Category Archives: Drug Offenses

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.

State v. Eaton: A Defendant’s Sentence Cannot Be Enhanced For Involunatry Acts

Constitutional Rights, Drug Offenses, Due Process, DUI, felony, Jail, law enforcement, Methamphetamine, police, Search and Seizure, Sentencing, Washington Supreme Court, , ,

sentence enhancements Archives - Oklahoma Justice Reform

In State v. Eaton, the WA Supreme Court decided a defendant must act volitionally – with intent – to put himself within a zone that requires an upward sentencing enhancement.  An enhancement should not apply for drugs the defendant possessed when arrested and brought to jail.

Mr. Eaton was arrested for DUI and taken by police to the Clark County Jail.  At the jail, Eaton was searched by staff who discovered a small bag of methamphetamine taped to his sock.  The State charged Eaton with DUI and Possession of Methamphetamine and sought a sentencing enhancement for possessing a controlled substance in a jail or prison.  A jury convicted Eaton on both charges and found by special verdict that Eaton possessed methamphetamine while in a jail.  The trial court imposed an enhanced sentence.

The WA Supremes overturned the sentencing enhancement.  They reasoned that once Eaton was arrested, he no longer had control over his location.  From the time of arrest, his movement from street to jail became involuntary: involuntary not because he did not wish to enter the jail, but because he was forcibly taken there by State authority. He no longer had the ability to choose his own course of action.  Nor did he have the ability through some other course of action to avoid entering the area that would increase the penalty for the underlying crime.

My opinion?  Again, excellent decision.  It’d be different if Eaton knew he was going to jail and tried sneaking meth within the facility. However, those circumstances did not exist.  He was arrested for DUI  – a different matter altogether – and immediately booked into jail.  He never voluntarily brought the drugs into the jail itself.  He merely happened to possess them when arrested for DUI.

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.

Whatcom County Jail Gets Record Number of Inmates

Animal Abuse, Assault, Bellingham, Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Domestic Violence, Drug Offenses, Due Process, DUI, felony, Firearm, Homicide & Manslaughter, Jail, law enforcement, marijuana, misdemeanor, police, Pretrial Investigations, Probable Cause, Property Crimes, Retail Theft, Search and Seizure, Search Warrant, Sentencing, Sex Crimes, Speedy Trial & Continuances, Terry Stop, Theft, Washington State Patrol, Whatcom County Criminal Defense, , ,

COVID-19 infections hit record high in California prisons | CalMatters

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.
The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources. From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecessarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack.

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. Erickson: Probation Officers Have Too Much Power

Assault, Bench Warrant, Constitutional Rights, Drug Offenses, law enforcement, misdemeanor, police, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

NY Probation Violation Hearing Lawyer - E. Stewart Jones Hacker Murhpy

In State v. Erickson, the WA Supreme Court decided a court may issue a bench warrant without a formal finding of probable cause on the underlying allegations after the defendant fails to appear at a probation violation hearing.

Anthony Erickson received probation after he was convicted of fourth degree assault.  His probation officer alleged Erickson violated the terms of his probation.  Erickson was issued a summons ordering him to appear at a probation violation hearing.  When Erickson failed to appear, the court issued a bench warrant for his arrest.  Erickson was subsequently arrested.  A strip search at the jail revealed he possessed cocaine.

The WA Supremes reasoned that because Erickson failed to notify the court of any change of address, the judge in the lower court had a “well-founded suspicion” that Erickson had violated that condition of his release.  Consequently, the judge had authority to issue the bench warrant based on that alone.

My opinion?  It’s unbelievable that the allegations – and that’s all they are, mere allegations – of a probation officer are upheld as stone-cold truth by judges if a defendant fails to show up for a hearing.  It’s unbelievable that judges can now issue bench warrants because a defendant failed to notify their probation officer of an address change.  It’s unbelievable that defendants can be taken into custody, strip searched, and arrested because they failed to notify their probation officer of an address change.

This case highlights how unfairly the gears of the criminal justice system grind away at individual rights.  Let’s hope this gets appealed to a higher court.

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. Buelna Valdez: Search Incident to Arrest is Invalid (Tip of the Hat To Arizona V. Gant)

Constitutional Rights, Drug Offenses, Due Process, felony, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

The Fourth Amendment Reasonableness Requirement - FindLaw

In State v. Buelna Valdez, the WA Supreme Court held that a search incident to arrest was invalid under the 4th Amendment.

Here, a police officer pulled over a vehicle because it had only one working headlight.  The officer ran a records search on the driver, Mr. Buelna-Valdez, and discovered there was an outstanding warrant for his arrest.  The officer handcuffed and secured the defendant in his patrol car.  Officer searched the vehicle.  He noticed loose dashboard panels.  He calls a K-9 unit.  The K-9 uncovered methamphetamine located under a moldy cup holder.  The passenger was then also arrested. Both men were charged with drug offenses.

The WA  Supremes held that the automobile search incident to arrest was unlawful.  They reasoned that because the arrestee was handcuffed and secured in the backseat of a patrol car, he no longer had access to any portion of his vehicle.  The officer’s search of the vehicle was therefore unconstitutional under both the Fourth Amendment and the WA Constitution.  The Court also embraced the U.S. Supreme Court’s Arizona v. Gant in finding factual similarities between the cases:

“Under the Fourth Amendment, the arrestee was secured and not within reaching distance of the passenger compartment at the time of the search, so neither officer safety nor preservation of evidence of the crime of arrest warranted the search.  See Gant, 129 S. Ct. at 1719.  Furthermore, the arrestee was arrested based upon an outstanding warrant; the State has not shown that it was reasonable to believe that evidence relevant to the underlying crime might be found in the vehicle.  See Gant, citing Thornton, 541 U.S. at 632 (Scalia, J., concurring).”

The Court also reasoned the search was conducted without a warrant, even though the circumstances did not prevent officers from obtaining one prior to the search:  “There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed.  As such . . . the evidence collected from that search should be suppressed, and the resulting convictions reversed.”

My opinion?  Obviously, I’m happy.  The case is great law for defense attorneys.  Indeed, it goes even further than Gant. Although good, Gant was slightly problematic because it allowed police to search for evidence of the crime of arrest.   In this decision, however, the WA Supremes only allow a search if there is evidence of destruction.  Therefore, in WA, if the defendant is in the squad car, the police cannot search the defendant’s vehicle.  Beautiful.

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. Harrington: “Progressive Intrusion” = Unlawful Search

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, Methamphetamine, misdemeanor, police, Privacy, Search and Seizure, Terry Stop, Washington State Patrol, Washington Supreme Court, , ,

4 Charts That Show Stop-and-Frisk Is a Terrible Crime-Fighting Tool

In State v. Harrington, the WA Supreme Court held that the “Progressive Intrusion” of the officer during the investigations was an unlawful search.

Issue was whether the police unlawfully searched/seized the defendant prior to arrest, in violation of article I, section 7 of the Washington Constitution, requiring suppression of drugs found on his person.

In short (yes, I’m getting to the good part), the WA Supremes decided the search WAS unlawful, and amounted to a “progressive intrusion.”  Evidence suppressed, case thrown out of court.

The facts: On August 13, 2005, 11:00PM, Officer Reiber of the Richland Police was driving his police car on duty.  He noticed soon-to-be defendant, Dustin Harrington, walking down the sidewalk.  Officer Reiber made a U-turn, drove past Harrington, and pulled into a driveway.  He did not activate his lights or siren.  Officer exited his car and made contact with Harrington (this is called a “social contact”).

Officer Reiber asked questions.  Harrington answered them awkwardly and non-sensically.  Officer became nervous because Harrington kept putting his hands in his pockets.  The conversation lasted about five minutes.

State patrol Trooper William Bryan drove by the scene.  He initiated a U-turn, got out of his car, and approached the two men.  Similar to Officer Reiber, Trooper Bryan did not activate his emergency lights.  Upon contact, Trooper Bryan did not speak to either gentleman.  He stood about eight feet away.

Officer Reiber asked Mr. Harrington if he could pat down Harrington “for officer safety reasons.”  Mr. Harrington said “No.”  Officer patted Harrington down anyway, against Harrington’s consent.  During the pat-down, Officer Reiber found a glass pipe used for smoking methamphetamine.  Reiber arrested Harrington.  During the search, officers discovered a pipe and baggie containing methamphetamine on Harrington’s person. Harrigton was charged with Unlawful Possession of Methamphetamine.

The WA Supremes articulated why the search/arrest was illegal, and consequently, why the evidence should be suppressed.  They discussed what “social contact” between an officer and citizen means:

“The phrase’s plain meaning seems somewhat misplaced.  ‘Social contact’ suggests idle conversation about, presumably, the weather or last night’s ball game — trivial niceties that have no likelihood of triggering an officer’s suspicion of criminality.  The term ‘social contact’ does not suggest an investigative component.”

The Court further reasoned that subsequent events quickly dispelled the social contact and escalated the encounter to an unlawful seizure. First, Trooper Bryan’s arrival at the scene escalated the situation away from a mere “social contact” because a reasonable person would think twice about the turn of events.  As a result, Trooper Bryan’s presence contributed to the eventual seizure of Harrington.

Second, Officer Reiber’s request for Mr. Harrington  to remove hands from pockets added to the officer’s unlawfully progressive intrusion.  Third, Mr. Harrington did not consent to the search.  Officers MUST have a well-founded suspicion to search when they lack a defendant’s consent.

Here, these circumstances lacked the foundational basis for a search.  Finally, and before Officer Reiber’s request to search, he did not ask for Harrington’s name or address, did not conduct a warrant check, and did not ask if Harrington carried drugs.

The court concluded Harrington was unconstitutionally seized because, like him, an objectively reasonable person would not have felt free to leave when officers asked to frisk.  Consequently, the seizure violated article I, section 7 of the Washington Constitution.

My Opinion?  Excellent.  Beautiful.  On point.  The WA Supremes got it right.  The cumulative effect of these violations — all three of them — amounted to an unlawful search.  I’m extremely happy the WA Supremes addressed the fine line between a lawful “social contact” and unlawful “progressive intrusion.”  I’ve had numerous clients face criminal charges as a result of an officer’s apparently innocent “social contact,” which was, in reality, a progressive intrusion into their privacy.

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.

Amid Recession Meth Menace Evolves

Bellingham, Bellingham Defense Attorney, Drug Court, Drug Offenses, felony, Methamphetamine, Studies, , ,

Crystal meth: Europe could now see a surge in supply and use

Apparently, the meth problem has grown in the face of dwindling State/County budgets.

My opinion?  It makes sense.  My last blog discussed how heroin use increased in Whatcom County.  Similarly, I would expect meth use to increase as well.  It’s a sad state of affairs.  We’ve all felt the crunch of this economy: people lose their jobs, financial situations seem hopeless, we need to feel better, and, for some, drugs provide the outlet.

Know this: meth is a particularly nasty drug bringing particularly nasty consequences.  Under Washington’s Sentencing Reform Act (SRA), a person with no criminal history is exposed to 12-20 months PRISON for delivering methamphetamine.  RCW 69.50.401(2)(b).  Meth charges are also classified as Class B felonies, which are serious felonies under the SRA.  Finally, delivery charges automatically prohibit a defendant from entering Drug Court.

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.

Heroin Use On the Rise in Whatcom County

Bellingham, Bellingham Defense Attorney, Drug Court, Drug Offenses, felony, Whatcom County Criminal Defense, , ,

Google Searches Could Predict Heroin Overdoses - Scientific American

Unfortunately, heroin use is increasing in Whatcom County.

The evidence?  Increased demand for outpatient rehab has more than doubled, needle exchanges increased 36 percent for spring/summer compared to the same time last year at the county Needle Exchange Program, the number of jail inmates going through heroin withdrawals has increased 7 to 10 percent, arrests for heroin use and sale have increased, and more people are entering rehab.

The theories behind the increase?  The drug doesn’t have to be injected anymore, it’s fairly easy to get, addicts are getting younger and, in a recession, it’s cheaper than drugs that offer similar highs.

My opinion?  The article appears spot-on.  I’ve certainly seen a spike in heroin charges filed against defendants.  I only hope that abusers get help as soon as possible.  The Whatcom County Drug Task Force is VERY experienced at investigating/busting drug rings.

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