violence incident.

Officers from the Spokane police department responded to a domestic disturbance call and found Ricardo J. Rubio inside the apartment at the reported address. Police ran a check on Mr. Rubio and discovered three outstanding warrants for his arrest. He was subsequently arrested and booked into jail. While being booked, police discovered methamphetamine in Mr. Rubio’s sock. He was convicted of possession of a controlled substance. The judge denied Rubio’s pretrial motion to suppress the evidence. He was later convicted at a bench trial.

Rubio appealed on the argument that he was unlawfully seized because he was merely witnessed the reported DV disturbance. The Court of Appeals, however, disagreed. They reasoned the seizure was lawful under the exigent circumstances exception to the warrant requirement.

Some background is necessary. Generally, warrantless searches are unreasonable per se under the Fourth Amendment to the United States Constitution. However, courts recognize a few carefully drawn exceptions to this rule. The State carries the burden of proving that a warrantless seizure falls into one of these exceptions. A recognized exception to the warrant requirement allows police to seize and search a person without a warrant when justified by “exigent circumstances.”

EXIGENT CIRCUMSTANCES

An officer is allowed to stop a witness under exigent circumstances when (1) the officer has reasonable cause to believe that a misdemeanor or felony involving danger or forcible injury to persons has just been committed near the place where he finds such person, (2) the officer has reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and (3) such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime. The rationale behind the exigent circumstances exception is to permit a warrantless search where the circumstances are such that obtaining a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence.

Here, the court reasoned Mr. Rubio was lawfully seized even though the officer had no search warrant. The officer’s detention of Mr. Rubio was reasonable due to exigent circumstances because it was imperative that the officer quickly locate the injured woman and her assailant.

The court also reasoned the seizure under exigent circumstances was lawful for three reasons. First, the police officer had reason to believe that a crime was just committed at the address involving injury to a person. Second, the officer had reason to believe that each person who was in the apartment, including Mr. Rubio, had knowledge which would aid in the investigation of the crime. Third, the officer’s request for Mr. Rubio’s identification was necessary to determine the true identity of Mr. Rubio. Running the warrant check was needed to verify that Mr. Rubio was the person he claimed to be. Consequently, Officer Kirby’s seizure of Mr. Rubio was lawful under the exigent circumstances exception to the warrant requirement.

My opinion? This is a difficult case to swallow. Sure, Mr. Rubio had warrants for his arrest. And yes, the police can lawfully arrest and incarcerate people for that reason alone. And yes, the authorities regularly find illegal contraband during inventory searches and/or when defendants are booked into jail on warrants.

Still, it’s difficult to accept the notion that citizens can become criminal defendants by merely being at the wrong place at the wrong time; and that merely witnessing an alleged incident can lead one to be seized, searched and charged for a totally different crime than the one police responded to in the first place. Interesting.

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.

Attorney Alexander Ransom Accepted Into National College of DUI Defense

Bellingham, Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, Terry Stop, , ,

Orlando DUI Lawyer | National College for DUI (Drunk Driving) Defense — Orlando DUI Lawyer Elliott Wilcox

Attorney Alexander Ransom became a General Member of the National College for DUI Defense, Inc.

The National College for DUI Defense (NCDD) is a professional, non-profit corporation dedicated to the improvement of the criminal defense bar, and to the dissemination of information to the public about DUI Defense Law as a specialty area of law practice. The National College is headquartered in Montgomery, Alabama. It consists of a governing Board of Regents, a Founding Membership, a Sustaining Membership and a General Membership.

College members represent the most experienced DUI defense attorneys in the country. Members are among the top DUI practitioners in the United States. The NCDD recognizes defense lawyers who have demonstrated the skill and experience of the original Founding Members, as well as the generosity to financially sustain the growth of the NCDD. General Members are the backbone of the college—capable, experienced attorneys who dedicate a portion of their practice to the defense of DUI cases throughout the country.

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

State v. Nicholas: Court Rejects “Jury Nullification” Arguments

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Nullification, Jury Trial, marijuana, Methamphetamine, Uncategorized, Washington Court of Appeals, , ,

What is Jury Nullification and Why is it Important? | Nevada CopBlock

VERY interesting opinion from the WA Court of Appeals raises and dismisses the issue of whether jury nullification has any place in jury deliberations.

In State v. Nicholas, a jury found defendant Scott Nelson guilty of Possession with Intent to Deliver Methamphetamine, Possession of Marijuana and Use of Drug Paraphernalia. Nicholas appealed the verdict and argued that the trial court errored when it allowed the Prosecutor’s jury instruction saying, it was the jury’s “duty to return a verdict of guilty.”

Some background on jury nullification is necessary. Basically, it occurs in a trial when a jury acquits a defendant, even though the jury believes the defendant is guilty of the charges. This happens when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case. Nullification is a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law because the result dictated by law is contrary to the juror’s sense of justice, morality, or fairness.

Here, the defendant took issue with the notion that the “To Acquit” instruction from the Prosecutor states that jurors have a duty to acquit if they found the defendant guilty of the charges. This “duty” language, said the defendant, violates his right to have the jury acquit him if they disagreed with the law itself.

However, the Court of Appeals reasoned that the State of Washington’s 1874 case Hartigan v. Territory of Washington disassembles the defendant’s argument: The Hartigan court wrote, “A juryman is just as much bound by the laws of this territory as any other citizen. He acquires no right to disregard that law simply because he has taken an oath as juryman to aid in its administration.”

The court also reasoned, “Judges must declare the law, while jurors must swear to faithfully apply that law.” Their oath to faithfully apply the law is under RCW 4.44.260, which states the following:

When the jury has been selected, an oath or affirmation shall be administered to the jurors, in substance that they and each ofthem, will well, and truly try, the matter in issue between the plaintiff and defendant, anda true verdict give, according to the law and evidence as given them on the trial.

Consequently, the Court reasoned that the use of the word “duty” is consistent with the oath requirement that the jury give a true verdict, and that it does so according to the law and evidence.

Finally, the Court discussed the horrors surrounding the verdicts of defendants accused of killing and maiming individuals because of racial hatred, and that these jurors exercised jury nullification even though the evidence against the defendants was strong. The court describes how the murder trials involving the death of African American Emmett Till and NAACP leader Medgar Evers were horrible examples of jury nullification gone wrong.

The Court of Appeals concluded with a strong, scathing remark on jury nullification:

A fundamental value of America is the rule of law rather than rule by men. The Washington populace justifiably does not want activist judges who base decisions upon political views or moral judgments. The same should hold true for jurors. Jury nullification destroys the rule of law upon which America is based. As the 1992 Los Angeles riots evidence, nullification engenders anarchy.

My opinion? I see the pros and cons of this decision. On the one hand, I agree with the court that jury nullification can lead to horrible results and miscarriages of justice. On the other hand, although jury nullification is by no means a Constitutional right, it is an inherent feature of the use of jury trial verdicts. Sometimes, the law is simply unjust, misapplied by Prosecutors or simply out-of-touch with today’s reality.

For the most part, jury nullification is sometimes applied by juries yet rarely spoken about in open court. It is  certainly not supported by judges. 99.9% of all judges will refuse to formally instruct juries that the may “nullify” and acquit a defendant based on their disagreements with the law itself.

Indeed, judges constantly tell juries they must apply the law, not disagree with it! Judges know that the power to acquit a defendant does not require any instruction from the judge telling the jury that it may do so. In other words, although courts recognize that jury nullification occurs in practice, they will not promote it nor educate jurors about nullification.

Again, interesting opinion.

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

State v. Witherrite: Ferrier Warnings Do Not Apply to Car Searches

Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, Knock & Talk, law enforcement, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Unreasonable Search and Seizure - Passengers, Tire Chalking, Warrantless Searches

Interesting. In State v. Witherrite, the Court of Appeals decided that law enforcement officers need not give Ferrier warnings for car searches because an automobile should not be treated in the same manner as a home.

A deputy sheriff stopped Ms. Witherrite for a traffic violation and had her perform field sobriety tests. The deputy then received permission to search Ms. Witherrite’s car after advising her that at any time she could stop or limit the scope of the search. The deputy did not tell her that she had the right to refuse consent.

The vehicle search turned up marijuana, methamphetamine, and drug paraphernalia. The prosecutor ultimately charged Drug Offenses for each of those items. She moved to suppress the evidence, arguing that her consent was invalid due to the absence of the warnings required by State v. Ferrier, 136 Wn.2d 103,960 P.2d 927 (1998). The trial court disagreed, concluding that Ferrier did not extend to vehicles and that Ms. Witherrite had consented to the search. The court found her guilty as charged. Ms. Witherrite timely appealed.

The issuel presented on appeal was whether the Court would extend Ferrier warnings to vehicle searches.

Some background on Ferrier is necessary. In Ferrier, the Washington Supreme Court faced a situation where officers wanted to get inside a house to see if they could smell growing marijuana which they suspected was present on the basis of an unsupported tip. The officers did not tell the occupant that she had the ability to refuse consent. After being invited into the home, the officers asked for consent to search the residence. A detective explained that this “knock and talk” procedure was used in order to avoid seeking a search warrant. The defendant consented to the search and was convicted of the charges.

The Washington Supreme Court reversed the conviction, ruling that because the woman had a heightened right of privacy in her home. Under article I, section 7 of the WA Constitution, officers could not enter a home to seek voluntary consent to search the dwelling without first informing her that she did not need to consent to the entry. The court’s analysis repeatedly emphasized the heightened protection given the home under our constitution. The court then adopted the following rule:

When police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.

Despite the above rule, the WA Court of Appeals in this case decided Ferrier warnings are NOT applicable outside of the home because the Washington Supreme Court has long distinguished houses from vehicles in the search and seizure context.

One particularly instructive case the court examined was State v. Vrieling, 144 Wn.2d 489,28 P.3d 762 (2000). There, a deputy sheriff stopped a motor home and arrested the driver, Ms. Vrieling. A search of the motor home was conducted incident to the arrest. The question before the court was whether the then-existing vehicle search doctrine applied to the search of the motor home, which is essentially a house-like vehicle. The court ultimately concluded that when a motor home is used as a vehicle, the vehicle search doctrine applied and apparently, Ferrier warnings do not.

The treatment of the home as most deserving of heightened protection under the WA constitution led the court to conclude that Ferrier warnings need not be given prior to obtaining consent to search a vehicle.

My opinion? Sad as it seems, this opinion makes sense. There certainly are differences between a car and a home. Simply put, homes have more privacy protections than cars.

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

State v. Espey: Prosecutor’s Improper Comments During Trial Reverses Defendant’s Convictions

Assault, Burglary, Constitutional Rights, Drug Offenses, Due Process, felony, Firearm, Jury Trial, Privacy, Prosecutorial Misconduct, Robbery, Violent Crime, Washington Court of Appeals, , ,

New trial ordered for murder suspect; Fifth District says Baricevic allowed improper testimony | Madison - St. Clair Record

Good opinion. In State v. Espey, The Court of Appeals ruled that a Prosecutor’s improper comments during a jury trial required reversal of the defendant’s convictions.

Mr. Espey was charged with Robbery First Degree, Burglary First Degree, Unlawful Possession of a Firearm First Degree, Possession of a Stolen Firearm and Unlawful Possession of a Controlled Substance. He had three separate jury trials. During closing argument at the second trial, the prosecutor argued the jury should consider Espey’s statement to police in light of the time he had spent consulting with attorneys prior to making the statement. The prosecutor said the following:

“Where I suggest you start is, start with his own recorded statement that he gave to the police. Keep in mind that he had been on the run for approximately six weeks. Keep in mind that he had already consulted with two attorneys, Chip Mosley and Gary Clower. He had lots of time to figure out what story he was going to tell the police.

If you have ever dealt with somebody who is a good liar, they have a pattern. What they do is this: admit everything you can’t admit without getting into trouble and only deny the stuff that you have to . . . You heard Tom Espey’s story in there. ‘I’m not guilty of robbery because i personally didn’t take anything. I’m free. Okay, I did everything else, but guess what? You can’t touch me.’ And he is wrong. He is wrong because he doesn’t understand what it means to be an accomplice. He doesn’t understand what accomplice liability means.”

Defense counsel did not object to these highly inflammatory and prejudicial statements. The jury convicted Espey of 3 of the 5 felonies.

In overturning the convictions, the Court of Appeals reasoned that the Prosecutor’s comments were so flagrant and ill-intentioned that no curative instruction could have stopped their prejudicial effect from swaying the jury. Therefore, defense counsel’s failure to object at trial did not waive the issue.

The court further reasoned that a defendant has a right to counsel under the state and federal constitutions under the 6th Amendment of the U.S. Constitution and article 1, subsection 22 of the Washington Constitution. Under these laws, several courts have held that a prosecutor violates these rights by using “an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment,” to imply guilt or suggest that the defendant hired an attorney to concoct an alibi. No prosecutor may employ language which denigrates the right of a criminal defendant to retain counsel of his choice, or otherwise limits the fundamental due process right of an accused to present a vigorous defense.

Finally, the court reasoned that the Prosecutor strikes at the core of the 6th Amendment right to counsel when it seeks to create an inference of guilt out of a defendant’s decision to meet with defense counsel. “That is precisely what the state did here and reversal is required as a result. The State thereby improperly commented on and penalized Espey’ s exercise of the right to counsel, a right guaranteed by the state and federal constitutions.”

The Court of Appeals reversed the convictions.

My opinion? Great 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.