Category Archives: Drug Offenses

Search Incident to Arrest

Bellingham Defense Attorney, Drug Offenses, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Woman Caught With Drugs In Purse, Claims The Wind Did It - New Country 105.1

In State v. Richards, the WA Court of Appeals held that a search of an arrestee’s person, purses or handbags extends to closed, but not locked containers found on their person at the time of arrest.

BACKGROUND FACTS

On November 11, 2017, a loss protection officer at a retail store in Woodland, observed Richards placing store merchandise into her purse. The officer approached Richards after she left the store without paying for the items in her purse. Two police officers, who were waiting outside, detained Richards and escorted her to the loss protection office.  There, the officers arrested Richards and searched her purse.

During the search of the purse, the officers discovered the stolen merchandise and a closed, zippered pouch. They opened the pouch and searched it, looking for theft tools used for removing secure access devices. The pouch contained drug paraphernalia, foil residue, straws, and syringes.

The State charged Richards with unlawful possession of heroin. Richards filed a motion to suppress the contents of the pouch found in her purse. The trial court considered the evidence set out above and denied the motion. Richards subsequently was convicted of possession of heroin. She appeals her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals held that officers did not exceed the scope of a lawful search incident to arrest when they searched a closed pouch in Richards’s purse that she was carrying at the time of arrest. Accordingly, the Court of Appeals affirmed Richards’s conviction.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless one of the exceptions to the warrant requirement applies.

One exception to the warrant requirement is a search of a person incident to a lawful arrest of that person. Under this exception, an officer making a lawful custodial arrest has authority to search the person being arrested as well articles of the arrestee’s person such as clothing and personal effects.

“An article immediately associated with the arrestee’s person may be searched if the arrestee has actual possession of it at the time of a lawful custodial arrest,” reasoned the Court of Appeals. “This rule is referred to as the ‘time of arrest’ rule. Based on this rule, an officer may search a purse or a bag in the arrestee’s possession at the time of arrest.”

However, the Court of Appeals also reasoned that the search incident to arrest exception did not apply to the search of a locked box inside a backpack an arrestee was carrying at the time of the arrest. For example, in State v. VanNess, the court concluded that the locked box in the backpack could not be searched without a warrant because the arresting officer raised no concerns about his safety and there was no indication that the officer believed that the box would contain evidence relevant to the crime of arrest.

“The issue here is whether the same rule applies to a closed, unlocked container in Richards’s purse. We conclude that it does not.”

Ultimately, the Court of Appeals reasoned that the search of a closed, unlocked pouch in a purse in the arrestee’s possession simply does not implicate the type of significant privacy interests that would render the search of the pouch unlawful.

The Court concluded that officers searching a purse or bag incident to arrest may lawfully search closed, unlocked containers within that purse or bag. “Accordingly, we hold that the trial court did not err in denying Richards’s motion to suppress the evidence discovered in the search of the pouch in her purse.”

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges involving a search of persons, vehicles or homes. It’s critically important to retain experienced defense counsel like myself who are knowledgeable of Washington’s search and seizure laws.

Inventory Searches, Automatic Standing, & Stolen Vehicles.

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Evidence, Inventory Searches, Methamphetamine, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Property Crimes, Search Warrant, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Border Patrol agents find meth in car, arrest driver - Baltimore Sun

In State v. Peck, the WA Supreme Court found that persons found in possession of a stolen vehicle may challenge the search of that vehicle.  However, closed containers, other than items that “possess the same aura of privacy as a purse, shaving kit, or personal luggage” and locked containers, may be opened  during an inventory search of a stolen vehicle.  The search, of course, must not be used as a pretext for an investigatory search.

BACKGROUND FACTS

Two Kittitas County sheriffs deputies responded to a suspected theft in progress at a home in rural Ellensburg. When the deputies arrived, they discovered two individuals outside the home, along with a pickup truck stuck in the driveway’s unplowed snow. The deputies handcuffed the two men and eventually learned that they were Mr. Peck and Clark Tellvik. Two more deputies then arrived. One of them entered the pickup truck’s license plate into a law-enforcement database and learned that the truck had been reported stolen.

Officers impounded the vehicle. They searched the pickup without obtaining a search warrant because they believed that Peck and Tellvik did not have a reasonable expectation of privacy in a stolen vehicle. Police discovered methamphetamine and drug paraphernalia inside the vehicle.

Peck and Tellvik were charged with several crimes, including possession of a stolen vehicle and possession of a controlled substance with intent to deliver. The defendants moved to suppress the contraband found in the black zippered nylon case. The trial court denied the motion to suppress, finding the inventory search to be proper and finding no evidence of pretext. A jury subsequently convicted each defendant of the charged drug possession and stolen vehicle offenses. Peck and Tellvik were subsequently convicted. Both appealed their controlled substance convictions. The Court of Appeals reversed the trial court’s denial of the motion to suppress. The WA Supreme Court granted review.

ISSUES

  1. Whether defendants have standing to challenge the scope of a warrantless inventory search of a vehicle when that vehicle is stolen.
  2. Whether a proper inventory search extends to opening an innocuous, unlocked container of unknown ownership found in a stolen vehicle associated with defendants who were apprehended while burglarizing a home.

COURT’S ANALYSIS & CONCLUSIONS

  1. Defendants have standing to challenge the scope of a warrantless inventory search of a vehicle, even when that vehicle is stolen.

First, the WA Supreme Court held the defendants have standing to challenge the search. It reasoned that a defendant has automatic standing to challenge a search if (1) possession is an essential element of the charged offense and (2) the defendant was in possession
of the contraband at the time of the contested search or seizure. And a defendant
has automatic standing to challenge the legality of a seizure even though he or
she could not technically have a privacy interest in such property.

“Peck and Tellvik have automatic standing to challenge the inventory search,” said the Court. It reasoned that the first prong of the test was satisfied because both were charged with possession of a controlled substance with intent to deliver. Furthermore, the second prong is satisfied because Peck and Tellvik were in possession of the truck up until the time of the search. “As such, Peck and Tellvik have automatic standing to
challenge the warrantless inventory search of the black zippered nylon case.”

2. A proper inventory search extends to opening an unlocked container of unknown ownership found in a stolen vehicle.

The WA Supreme Court began by saying that warrantless searches are unreasonable. Despite that rule, a warrantless search is valid if one of the narrow exceptions to the warrant requirement applies. One of those narrow exceptions is a noninvestigatory inventory search. Inventory searches have long been recognized as a practical necessity.

“To be valid, inventory searches must be conducted in good faith and not as a pretext for an investigatory search.”

The court explained that Inventory searches are also limited in both scope and purpose. They are permissible because they (1) protect the vehicle owner’s (or occupants’) property, (2) protect law enforcement agencies/officers and temporary storage bailees from false claims of theft, and (3) protect police officers and the public from potential danger. Unlike a probable cause search and search incident to arrest, officers conducting an inventory search perform an administrative or caretaking function.

The Court reasoned that under these circumstances, it was proper for police to do more than merely inventory the unlocked nylon case as a sealed unit. First, the police knew the vehicle was stolen. Second, Peck and Tellvik were arrested while in the process of burglarizing a home and were observed taking items from the home and its surroundings. Responding officers testified that a purpose in conducting an inventory search of the truck was to determine ownership of both the truck and its various contents. Third, the search was not pretextual. And finally, the innocuous nature of the container at issue is important: a nylon case that looked like it contained CDs does not possess the same aura of privacy as a purse, shaving kit, or personal luggage.

“Here, where the vehicle was stolen, Peck and Tellvik were arrested immediately outside of a home that they were currently  burglarizing, and the trial court explicitly found no evidence of pretext, the search was proper.”

The WA Supreme Court concluded that under the facts of this case, the search was a lawful inventory search. Accordingly, it reversed the Court of Appeals and upheld the denial of the motion to suppress. Justices Gordon McCloud, Madsen, Yu, and Chief Justice Fairhurst dissented.

Please read my Legal Guide titled Search and Seizure and contact my office if you, a friend or family member face criminal charges involving vehicle searches. It is imperative to hire an experienced criminal defense attorney who will defend your rights.

Summer DUI Enforcement Patrols Begin

Bellingham Defense Attorney, Drug Offenses, Drug Recognition Expert, DUI, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington State Patrol, Whatcom County Criminal Defense, , , , ,

Be ready. As the deadliest time of the year for DUI crashes nears, police department across Washington will boost DUI patrols starting August 14th.
The Washington Traffic Commission just released data showing the deadliest time of year for DUI crashes tends to be before the Labor Day weekend. So starting today, police departments around the state will begin a nearly three-week long DUI emphasis.About 150 departments across the state will participate in patrols between Aug. 14 and Labor Day. Between 2013 and 2017, the deadliest months for DUI crashes were August and September, when 238 and 259 people died in crashes total, according to WTSC data:

“We conduct the ‘plan before you party’ campaign during the busy summer travel time because we want everyone to get home safe,” said WTSC impaired driving program manager Mark Medalen in a press release. “Planning ahead for a safe ride is especially important for the small number of Washington drivers who mix alcohol and cannabis.”

Along with extra patrols, the WTSC is placing signs in cannabis shops around the state to remind users not to drive impaired — and not to mix cannabis with alcohol. Between 2013 and 2017, about 75 percent of drivers in fatal crashes were also using alcohol or another drug, according to WTSC.

From 2013 to 2017 nearly 75 percent of cannabis-positive drivers in fatal crashes were also positive for other drugs and/or alcohol.  Poly-drug drivers are now the most common type of impaired driver involved in fatal crashes.

Responding to this trend, traffic safety officials are improving techniques used to test drivers for impairment from cannabis. For example, in King County, the Kent Police Department is participating in a Law Enforcement Phlebotomy training and certification program.  Police officers are trained to draw and test blood, avoiding a lengthy wait in the hospital where the blood is typically drawn from the suspect.

The WTSC is advising everyone in the state to make a transportation plan before consuming alcohol or drugs, whether it’s finding a designated driver or saving money for a ride-share. Otherwise, police in just about every city in Puget Sound — plus Washington State Patrol — will be out looking to arrest DUI drivers.

Please contact my office if you, a friend or family member are involved in DUI or any other alcohol-related criminal charges.

Vacate Your Pot Conviction

Bellingham Defense Attorney, Drug Offenses, Legislation, marijuana, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,
Image result for vacate pot marijuana conviction
You can now vacate your pot conviction.
On Sunday, June 28th the Marijuana Justice Initiative was signed by Governor Jay Inslee. Consequently, many people with misdemeanor or gross misdemeanor marijuana convictions in Washington state can apply to have those convictions wiped from their records. The new law expands on the governor’s pardon offer in a few ways:
  • A pardon does not vacate a conviction.
  • People with multiple marijuana misdemeanor convictions are eligible.
  • The date of the conviction doesn’t matter.
  • The new law applies to violations of municipal ordinances, not just state law.

If you’re looking to get a conviction vacated, and none of the above limitations apply to you, the process is relatively simple:

  1. Find the court where your conviction occurred. If you’ve been convicted in multiple courts, you’ll need to apply in each court separately.
  2. Fill out the proper paperwork. The form you’ll submit is called a Motion and Declaration for Order Vacating Marijuana Conviction.
  3. File your motion with the court clerk’s office and ask to schedule a hearing. Follow their instructions from there.

Once a court vacates a conviction, the person is clear of all penalties that resulted from it, and it can’t be considered during sentencing for any subsequent conviction, according to a legislative analysis of the bill. Further, a person who has a conviction vacated can state that they have never been convicted of the crime when applying for housing or employment.

My opinion? This is excellent, progressive step toward decriminalizing low-level drug crimes. Please contact my office if you, a friend or family member are charged with a drug crime. Although Washington State passed initiatives which legalized marijuana possession, it’s comforting that our politicians are moving forward with legislation that gives defendants opportunities to vacate low-level marijuana convictions.

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

Opioid Company Faces Federal Criminal Charges

Bellingham Defense Attorney, Drug Offenses, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Opoids, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for opioid company faces criminal charges

Great article from NBC by Tom Winter and Elisha Fieldstadt describes how a major opioid drug distribution company, its former chief executive and another top executive have been criminally charged in New York.
Rochester Drug Co-Operative, one of the top 10 largest drug distributors in the United States, was charged with conspiracy to violate narcotics laws, conspiracy to defraud the U.S., and willfully failing to file suspicious order reports. Laurence Doud III, the company’s former chief executive, and William Pietruszewski, the company’s former chief compliance officer, face these charges. Both Doud, 75, and Pietruszewski, 53, face life in prison.
“This prosecution is the first of its kind: Executives of a pharmaceutical distributor and the distributor itself have been charged with drug trafficking, trafficking the same drugs that are fueling the opioid epidemic that is ravaging this country,” U.S. Attorney Geoffrey Berman said. “Our office will do everything in its power to combat this epidemic, from street-level dealers to the executives who illegally distribute drugs from their boardrooms.”
According to the news article, between 2012 and 2016, Rochester Drug Co-Operative is accused of distributing tens of millions of doses of oxycodone, fentanyl and other opioids to pharmacies that its own compliance department found had no legitimate need for them.
The company identified about 8,300 “potentially suspicious ‘orders of interest,’ including thousands of oxycodone orders,” between 2012 and 2016, but only reported four, the U.S. attorney said.
In that time, Rochester Drug Co-Operative’s sales of oxycodone tablets grew almost nine-fold, from 4.7 million to 42.2 million, prosecutors said. Their fentanyl sales grew from approximately 63,000 dosages in 2012 to more than 1.3 million in 2016.
Also during that same time, Doud’s compensation ballooned to $1.5 million a year.
Rochester Drug Co-Operative announced it has entered into a plea agreement in the criminal case and a settlement in the civil case. The company has agreed to admit to the accusations, submit to supervision by an independent monitor, reform its compliance program and pay a $20 million fine.
My opinion? I hope these companies face justice. Every day, more than 130 people in the United States die after overdosing on opioids. The misuse of and addiction to opioids—including prescription pain relievers, heroin, and synthetic opioids such as fentanyl—is a serious national crisis that affects public health as well as social and economic welfare.
Please contact my office if you, a friend or family member are charged with a crime they allegedly committed while under the influence of opioids.  The defense of Diminished Capacity may exist to exonerate them of any crimes.

Credit Card Value

Access Devices, Bellingham Defense Attorney, Drug Offenses, Identity Theft, Methamphetamine, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Possession of Stolen Property, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for cancelled credit card

In State v. Sandoval, the WA Court of Appeals held that an access device (credit card) need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner.

BACKGROUND FACTS

Ms. Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it. After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

Eventually, the police found Sandoval and her husband in the stolen vehicle at the address
listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and
searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

At trial, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

The court defined an access device as, “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value. In the same instruction, the court stated, “The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time.

The jury convicted Sandoval on all charges except identity theft in the second degree. The
State dismissed that charge.

Sandoval appealed on the argument that an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 9A.56.010(1) defines “access device” as any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

Here, the Court of Appeals upheld the trial court’s definition containing the phrase “can be
used,” a phrase which is not statutorily defined. It reasoned that under State v. Schloredt, it was irrelevant whether a victim cancelled his or her account prior to a defendant’s arrest in determining whether stolen credit cards were “access devices” under the statute. Similar to the facts in Schloredt, it was irrelevant that the credit cards Ms. Sandoval possessed were cancelled by its lawful owner.

Also, the Court of Appeals rejected Sandoval’s argument that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge.

The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Furthermore, in an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings would have differed.

Here, the Court reasoned that Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

“Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense.”

Therefore, the Court reasoned that Sandoval was not prejudiced by her counsel’s failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

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.

Washington Crime Report Released

Bellingham Defense Attorney, Domestic Violence, Drug Offenses, felony, Homicide & Manslaughter, law enforcement, marijuana, misdemeanor, Mount Vernon Criminal Defense Attorney, Sex Crimes, Skagit County Criminal Defense, Studies, Uncategorized, Violent Crime, Washington State Patrol, Whatcom County Criminal Defense, , , , ,

Crime Report — The Downey Patriot

The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very 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.

Marijuana & Necessity

Bellingham Defense Attorney, Continuance, Discovery, Drug Offenses, Evidence, Expert Testimony, felony, marijuana, Motions In Limine, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for marijuana medically necessary

In State v. Ruelas, the WA Court of Appeals held that a defendant in possession of more than 40 grams of marijuana who asserts a necessity defense must present a medical expert witness to support the defense.

BACKGROUND FACTS

On November 10, 2015, Sergeant Garcia stopped Mr. Ruelas for speeding. Mr. Ruelas rolled down his window and gave Sergeant Garcia his license and registration. Sergeant Garcia smelled marijuana coming from the pickup truck. He asked Mr. Ruelas about the smell and asked him to roll down his rear window. Mr. Ruelas complied, and Sergeant Garcia saw a large garbage bag containing marijuana. Sergeant Garcia then arrested Mr. Ruelas for felony possession of marijuana.

Mr. Ruelas said he had a medical marijuana card but did not provide one. Sergeant Garcia then read Mr. Ruelas his Miranda rights.

On February 26, 2016, the State charged Mr. Ruelas with one count of possession of marijuana over 40 grams.

On June 13, 2016, the trial court held a CrR 3.5 hearing. The court found that Mr. Ruelas’s initial pre-Miranda statement was the result of a routine processing question and that his additional statements were made either spontaneously and not in response to a question likely to produce an incriminating response. The court denied Mr. Ruelas’s suppression motion. After the court’s ruling, Mr. Ruelas requested a continuance to find an expert witness.

After two more continuances, on October 18, 2016, Mr. Ruelas filed his final witness list. However, the list did not include a medical expert.

On October 25, 2016, trial began. The court addressed motions in limine and questioned Mr. Ruelas about his defense of medical necessity. Mr. Ruelas explained that he was asserting the common law defense of medical necessity, not the statutory defense under the Washington State Medical Use of Cannabis Act. The State objected to the defense on the basis that Mr. Ruelas could not lay a proper foundation without having a medical expert testify. The court agreed, and did not allow testimony from Mr. Ruelas’s expert.

The trial resumed, closing arguments were given, and the jury found Mr. Ruelas guilty. He appealed.

COURT’S ANALYSIS & DISCUSSION

The WA Court of Appeals found that the Necessity defense required medical testimony. It reasoned that a defendant asserting the necessity defense must prove four elements by a preponderance of the evidence. The four elements are: (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize the harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative was available that is as effective as marijuana.

Here, the Court of Appeals reasoned that the defendant was required to show corroborating medical evidence that no other legal drugs were as effective in minimizing the effects of the disease. Furthermore, it reasoned that it made sense that the expert could testify to knowing the qualities of other drugs, not just the personal preference of the defendant.

The Court of Appeals also disagreed with Mr. Ruelas’s arguments that the trial court wrongfully disallowed Mr. Ruelas’s expert witness from testifying. In fact, the Court actually addressed whether Mr. Ruelas himself should be sanctioned for violating the discovery rule that parties must disclose their witnesses well before trial begins:

“A trial court may sanction a criminal defendant under CrR 4.7(h)(7)(i) for failing to comply with discovery deadlines by excluding the testimony of a defense witness.”

Here, however, the trial court did not sanction Mr. Ruelas’s for the late disclosure of his expert witness.

“Our review of the record convinces us that Mr. Ruelas did not act willfully or in bad faith,” said the Court of Appeals. “Mr. Ruelas explained that it was difficult to obtain his mother’s medical records, which Dr. Carter needed to review. Mr. Ruelas also expressed difficulty in communicating with Dr. Carter, who he described as very busy.”

Nevertheless, the Court of Appeals also rejected Ruelas’s arguments that the trial court abused its discretion when it precluded Ruelas’s expert witness from testifying. “Mr. Ruelas does not cite any authority that holds that a trial court abuses its discretion when it precludes an expert disclosed during trial from testifying,” said the Court of Appeals. “We presume there is no authority.”

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.

Car Stop & Purse Search

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Fourth Amendment, law enforcement, Mount Vernon Criminal Defense Attorney, police, Reasonable Suspicion, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Traffic Infractions, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Should Cops Be Allowed to Rip Up Your Stuff While Looking for Drugs? | The New Republic

In State v. Lee, the WA Court of Appeals held that a passenger’s consent to a search of her purse was not spoiled by police conduct during the traffic stop.

BACKGROUND FACTS

Defendant Ms. Lee was the front seat passenger in a car driven by Mr. Peterman. Detective Tilleson initiated a traffic stop for two traffic infractions. Detective Tilleson asked Peterman for his identification, learned his license was suspended, and arrested him for first degree driving while license suspended or revoked. Peterman consented to a search of the car.

Detective Tilleson told Ms. Lee to step out to facilitate his search of the car. She left her purse inside the car. Detective Tilleson ran Lee’s identification information to determine if she had a driver’s license so she could drive the car if it was not impounded. He learned Lee had a valid driver’s license and a conviction for possession of a controlled substance.

Lee began to pace back and forth near the car. At some point, Detective Fryberg directed Lee to sit on a nearby curb. During a conversation, Lee told Detective Tilleson the purse in the car was hers. Detective Tilleson asked Lee for permission to search her purse, telling her that he was asking “due to her prior drug conviction.” He also gave Lee warnings pursuant to State v. Ferrier that she was not obligated to consent and that she could revoke consent or limit the scope of the search at any time.

Lee consented to the search. When Detective Tilleson asked Lee if there was anything in her purse he should be concerned about, she said there was some heroin inside. Detectives found heroin and methamphetamine in her purse, advised Lee of her Miranda rights, and arrested her for possession of a controlled substance with intent to manufacture or deliver.

Before trial, Lee moved to suppress the evidence obtained from the search of her purse. The trial court denied Lee’s motion to suppress the results of the search of her purse. The court found “the testimony of the detectives involved was more credible than the defendant’s testimony. The trial court also determined that all of Lee’s statements were voluntary and that none were coerced. Finally, the court concluded that Lee validly consented to a search of her purse.

At the bench trial, the judge found Lee guilty as charged. Lee appealed on arguments that she did not validly consent to the search of her purse because the detectives unlawfully seized her.

LEGAL ISSUE

Whether police exceeded the reasonable scope and duration of the traffic stop by asking Ms. Lee’s consent to search her purse while mentioning her prior drug conviction.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals stated that both the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution prohibit a warrantless search or seizure unless an exception applies. Voluntary consent is an exception to the warrant requirement.

“But an otherwise voluntary consent may be vitiated by an unlawful seizure,” reasoned the court of Appeals. “When analyzing a passenger’s consent to search the purse she left in
the car, we start with the traffic stop that led to the search.”

Here, the Court said the Fourth Amendment and WA Constitution both recognize an
investigative stop exception to the warrant requirement as set forth in the landmark U.S. Supreme Court case, Terry v. Ohio. “The rationale of Terry applies by analogy to traffic stops applies by analogy to traffic stops,” said the Court of Appeals.

The Court of Appeals explained that the proper scope of a Terry stop depends on the purpose of the stop, the amount of physical intrusion upon the suspect’s liberty, and the length of time the suspect is detained. A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. “Once that purpose is fulfilled, the stop must end,” reasoned the Court.

Ultimately, the Court found that once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger – here, Ms. Lee – if she consented to a search of the purse she left in the car. The detectives legitimately checked Lee’s identification to determine whether she was a licensed driver and could drive the car from the scene following Peterson’s arrest. And the search of the purse occurred roughly 18 minutes after the traffic stop began.

“We conclude Lee’s voluntary consent to search her purse was not vitiated by police conduct at the traffic stop. Specifically, under the totality of the circumstances, the police did not exceed the reasonable scope and duration of the traffic stop.”

In addition, the Court reasoned that the mention of Lee’s prior drug conviction must also be considered as part of the totality of the circumstances. “Here, there was a single mention of the conviction in passing,” said the Court. “There was no physical intrusion upon Lee.”

With that, the Court of Appeals concluded that the police did not exceed the reasonable scope or duration of the traffic stop under the totality of the circumstances. Therefore, Lee failed to establish that her voluntary consent to search her purse was vitiated by police conduct. Her conviction was affirmed.

Please contact my office if you, a friend or family member are charged with a crime involving a questionable search and seizure by the police. Hiring competent and experienced defense counsel is the first and best step toward justice.

Pot Convictions Pardoned

Bellingham Defense Attorney, Drug Offenses, marijuana, Mount Vernon Criminal Defense Attorney, Race & Law, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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Informative article by Jim Brunner and of the Seattle Times reports that Gov. Jay Inslee will offer pardons to thousands of people with misdemeanor marijuana convictions, in an effort to help them move on from minor criminal records that can hinder housing and job prospects.
Under the plan, Inslee will pardon anyone who has an otherwise clean criminal record but with a sole conviction as an adult for misdemeanor possession of marijuana in Washington state.
Such a conviction must have occurred under state law, not a local ordinance, between Jan. 1, 1998, and Dec. 5, 2012, the effective date of Washington’s voter-approved Initiative 502, which legalized marijuana possession for users age 21 and older. The governor’s office estimates 3,500 people will be eligible for the pardons under its criteria.
Inslee announced his plan, called the Marijuana Justice Initiative, Friday morning in SeaTac at the Washington State Cannabis Summit, an annual conference sponsored by the legal marijuana industry.
“We shouldn’t be punishing people for something that is no longer illegal behavior in the state of Washington,” Inslee said at the event. He said he believes there is broad public support for the expedited pardon process.
When running for governor as a Democrat in 2012, Inslee opposed I-502, the marijuana-legalization measure. But he has since grown boosterish about the state’s marijuana trade, boasting to talk-show host Bill Maher last year that “we’ve got the best weed in the United States of America.”
Sheri Sawyer, a senior policy adviser to the governor, said Inslee’s pardon plan was motivated in part by the disproportionate impact of drug convictions on people of color.

People seeking a pardon can apply by filling out a simple petition form on the governor’s office’s website.

The new pardon process will allow applicants to skip the usual step of making a request to the state’s Clemency and Pardons Board, which typically reviews requests and makes recommendations to the governor, said Tip Wonhoff, the governor’s deputy general counsel.

For people granted pardons, the governor’s office will ask the State Patrol to remove those convictions from the criminal-history reports that are available to the public, though the records will remain available to law enforcement, according to a summary of the pardon plan provided by the governor’s office. Records also will remain in court files unless petitioners successfully petition to have them vacated by the court that imposed the sentence.

The pardon announcement comes amid Inslee’s well-publicized explorations of a 2020 presidential run. While relatively unknown in the field of potential Democratic contenders, Inslee has formed a federal political-action committee and garnered attention for making climate change the centerpiece of his potential national campaign.

Inslee’s advisers said he supports more sweeping legislation that would allow anyone with a misdemeanor adult marijuana-possession conviction to have it removed from their records.

A bill proposed in 2017 by Rep. Joe Fitzgibbon, D-Burien, would require sentencing courts to grant any person’s request to vacate such convictions. The proposal received a hearing but did not advance in the Legislature.

The city of Seattle has taken action to expunge old marijuana records. After a request by City Attorney Pete Holmes, Seattle Municipal Court judges last year moved to vacate convictions and dismiss charges for as many as 542 people prosecuted for marijuana possession between 1996 and 2010, when Holmes’ office ceased prosecuting marijuana possession.

My opinion? Kudos for Governor Inslee for making a bold step in the right direction. Washington has moved beyond prosecuting people for minor marijuana offenses. It seems right to vacate criminal convictions for these same offenses.

Please contact my office if you, a friend or family member face Drug Charges. Being convicted can limit career, housing and travel opportunities. Hiring qualified counsel is the first step toward gaining justice.