Category Archives: Drug Offenses

State v. Doughty: WA Supremes Limit Scope of Terry Stops

Constitutional Rights, Drug Offenses, felony, Jail, Jury Trial, law enforcement, Methamphetamine, misdemeanor, police, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Supreme Court, , ,

terry stop | Nevada Public Radio

In State v. Doughty, the WA Supreme Court held that a person’s two-minute visit to a suspected drug house at 3:20 in the morning is insufficient grounds for an investigative seizure.

Late one night, defendant Walter Moses Doughty approached a suspected drug house, stayed for two minutes, then drove away.  A police officer who observed Doughty’s approach and departure stopped Doughty on suspicion of drug activity.  This is typically called a Terry stop under Terry v. Ohio.

During this investigative seizure the officer ran a records check and, based on the results, arrested Doughty for driving with a suspended license.  Police found methamphetamine during a vehicle search incident to arrest.  At trial, he was convicted of Possession of Methamphetamine. The Court of Appeals confirmed the conviction.  The case ended up with the WA Supremes.

Some explanation of a Terry stop is necessary.  In justifying the particular intrusion/investigation, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.  When reviewing the merits of an investigatory stop, a court must evaluate the totality of circumstances presented to the investigating officer.  The State must show by clear and convincing evidence that the stop was justified.

Under this analysis, the WA Supremes reasoned that a person’s presence in a high-crime area at a “late hour” does not, by itself, give rise to a reasonable suspicion to detain that person.  Similarly, a person’s “mere proximity to others independently suspected of criminal activity does not justify the stop.”

Although the State argued the circumstances warranted the search, the court reasoned that Police may not seize a person who visits a location — even a suspected drug house — merely because the person was there at 3:20 a.m. for only two minutes.  “The Terry-stop threshold was created to stop police from this very brand of interference with people’s everyday lives.”  Additionally, the United States Supreme Court embraced the Terry rule to stop police from acting on mere hunches.

Finally, the Court reasoned that Officer Bishop relied only on his own incomplete observations.  There was no informant’s tip and no furtive movement.  Bishop merely saw Doughty approach and leave a suspected drug house at 3:20 a.m.  Bishop had no idea what, if anything, Doughty did at the house.  Accordingly, these circumstances does not warrant intrusion into Doughty’s private affairs.

The WA Supremes reversed the Court of Appeals, suppress the evidence against Doughty, and vacated his conviction.

My opinion?  GREAT decision.  It’s always nice when our esteemed judges follow the law in undramatic fashion.  Clearly, the stop was unlawful and the evidence should have been suppressed by the trial court and court of Appeals. 🙂

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.

Make New Crack Law Retroactive

Drug Offenses, felony, law enforcement, Legislation, police, Race & Law, , ,

Obama signs bill reducing cocaine sentencing gap - CNN.com

Good stuff.  Very informative article regarding Obama’s move to lighten up on federal crack cocaine laws,

Last month, President Obama signed landmark legislation title the Fair Sentencing Act. The legislation broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes ­involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams.

Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years.

The article’s authors also argue Congress should finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers’ new and enlightened perspectives about punishment for those types of offenses.

My opinion?  I totally agree with the article’s authors.  The so-called harmful effects of crack cocaine was largely demonized as the exact reason why the “War on Drugs” became so popular.  And here we are, 2-3 decades later, with overcrowded jails and the “harmful effects of crack cocaine” proven largely untrue.  Yet the war rages on, stupidly.  Congress needs to abandon the archaic drug laws relating to crack cocaine.

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

Local Roundabouts Show No Spike in Crashes/Injuries, BUT . . .

Bellingham Defense Attorney, Drug Offenses, DUI, law enforcement, misdemeanor, police, Probable Cause, Search and Seizure, Terry Stop, Whatcom County Criminal Defense, , ,
Ring Around “Rosy” – The “Magic Circle” Debacle at Wilshire and Western | Paradise Leased
Early data from the state Department of Transportation (DOT) shows there hasn’t been a spike in crashes since the new roundabouts in Whatcom County were constructed.  Of the accidents that have occurred, none have resulted in injuries, unlike many of the crashes before when traffic signals controlled some of the intersections.

My opinion?  Yes, the data appears good.  However, I’m concerned that police use roundabouts to conduct unlawful/pretextual pullovers for DUI.  “Pretext” is the arrest of a person for a minor crime (as a traffic violation) for the real purpose of getting an opportunity to investigate (as through a search) the person’s possible involvement in a more serious crime for which there are no lawful grounds to make an arrest.  Pretextual stops are unlawful.

Navigating a roundabout is confusing for inexperienced drivers.  The four most common mistakes people make are (1) not yielding to traffic already in the roundabout, (2) not using their blinkers, (3) changing lanes in the roundabout, which is not allowed; and (4) treating the yield signs entering roundabouts as stop signs.

Any one of these common mistakes can cause a police officer to initiate an unlawful pretextual pullover.

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 Contends Pot Isn’t a Major “Gateway Drug”

Drug Offenses, marijuana, misdemeanor, Race & Law, Search and Seizure, , ,

Marijuana The Gateway Drug To Pizza and Beer: Lined Journal: The Thoughtful Gift Card Alternative: Uncle Bud: 9781070262895: Amazon.com: Books

A new report casts doubt on the argument that marijuana is a “gateway drug” that plays a major role in leading people to try other illegal drugs.  Researchers found that other factors, such as ethnicity and stress levels, are more likely to predict whether young adults will use other illegal drugs.

The researchers based their findings on surveys of 1,286 young adults who attended Miami-area public schools in the 1990s.  Ethnicity was the best predictor of future illegal drug use, the study findings indicated, with whites the most likely to use the drugs, followed by Hispanics and then blacks.

The study findings are published in the September issue of the Journal of Health and Social Behavior.

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

 

State v. Adams: The WA Supremes On a Hot Roll With Yet ANOTHER Decision re. Illegal Car Searches

Constitutional Rights, Drug Offenses, Exigent Circumstances, felony, Jail, law enforcement, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can the Police Legitimately Search My Vehicle Without a Warrant? - FindLaw

“1-2-3!”

You hear this shouted in fight gyms and boxing matches around the world.  It’s a quick, concise statement of one of the deadliest 3-punch combinations in the sport.   It’s a left jab, followed by a right cross and ending with a left hook (consider opposite hands if you’re southpaw).  The jab opens the opponent’s defense and establishes punching range.  The right cross – your power hand – does damage.  The coup de gras left hook should result in more major pain, a knockdown or knockout; especially if ANY of the punches land flush on the chin or temple.  At any rate, somebody is getting hurt.  Or put to sleep.

For the month of August, the WA Supremes issued a 1-2-3 combination with State v. Tibbles, State v. Afana and now State v. Adams; all three decisions upholding the U.S. Supreme Court’s Arizona v. Gant which held that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

Lat’s talk about State v. Adams.  On May 24, 2006, Deputy Volpe observed Coryell Adams sitting in a parked car outside a casino.  Volpe checked the license plate number and learned that Adams had an outstanding arrest warrant for driving with a revoked license.

Volpe followed Adams as he drove to a Taco Bell parking lot.  Volpe drove onto the same lot, activated her emergency lights, and parked about eight feet behind Adams’ car.  As she stepped out of her patrol car, Adams stepped out from his car, stood near the driver’s side door and began yelling at Volpe, challenging the stop as racial profiling.  After Volpe repeatedly ordered Adams back into his car, Adams “took 4-5 steps away from the car” and stepped into an adjacent parking stall where he continued to yell and wave his arms.  At Volpe’s request, another deputy arrived and Adams calmed down.  He was then placed under arrest.

After Adams failed to identify himself, Volpe frisked Adams and removed his keys and his wallet, which contained documents identifying him as the registered owner of the vehicle.  The other deputy unlocked Adams’ car. After Volpe placed Adams in the back of her patrol car and read him his rights, she searched his vehicle and found a small black bag containing cocaine in the center console.  He was charged with Possession of Cocaine.  The case wound its way into the WA Supreme Court.  During that time, the U.S. Supremes decided Arizona v. Gant, which was alluded to earlier.

Similar to State v. Afana, the State argued the officer acted in “good faith” when arresting Adams.  However, the WA Supremes made short work of the case:

“Our recent decision in Afana resolves this case.  In Afana we rejected the State’s argument that “good faith” reliance on pre-Gant case law constitutes an exception to the exclusionary rule under article I, section 7 of the Washington State Constitution.  We explained the distinction between an officer’s “good faith” reliance on statutes that were subsequently declared unconstitutional to establish probable cause to arrest . . . [B]ecause the State concedes that Gant applies to the search in this case, and because we have declined to recognize a “good faith” exception based on pre-Gant case law in Afana, we reverse the conviction in this case.”

My opinion?  Criminal defense attorneys have reason to raise a glass and toast the WA Supremes.  These decisions are a fitting end to the summer of 2010.  Take notice, prosecutors: Gant and its Washington progeny are here to stay.  These cases won’t be skirted by “exigent circumstances.”  They won’t be distinguished by “good faith.”  Hurray to a new millennium in cases involving car searches and seizures. 🙂

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. Afana: ANOTHER Awesome Decision re. Illegal Car Searches

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington Supreme Court, , ,

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

In State v. Afana, the WA Supreme Court held the warrantless search of a vehicle incident to passenger arrest was unlawful, and there is no “good faith” exception under the Washington Constitution.

BACKGROUND FACTS

At 3:40 a.m., Deputy Miller noticed a car which was legally parked on a city street in Spokane County.  He became suspicious, parked his cruiser behind the vehicle, shone his spotlight on it, and made contact.  Two people were inside.  The driver said they were watching a movie on his portable DVD player.  Deputy Miller ran warrant checks on both individuals.  He discovered a warrant existed for the passenger, Ms. Bergeron, for the crime of Criminal Trespass.  He arrests her.

Deputy Miller searched the car and found a black cloth bag behind the driver’s seat.  The bag contained a crystalline substance which looked like methamphetamine.  He also found a glass marijuana pipe, needles, and plastic scales.  Deputy Miller arrested Mr. Alfana, the driver, on Drug Charges.

The case wound up for review before the WA Supreme Court.  in the meantime, the U.S. Supreme Court issued its decision in Arizona v. Gant, 129 S. Ct. 1710 (2009).  There, the Court said that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

The Court reasoned that, pursuant to Gant, nothing justified the search that happened after arrest.  Although the warrant for Bergeron’s arrest gave Deputy Miller a basis to arrest her, he had no reason to believe that the vehicle she occupied contained evidence of her underlying crime, namely, Criminal Trespass.  The deputy also lacked reason to believe that she posed a safety risk because she was already in custody in the backseat of the patrol vehicle.

Furthermore, the fact that the driver, Afana, was unsecured at the time of the search does not justify the search.  This is so because he was not under arrest at the time the search was conducted, and Gant held that “police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search.”  Here, the only arrestee was Bergeron; who was already in the backseat of the police cruiser.

The Court addressed the State’s “Good Faith” exception to warrantless searches.  Historically, this exception allows an otherwise unconstitutional search or seizure if the police officer believes the search was constitutional/reasonable at the time.  Here, the court rejected the State’s “Good Faith” argument because there was no probable cause to conduct the illegal search in the first place.  The evidence was suppressed.

My opinion?  August is a BIG month for handing down post Gant-related decisions (please refer to my blog on State v. Tibbles).  I’m really impressed with how the WA Supremes are handling Gant.  They aren’t chipping away at Gant with BS opinions.  They are, in fact, honoring Gant.  Afana was a unanimous decision, with only one Justice dissenting.  Horray!  🙂

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. Maddox: Great Decision on Unlawful Vehicle Searches

Constitutional Rights, Drug Offenses, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Terry Stop, Washington State Patrol, Washington Supreme Court, , ,

Vehicle Inventory and Community Caretaker - Daigle Law Group

In State v. Maddox, the Ninth Circuit Court of Appeals Evidence found during an inventory search was suppressed, as no statute specifically authorized impounding the vehicle for Reckless driving or DWLS 3, the vehicle was not impeding traffic, it was not abandoned, and the driver offered to have his friend pick up the vehicle.

Officer Bonney pulled Neal Maddox over for driving suspiciously.  Upon contact, Officer Bonney noticed the vehicle’s tags were expired and Maddox’s license was suspended.  Officer Bonney placed Maddox under arrest, handcuffed him, and escorted him to the patrol car.  He search Maddox and found $358 cash.  Maddox posed no threat to officer safety and there was no danger of evidence destruction.

Nevertheless, Officer Bonney returned to Maddox’s vehicle, reached inside, and retrieved a key chain.  Hanging on the key chain was a metal vial with a screw top.  Officer opened the vial’s top and found methamphetamine.  He searched the vehicle, found a computer case, and discovered a handgun and more methamphetamine.

The court reasoned the officer’s search of Maddox’s keychain was unlawful.  Since Maddox was handcuffed in the backseat of the car, there was no possibility of Maddox concealing or destroying the key chain and the items contained therein.  There was also no sighting of weapons or threats to use one.

The court also reasoned the vehicle impoundment was unlawful.  The police were not performing community caretaking, the vehicle was not abandoned, impeding traffic, or threatening public safety or convenience.  Also, because Maddox offered to have his friend move the vehicle, the officer did not rightfully consider any alternatives before impounding it.  Consequently, The officer’s impoundment of the vehicle did not qualify as a valid inventory search and violated the Fourth Amendment.

My opinion?  Obviously, I’m pleased.  Some may argue the court wrongfully decided the case because RCW 46.55.113(1)  specifically authorizes an impound when a driver is arrested for Driving While License Suspended (DWLS).  Nevertheless, there were larger issues at stake transcending a mere DWLS.  The officer’s unlawful search of the keychain itself moved this issue beyond statutory obligations imposed on DWLS.

Good decision.

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

State v. Tibbles: “Exigent Circumstances” for Warrantless Search = Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Exigent Circumstances, felony, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Supreme Court, , ,

Haddonfield Criminal Defense Lawyers | Illegal Search and Seizure

In State v. Tibbles, the WA Supreme Court held the search  of a defendant was not justified by exigent circumstances and the marijuana/paraphernalia evidence obtained as a result of  the search should have been suppressed.

Micah Tibbles was pulled over following a traffic stop.  During the stop, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’s car.  Though he did not arrest Tibbles or seek a warrant, he searched the car and found the contraband.  Trooper Larsen and the prosecutors argued that although they lacked a search warrant, “exigent circumstances” justified the search nonetheless.  Tibbles was convicted of for possession of marijuana and drug paraphernalia.  The case wound up in the WA Supreme Court.

The Court reasoned the Trooper had probable cause to arrest Tibbles based on the odor of marijuana alone under the Plain View Doctrine.   However, the existence of probable cause, standing alone, does not justify a warrantless search. The Court also reasoned that because Trooper Larsen did not arrest Tibbles, and did not have a warrant when he searched Tibbles’s car, the search must be justified by one of our recognized warrant exceptions; such as “exigent circumstances.”

Here’s the law on exigent circumstances: basically, the exigent circumstances exception to the warrant requirement applies where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence.

Under State v. Tibbles, there are five circumstances types of exigent circumstances: (1) hot pursuit; (2) fleeing suspect; (3) danger to arresting officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the evidence.”  A court must look to the totality of the circumstances in determining whether exigent circumstances exist.

Here, the WA Supremes decided the State failed to show that exigent circumstances justified the warrantless search of Tibbles’s car.  Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent.  Additionally, the State failed to establish that obtaining a warrant was otherwise impracticable.

“For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant,” said Justice Debra Stephens of WA Supremes.

Additionally, regarding the safety concerns, the facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles’s actions.  Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight.   Tibbles was alone, was compliant with the  trooper’s requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper  Larsen searched the car and seized the marijuana and drug paraphernalia.  For these reasons, the WA Supremes reversed the WA Court of Appeals which upheld Tibbles conviction.

My opinion?  BEAUTIFUL.  The State’s “exigent circumstances” arguments were totally baseless.  Let’s boil it down: exigent circumstances should be found only where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape, or permit the destruction of evidence.  If these situations do not exist, then neither does exigent circumstances.  PERIOD.

Well done, WA Supremes.  Thank you.

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. Harvill: The “Duress” Defense

Constitutional Rights, Drug Offenses, Duress Defense, felony, Washington Supreme Court, , ,

He Made Me Do It! Duress in Criminal Cases

In State v. Harvill, the WA Supreme Court held that the lower court abused its discretion by disallowing the defendant to argue the defense of “Duress.”

Defendant Joshua Harvill sold cocaine to Michael Nolte in a controlled buy organized by the Cowlitz County Sheriff’s Office.  At trial, Harvill admitted to selling cocaine to Nolte because he feared that, if he did not, Nolte would hurt him or his family.  Both men knew each other for several years.  Nolte was 5′ 10″ and weighed around 200 pounds.  Harvill was 5’5″ and weighed about 140 pounds.

Harvill feared Nolte.  They worked together, and Nolte bragged about smashing another man’s head with a beer bottle, causing brain damage.  Harvill also knew that Nolte grabbed a gun from another man and then stabbed him.  Harvell knew that Nolte used steroids and that he feared what Nolte was capable of.

Despite their background, the trial court denied Harvill’s jury instruction on the defense of duress.  The jury found Harvill guilty.  He appealed.  The case wound up in the WA Supreme Court.

The Court reasoned that a defendant is entitled to the defense of duress if the defendant proves that (a) he participated in the crime under compulsion by another who by threat or use of force created an apprehension in his mind that in case of refusal he or another would be liable to immediate death or immediate grievous bodily injury; and (b) such apprehension was reasonable upon his part; and (c) he would not have participated in the crime except for the duress involved.  “The question comes down to whether the duress statute requires an explicit threat or whether an implicit threat that arises from the circumstances.”

Here, the Court ruled that defining “threat” to include both explicit and implicit threats serves the purpose of proving duress.  This applies with equal force to direct threats, arising from overtly threatening words or physical intimidation, and to indirect threats, arising from other conduct and circumstances.  As long as the defendant’s perception of the implicit threat is reasonable under the circumstances, he is put to the choice between two evils through no fault of his own and should be allowed to argue the defense.  Additionally, there is no legal authority requiring a threat to be an explicit threat.

Ultimately, the Court ruled Harvill presented sufficient evidence of fear arising from an implicit threat, and the jury should have had the opportunity to decide if this fear was reasonable and if Harvill would have sold cocaine to Nolte under the threat.

My opinion?  Great decision.  Although the WA Supremes split hairs and engaged many semantics to get there, but they issued a good opinion all around.  We’ve all seen the famous mafia movies.  Duress is intimidation, whether implicit or express.  “Let’s go for a car ride” usually means “you’ll be dead before dawn.”  This is the implicit language of the criminal underground.  Things aren’t always nice and clear, especially veiled threats.  Kudos to the WA Supremes for knowing this.

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.

Padilla v. Kentucky: Noncitizens Entering Guilty Pleas + Bad Legal Advice = DEPORTATION!

Constitutional Rights, Drug Offenses, Due Process, felony, Immigration, United States Supreme Court, , ,

Will a Felony Get You Deported - JobsForFelonsHub.com

In Padilla v. Kentucky, the U.S. Supreme Court held that Defense attorneys representing aliens charged with crimes have a constitutional obligation to tell the client that a guilty plea carries a risk of deportation.

Mr. Padilla, a lawful permanent resident of the United States for over 40 years, faced deportation after pleading guilty to Drug Offenses in Kentucky.  He claimed his attorney not only failed to advise him of this consequence before he entered the plea, and also told Padilla not to worry about deportation since he had lived in this country so long.  Padilla says he would have avoided pleading guilty and gone to trial had he not received bad advice from his attorney.

In deciding the issue, the U.S. Supremes applied the two-part test from Strickland v. Washington, 466 U.S. 668.  The test analyzes whether (1) counsel’s legal advice fell below an objective standard of reasonableness, and (2) there exists a reasonable probablity that, but for counsel’s unprofessional errors, the result of the proceedings would have been different.

Here, Padilla proved his defense attorney gave misleading advice.  The Supremes reasoned that defense attorneys MUST inform a client whether his plea carries risk of deportation.  Changes to immigration law have dramatically raised the stakes of a noncitizen’s criminal conviction.  They further reasoned that, recently, immigration reforms have expanded the class of deportable offenses and limited judges’ authority to alleviate deportation’s harsh consequences.  The importance of accurate legal advice for noncitizens has never been more important.

My opinion?  Good decision.  Mr. Padilla was rightfully granted relief for his attorney’s bad legal advice.  Under the law, immigrants can be deported if they are convicted of crimes which expose them to serving a year or more jail time.  Practically speaking, this applies to all gross misdemeanors and felonies.  Simple misdemeanors are exempt because their exposure is typically only 90 days in jail.

Padilla warns defense attorneys to correctly advise immigrant clients of the consequences of entering guilty pleas.

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.