Category Archives: Drug Offenses

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, , ,

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, , ,

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, , ,

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

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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.

State v. Patton: WA Supreme Court Acknowledges Search and Seizure Protections Afforded by Arizona v. Gant.

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, marijuana, misdemeanor, police, Police Misconduct, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

In State v. Patton, the WA Supreme Court held that an automobile search which happens after arrest is not justified unless the defendant is within reaching distance of the passenger compartment at the time of search and the search is necessary for officer safety or to secure evidence of the crime of arrest.

Randall Patton was wanted on a felony warrant.  A Skamania County Sheriff Deputy spotted him. Patton was on his property and leaning into his own car through the window, rummaging with something on the seat.  The Deputy told Patton he was under arrest.  Patton fled, but was soon apprehended inside a trailer.

Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals.

The Court found that Patton was arrested when the officer “manifest[ed] an intent to take [him] into custody” while Patton was standing by his car. Nevertheless, “the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence.”  The court elaborated their reasoning with the following:

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Congratulations to Justice Jim Johnson, who found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.   In Gant, the U.S. Supremes held that a search conducted by police officers after handcuffing the defendant and securing the scene violates the Fourth Amendment’s protection against unreasonable searches and seizures.

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

Seattle v. St. John: Police May Obtain a Search Warrant For a Blood Sample When Motorists Refuse to Give Breath Test.

Blood Test, Constitutional Rights, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

In Seattle v. St. John, the WA Supreme Court held that police may obtain a search warrant for a blood sample when motorists refuse to give a breath test.

After crashing his motorcycle in Seattle, Robert St. John was investigated for DUI. A police officer asked St. John to consent to a blood alcohol test.  St. John refused.   The officer obtained a warrant for the test.  The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent Law that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court:

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The WA Supreme Court upheld the superior court and allowed the blood test evidence.  They reasoned that the Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer’s statements about the Implied Consent law did not foreclose his obtaining the warrant.

I echo the dissenting opinion of Justice Charles Sanders.  Simply put, an officer cannot force a driver to submit to a blood test if the driver refuses consent.  However, under the majority opinion’s reasoning, a driver’s refusal to consent to a Breath test is essentially meaningless.

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. Redding: U.S. Supreme Court Declares Strip Search of 13-Year-Old Student Unconstitutional

ACLU, Constitutional Rights, Drug Offenses, Due Process, Search and Seizure, Search Warrant, United States Supreme Court, , ,

In State v. Redding, the U.S. Supreme Court ruled that school officials violated the constitutional rights of Savana Redding, a 13-year-old Arizona girl who was strip searched based on a classmate’s uncorroborated accusation that she previously possessed ibuprofen, a banned medication. This is the biggest victory for students’ rights in the last 20 years.

My opinion?  I’ll let Savannah speak for herself.  Below is a post she wrote for the ACLU’s blog:

“People of all ages expect to have the right to privacy in their homes, belongings, and most importantly, their persons. But for far too long, students have been losing these rights the moment they step foot onto public school property — a lesson I learned firsthand when I was strip-searched by school officials just because another student who was in trouble pointed the finger at me. I do not believe that school officials should be allowed to strip-search kids in school, ever. And though the U.S. Supreme Court did not go quite so far, it did rule that my constitutional rights were violated when I was strip-searched based on nothing more than a classmate’s uncorroborated accusation that I had given her ibuprofen. I’m happy for the decision and hope it helps make sure that no other kids will have to experience what I went through.

Strip searches are a traumatic intrusion of privacy. Forcing children to remove their clothes for bodily inspection is not a tool that school officials should have at their disposal. Yet, until today, the law was apparently unclear, potentially allowing for the most invasive of searches based on the least of suspicions. Every day, parents caution their children about the importance of not talking to strangers, looking both ways before crossing the street, and following directions at school.

But I imagine they never think to warn them that a school official, acting on a hunch, may force them to take their clothes off in the name of safety. And now, thankfully, they won’t have to. Our fundamental rights are only as strong as the next generation believes them to be, and I am humbled to have had a part in preserving and promoting the Fourth Amendment to the Bill of Rights.”

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.

Melendez-Diaz v. Massachusetts: Protecting the Right to Confront Witnesses

Constitutional Rights, Drug Offenses, Forensics, United States Supreme Court, , ,

In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that crime lab reports may not be used against criminal defendants at trial unless the analysts responsible for creating them give testimony and subject themselves to cross-examination.

The case arose from the conviction of Luis E. Melendez-Diaz on cocaine trafficking charges in Massachusetts. Part of the evidence against him was a laboratory report stating that bags of white powder said to have belonged to him contained cocaine. Prosecutors submitted the report with only an analyst’s certificate.

The ruling was an extension of the 2004 Crawford decision that breathed new life into the Sixth Amendment’s confrontation clause, which gives a criminal defendant the 6th Amendment right to confront witnesses.  The Court reasoned that cross-examination of witnesses is designed to weed out not only the fraudulent analyst, but the incompetent one as well.

This reasoning is strong.  In February, for example, the National Academy of Sciences issued a sweeping critique of the nation’s crime labs. It concluded, for instance, that forensic scientists for law enforcement agencies “sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.

Additionally, the decision came in the wake of a wave of scandals at crime laboratories that included hundreds of tainted cases in Michigan, Texas and West Virginia.  Those scandals proved that live testimony from analysts was needed to explore potential shortcomings in laboratory reports.

My opinion?  Excellent decision!  It gives much-needed teeth to the the Supreme Court’s 2004 Crawford decision.  How this decision applies as a practical matter remains to be seen.  Criminal defense lawyers may still stipulate that crime lab reports are accurate, fearing that live testimony will only underscore their clients’ guilt. Others may insist on testimony in the hope that the analyst will be unavailable.

Still, others will now be able to prove that an analyst’s conclusion was mistaken or inconclusive.  As Justice Kennedy wrote, “The defense bar today gains the formidable power to require the government to transport the analyst to the courtroom at the time of trial.”

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. Garvin: WA Supremes Held “Squeeze Search” Unlawful

Constitutional Rights, Drug Offenses, felony, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Terry Stop, Traffic Infractions, Washington Supreme Court, , ,

In State v. Garvin, the Court held that police officers cannot “squeeze” a defendant’s pockets to determine the nature of objects in the pocket.

An officer pulled Anthony Garvin over for a traffic infraction. When he noticed a knife on the seat next to Garvin, the officer ordered Garvin out of the car and conducted a search for additional weapons. In the process he discovered a baggie of methamphetamine. At trial the officer testified, “We don’t really pat anymore. It’s more of a squeeze search.”

Garvin moved to suppress the evidence seized, and the trial court denied the motion. He was convicted of possession of a controlled substance, and Court of Appeals upheld the conviction.  The WA Supreme Court granted review.

The court reasoned that the officer was not allowed to manipulate objects within the clothing, and his “squeeze method” exceeded the scope of a valid frisk under the “stop and frisk” rule articulated in Terry v. Ohio, 392 U.S. 1 (1968).  The court added, “Without probable cause and a warrant, an officer is limited in what he can do.  He cannot arrest a suspect, he cannot conduct a broad search.”

My opinion?  Yaaaay!!

Many clients get arrested because police officers obtain evidence unlawfully.  It’s an outrage!  This case is beautiful.  I can’t wait to argue a Garvin motion in my future attempts to suppress unlawfully obtained evidence.   🙂

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.

White House Czar Calls for End to ‘War on Drugs’

Constitutional Rights, Drug Offenses, , ,

Unbelievable.  Awesome sign of the times.  Gil Kerlikowske, the new White House drug czar, signaled Wednesday his openness to rethinking the government’s approach to fighting drug use.

The Obama administration’s new drug czar says he wants to banish the idea that the U.S. is fighting “a war on drugs,” a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

“Regardless of how you try to explain to people it’s a ‘war on drugs’ or ‘war on product,’ people see a war as a war on them,” he said.  We’re not at war with people in this country.

Mr. Kerlikowske’s comments are a signal that the Obama administration is set to follow a more moderate — and likely more controversial — stance on the nation’s drug problems.  Prior administrations talked about pushing treatment and reducing demand while continuing to focus primarily on a tough criminal-justice approach.

My thoughts?  IT’S ABOUT TIME a U.S. drug czar made sense!!!

True story on Kerlikowske: I was living in Seattle when a big snow came.  Attending law school.  Walking around downtown Seattle with a friend.  A black SUV rolls by.  Stops by a car that was stuck in the snow.  Two police officers get out.  One looks highly decorated.  Both officers  push the skidding car off the ice.  It drives away, freed from its frozen trap.

I immediately recognized the decorated officer as then-Seattle Police Chief Gil Kerlikowske.  I say, “Yo man, that was cool!”  He smiles, salutes, and jumps back into the SUV.  Drives away.

As far as police officers go, Kerlikowske was a good one.  Had his head on straight.  Gained respect from Seattle’s black community.  He was an advocate, a reasonable guy, and bridged ideological differences.  Obama chose right.

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.