Category Archives: Evidence

State v. Pearson: DUI Blood Draw Held Unlawful

Bellingham Defense Attorney, Drug Offenses, Drug Recognition Expert, DUI, Evidence, law enforcement, marijuana, misdemeanor, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Pearson the WA Court of Appeals Division I held that (1) exigent circumstances did not support a warrantless blood draw for marijuana, (2) it’s reversible error to discuss the .05 THC limit in a DUI case that arose prior to the passage of I-502.

Defendant Tamisha Pearson was a medicinal marijuana patient due to numerous health problems. She struck a pedestrian with her car, pulled over and called 911. Seattle Police Officers arrived. Officer Jongma was a drug recognition expert. Pearson initially denied consuming any drugs or alcohol that day. She agreed to perform field sobriety tests.

Some of Pearson’s behavior during the sobriety tests indicated she was impaired. Pearson told Officer Jongma that she is authorized to consume medicinal marijuana and that she had smoked earlier in the day. Based on that, Officer Jongma arrested Pearson for suspicion of Vehicular Assault and DUI.

Officer Jongma transported Pearson to Harborview Medical Center for a blood draw. They arrived at the hospital at approximately 5:26 pm—2 hours after the initial collision and 1 hour and 20 minutes after Officer Jongma arrived on the scene. At approximately 5:50 pm, a nurse drew Pearson’s blood without her consent and without a warrant. A toxicologist analyzed Pearson’s blood sample for cannabinoids on February 21, 2012. The analysis determined Pearson’s THC concentration was approximately 20 nanograms.

On August 18, 2012, the City of Seattle charged Pearson in Seattle Municipal Court on one count of driving while under the influence of an intoxicating drug. The court initially granted Pearson’s motion to suppress the blood evidence.

TRIAL

At trial, the City introduced testimony of forensic toxicologist Justin Knoy of the Washington State Toxicology Laboratory. Over Pearson’s objection, the City elicited testimony from Knoy that the per se legal limit of THC concentration under Washington law was 5 nanograms. At the time, however, no per se limit for THC concentration in Washington existed when the accident occurred. The jury found Pearson guilty of DUI.

ISSUES ON APPEAL

The Court of Appeals addressed four issues: (1) whether exigent circumstances existed to justify the warrantless extraction of Pearson’s blood, (2) whether exigent circumstances existed to justify the warrantless testing of Pearson’s blood, (3) whether the trial court erred when it failed to include Pearson’s proposed jury instruction, and (4) whether the trial court erred when it permitted Knoy to testify that the per se legal limit for THC concentration was 5 nanograms.

1.Exigent Circumstances did NOT Exist to Justify Extracting & Testing Pearson’s Blood.

First, the Court of Appeals decided the City failed to show that obtaining a warrant would have significantly delayed collecting a blood sample. It reasoned that the natural dissipation of THC in Pearson’s bloodstream alone did not constitute an exigency sufficient to bypass the warrant requirement.

2. Trial Court Mistakenly Admitted Testimony From Toxicologist.

Second, the Court of Appeals decided the trial mistakenly admitted testimony from the toxicologist regarding THC limits. At the time, evidence of the .05 legal THC limit was NOT in effect when the offense occurred and was irrelevant to the central question at trial—whether Pearson’s ability to drive was lessened in any appreciable degree by her use of marijuana. The court reasoned the evidence was highly prejudicial because the blood test showed that Pearson had a THC concentration of 20 nanograms. Consequently, evidence of the current per se legal THC limit of 5 nanograms invited the jury to retroactively apply law that was not in effect at the time of the alleged offense and conclude that the blood evidence alone was sufficient to prove guilt.

3. The Defendant’s Jury Instruction Was Properly Denied. 

At trial, the lower court denied the Defendant’s proposed jury instruction:

It is not unlawful for a person to consume a drug and drive. The law recognizes that a person may have consumed a drug and yet not be under the influence of it. It is not enough to prove merely that a driver had consumed a drug.

The Court of Appeals held that, under these circumstances, the trial court did not abuse its discretion when it refused to include Pearson’s proposed jury instruction because she was able to argue her theory of the case based on the instructions given.

In conclusion, the Court of Appeals reversed the Defendant’s conviction and remanded it back to the lower court.

My opinion? Good rulings; especially the one regarding the mistakenly-admitted testimony from the Toxicologist. I-502’s legal limits regarding THC was not in effect at that time. Having a witness testify to limits was, therefore, a mistake.

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. Robison: Implied Consent & Pot DUI

Bellingham Defense Attorney, Blood Test, Drug Offenses, Due Process, DUI, Evidence, Implied Consent, Legislation, marijuana, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Robison,  the WA Court of Appeals Division I held that a BAC test requires suppression when the officer giving the breath to a driver suspected of marijuana DUI fails to provide that driver with Implied Consent warnings required by that statute.

On June 29, 2013, Washington State Patrol Trooper B.S. Hyatt stopped Darren J. Robison for traffic violations. Trooper Hyatt smelled intoxicants and marijuana. Trooper Hyatt asked how long it had been since Robison had smoked marijuana. Robison responded that it had been a couple of hours. Trooper Hyatt arrested Robison. At the Tulalip Police Department, officers read Robison an “Implied Consent Warning for Breath” form, which Robison stated he understood and signed.

The form included warnings only about alcohol and did not include any marijuana-related warnings. The two breath tests given Robison both produced results over the legal limit. The State charged Robison with DUI. Robison asked the district court to suppress evidence based on an illegal stop and to suppress the breath test because Robison did not receive all required implied consent warnings.

The district court denied the motion. It concluded that Trooper Hyatt had probable cause to stop Robison. The district court also took judicial notice that the breath test used cannot detect THC, and that its purpose was to determine the alcohol concentration in Robison’s breath. The district court decided that the implied consent warnings given accurately informed Robison of the consequences of the breath tests, which “were all the warnings that were legally required on the date of violation given the decision facing the defendant.” The district court found Robison guilty but stayed his sentence pending his appeal. Robison appealed to the superior court.

The superior court reversed the district court. It found that the marijuana-related warnings were a significant part of the required implied consent warnings and the failure to give these warnings under the circumstances made the warnings given incomplete and misleading. The superior court suppressed the test results and remanded the case to the district court for further proceedings consistent with its decision.

Ultimately, the WA Court of Appeals granted the State’s request for discretionary review of the superior court’s decision.

First, the Court of Appeals gave background on how police officers apply Washington’s Implied Consent Laws in DUI investigations. Before giving a breath test to a person reasonably believed to be driving under the influence, an officer must provide that person with certain warnings required by statute. Specifically, an officer must inform the driver of his right to refuse the test or to have additional tests done.

The Court reasoned that the officer’s warning must also state that refusal to take the test will result in license revocation, that the refusal may be used at a criminal trial, and that the driver may be eligible for an ignition interlock license. Pertinent to this case, the officer must also warn about the consequences of certain test results. This warning has changed several times in recent years.

The court further explained that in 2012, Washington voters enacted Initiative 502, which legalized some uses of marijuana. This initiative also amended Washington’s Implied Consent laws by adding a warning about marijuana test results.

In this case, Trooper Hyatt warned Robison about the consequences of test results showing an alcohol concentration in his breath. However, Trooper Hyatt failed to warn Robison of the consequences of test results showing a prohibited level of THC concentration in his blood. Consequently, the Court of Appeals reasoned that the BAC test was properly suppressed because of this omission.

Additionally, the Court rejected the State’s argument that (1) an arresting officer has discretion to edit implied consent warnings as he deems appropriate to the facts of a case, and (2) the officer’s incomplete warning was harmless. Here, Robison smelled of marijuana when arrested and admitted smoking marijuana to the arresting officer. “Under these circumstances, we cannot conclude beyond a reasonable doubt that Robison would have agreed to take the breath test had he received the THC warning.”

The Court of Appeals concluded that because the State cannot show that an officer gave Robison all the statutorily required warnings, it cannot establish the foundation required for admission of the breath tests given to him. “While cases have characterized this result as suppression, when the State cannot show that it complied with the implied consent statute, the State has failed to meet its burden of proof for admission of evidence it offers to prove guilt. The defendant does not have to show prejudice in this circumstance.”

With that, the Court of Appeals affirmed the superior court’s decision to suppress Robison’s BAC test.

My opinion? Good decision.  DUI investigations involving Implied Consent Warnings must keep up with today’s legislative amendments. The law is the law.

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. Kohonen: No Proof of Cyberstalking

Bellingham Defense Attorney, Constitutional Rights, Cyberstalking, Due Process, Evidence, Juvenile, misdemeanor, Social Media, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Kohonen, Division I of the WA Court of Appeals decided the State failed to prove that a defendant’s tweets constituted “true threats” sufficient to support a conviction for Cyberstalking.

When the defendant J.K. was in eighth grade, a classmate, S.G., informed a teacher that another student was behaving oddly. As a result, the other student and J.K. were both suspended from school. J.K. and S.G. had no other interaction until the incident at the center of this case.

Two years later, when J.K. and S.G. were sophomores in high school, they shared a first period class. One morning, J.K. saw S.G. in class and was reminded of the incident two years before. She quickly posted two short messages, known as tweets, via the web site Twitter. The first read, “Tbh (to be honest), I still want to punch you in the throat even tho it was 2 years ago.” The second read, “#[S.G.]mustdie.”

Eventually, J.K. was taken from class to the school administration office, where she was confronted her with the tweets. J.K. immediately admitted that she had written and posted the tweets but stated that she had not intended for her actions to harm S.G. Later, J.K. also explained that she posted tweets frequently. She used Twitter as a “virtual diary,” posting her thoughts, reactions, feelings, and more. She testified that she sent the messages quickly and without thinking, as a fleeting expression of her agitation at the memory from middle school. Although she was aware that the posts were public, and that she had approximately 100 people who followed her, she testified that she did not consider the potential impact her tweets might have on S.G.

J.K. was charged with one count of Cyberstalking. After trial, the juvenile commissioner adjudicated J.K. guilty as charged, finding that J.K. had acted with the intent to embarrass, harass, and torment S.G. and that she was not credible on the question of whether she had considered the effect the tweets could have before posting them. The court also concluded that the tweets constituted a true threat. J.K. was sentenced to six months of probation and 30 hours of community service. The superior court denied J.K.’s motion to revise. Division I accepted her appeal.

The Court of Appeals held there was insufficient evidence that the tweets in question constituted “true threats,” as required by the federal and state constitutions.

The Court reasoned that due process clauses of the United States Constitution and WA Constitution require that the government prove every element of a crime beyond a reasonable doubt. The critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be to determine whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt.  The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The Court further reasoned that in order to convict J.K. of Cyberstalking, the State was required to prove each of the following elements beyond a reasonable doubt: (1) that J.K. made an electronic communication to another person, (2) that, at the time J.K. made the electronic communication, she specifically intended to harass, intimidate, torment, or embarrass another person, and (3) that J.K. threatened to inflict injury on the person to whom the electronic communication was made.

Under the circumstances, the Tweets were not true threats:

“J.K.’s tweets bear the signs of—admittedly mean-spirited—hyperbolic expressions of frustration, and that is precisely how they were received. A reasonable person in J.K.’s position would not have anticipated a different reception. Therefore, insufficient evidence was presented that the tweets constituted true threats.”

On that, the Court of Appeals reversed the conviction and dismissed the case.

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

Stoned Drivers Hit Test Course To Evaluate Marijuana DUI Limits

Bellingham Defense Attorney, Department of Licensing, Drug Offenses, Drug Recognition Expert, DUI, Evidence, Ignition Interlock Device, law enforcement, misdemeanor, police, Uncategorized, Washington State Patrol, Whatcom County Criminal Defense, , ,

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An article from the Denver Huffington Post addressed an interesting question regarding the regulation of legal marijuana: how high is too high to drive?

Given the lack of precedent, Washington TV station KIRO opted to observe actions over words. The station assembled a group of volunteers, had them smoke pot (appropriately, the strain was called “blueberry train wreck”), and set them loose on a driving test course.

Here’s the video.

A handful of police officers stood nearby, watching any telltale signs of stoned driving. Also, a driving school instructor sat in the passenger’s seat, ready to take the wheel or stomp the brake pedal at a moment’s notice.

Unfortunately, the results (while entertaining) don’t add much clarity to the question at all. A regular smoker of marijuana tested above the legal limit to begin with, yet drove without much of a problem (at least initially). Two casual smokers also navigated the course without incident. (Spoiler alert: after smoking more marijuana, things devolve quickly).

In 2012, Colorado legislators declined to pass a law that would have limited drivers to 5 nanograms of THC, the psychoactive ingredient in marijuana, per milliliter of blood.

“This is a bit of unprecedented territory, so trying to find the right approach has proven difficult and cumbersome,” explained Rep. Dan Pabon, a lawmaker on Colorado’s marijuana-legalizing task force, to CBS News in 2012.

Washington lawmakers, meanwhile, passed a law in 2012 setting the threshold for legal impairment at 5 nanograms of THC, reports NPR.

Ultimately, though, it comes down to common sense. Explains Bob Calkins, a Washington State Patrol spokesman, to The Oregonian, “We don’t just pull people over and draw blood… If you’re driving OK, we’re not going pull you over. But driving impaired is still driving impaired.”

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

State v. Keodara: Overbroad Search Warrant for Cell Phone

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Due Process, Eighth Amendment, Evidence, felony, Homicide & Manslaughter, Ineffective Assistance, Probable Cause, Search and Seizure, Search Warrant, Sentencing, Technology, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Keodara, the WA Court of Appeals ruled that a search warrant was overbroad in violation of the particularity requirement because it allowed police to search a cell phone “for items that had no association with any criminal activity and for which there was no probable cause whatsoever.”

In 2011, the defendant Say Keodara was involved in a shooting at a bus stop.  Several weeks later, police arrested him for an unrelated incident. They searched his backpack and found his cell phone. Outside the backpack police found drugs, drug packaging and drug paraphernalia.  An officer submitted an affidavit in support of a search warrant for the contents of the cell phone.

The affidavit made several generalizations about drug dealers and gang members in support of the officer’s conclusion that there was evidence of crime on the cell phone. The judge issue the warrant pursuant to the affidavit, which ultimately allowed police to search Keodara’s entire phone without any limitations.  Police searched the phone and found evidence that the State used when trying Mr. Keodara for the shooting at the bus stop.

Keodara was charged with Murder in the First Degree, three counts of Assault in the First Degree (each with a separate firearm enhancement), and Unlawful Possession of a Firearm in the First Degree. He was convicted on all counts and sentenced to 831 months of prison (69.25 years).

On appeal, Keodara argued that the evidence from his phone should have been suppressed because the search warrant violated the Fourth Amendment to the United States Constitution and art. I, §7 of the Washington State Constitution. He also argued that his substantial prison sentence violated the Eighth Amendment.

Ultimately, the court held that although the search of Keodara’s phone violated the federal
constitution, the failure to suppress the evidence was harmless. It also held that Keodara’s sentence violated the 8th Amendment because the court failed to Keodara’s youth and other age-related factors into account. Accordingly, the court affirmed Keodara’s conviction but remanded for a new sentencing hearing.

In reaching its decision, the court reasoned that a warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search. In this case, the affidavit for the warrant for Keodara’s phone contained blanket statements about what certain groups of offenders tend to do and what information they tend to store in particular places. Furthermore, the warrant’s language also allowed Keodara’s phone to be searched for items that had no association with any criminal activity and for which there was no probable cause whatsoever. The court also said the following:

Here, no evidence was seized that would have linked Keodara’s phone to the crimes listed in the warrant-unlawful possession of firearms, possession with intent to deliver or sell narcotics, or assault. Nothing in the record suggests that anyone saw Keodara use the phone to make calls or take photos. In addition, the phone was found in a backpack, separate from the drug paraphernalia or the pistol. There was no indication that evidence of firearms or drugs were found with the phone. We conclude that the warrant was overbroad and failed to satisfy the Fourth Amendment’s particularity requirement.

Nevertheless, the Court of Appeals also held that the trial court committed harmless error in admitting evidence police found on the phone:

Here, the untainted evidence of Keodara’s guilt was strong. Cellular phone tower records placed him near the location of the shooting, two eyewitnesses identified him, and another witness testified that Keodara contacted him and told him about the shooting. We find that the trial court’s denial of Keodara’s motion to suppress does not warrant reversal and, accordingly, we affirm his convictions.

The Court of Appeals also addressed the issue of whether Keodara’s sentence violated the Eighth Amendment. In short, the court said, “Yes.” It reasoned that the trial court did not take into account that Keodara was a juvenile at the time he committed the crimes or consider other age related factors that weigh on culpability or his capacity for rehabilitation. Based on that, the Court concluded that the sentence imposed in this case violated Keodar’s constitutional rights under the Eighth Amendment. Accordingly, the Court of Appeals vacated the sentence and remanded for a new sentencing hearing.

My opinion? Good decision. It appears that, more and more, our courts are rightfully acknowledging a Defendant’s youth at sentencing.

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.

Wire Cutters Are NOT Theft Tools.

Bellingham Defense Attorney, Evidence, Knapstad Motion, Retail Theft, Theft, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Larson, the WA Supreme Court overruled the WA Court of Appeals and decided that the crime of Retail Theft With Special Circumstances under RCW 9A.56.360(1)(b), which elevates theft to a more serious offense when the defendant is in possession of “an item, article, implement or device designed to overcome security systems,” only applies to an item that is created – whether by the manufacturer or the defendant – with the specific purpose of disabling or evading security systems.

Defendant Zachary Larson attempted to steal a $32 pair of shoes from a Marshall’s store in Bellingham, WA. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of Retail Theft with Special circumstances, which criminalizes the commission of retail theft while in possession of a “device designed to overcome security systems.”

While the case was pending, Larson argued a Knapstad motion to dismiss. The trial court denied the motion and found Larson guilty as charged. He was sentenced to 60 days of confinement. Larson appealed. Ultimately, the Court of Appeals confirmed Larson’s conviction. Larson appealed again to the WA Supreme Court.

The WA Supreme Court addressed the specific issue of whether ordinary wire cutters are “designed to overcome security systems” within the context of retail theft.

The Court reasoned that whenever it must interpret the meaning and scope of a statute, “our fundamental objective is to determine and give effect to the intent of the legislature.” Furthermore,  lined bags and tag removers – of which the Defendant did not possess – are highly specialized tools with little to no utility outside of the commission of retail theft. “From this fact, it can be reasonably inferred that there is no reason a person would be in possession of these items except to facilitate retail theft.”

Furthermore, reasoned the court we must interpret statutes to avoid absurd results:

For example, where a person slips a stolen item into his pocket to hide it from a store’s security camera, the pocket has arguably become a “device designed to overcome security systems.” Similarly, a person who happens to have in her pocket a pair of nail clippers, a Leatherman multi tool, or any other tool that people commonly carry with them, at the time she shoplifts would be guilty of retail theft with extenuating circumstances. As these practical examples demonstrate, the State’s over-inclusive approach belies the statute’s primary purpose of capturing retail theft that occurs under certain aggravating circumstances.

The Court concluded that the plain language of the Retail Theft statute indicates that the legislature intended the statute to have a narrow scope:

We hold that “designed to overcome security systems” for the purposes of retail theft . . . is limited to those items, articles, implements, or devices created-whether by the defendant or manufacturer-with the specialized purpose of overcoming security systems. Ordinary tools, such as pliers or the wire cutters used by Larson, do not fall within the scope . . .  The evidence is insufficient to support Larson’s conviction for third degree retail theft with extenuating circumstances, and we reverse the Court of Appeals.

My opinion? Good decision. In interpreting the statute, the WA Supreme Court correctly applied a narrow scope because, quite frankly, any household tool found in the pockets of an alleged thief can be viewed as a tool “designed to overcome security systems.” This is unjust. Retail Theft With Special Circumstances is a Class C felony exposing defendants up to 5 years prison and a $10,000 fine. That’s quite serious. Do we want to punish thieves with Class C felonies for stealing shoes from Marshall’s store while carrying a Swiss Army knife in their pocket? Do these circumstances warrant sending people to prison? No. The WA Supreme Court got this one 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.

Lower Legal Alcohol Limit?

Bellingham Defense Attorney, Boating Under the Influence, Deferred Prosecution, Department of Licensing, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, Ignition Interlock Device, marijuana, misdemeanor, Studies, Terry Stop, Washington State Patrol, Whatcom County Criminal Defense, , ,

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The National Transportation Safety Board wants the nationwide legal limit of .08 cut almost in half to .05, in an effort to save more lives.

Oddly, Mothers Against Drunk Driving (MADD), the nation’s most prominent advocacy group against drunk driving, does not support the legislation. MADD says there’s not enough data to show it would make much of a difference.

“Until we know that and can compare that and have an intellectual conversation on that, we want to focus on what we know is effective,” said Jason Derscheid, the Executive Director of MADD North Texas.

The organization most recently helped pass an interlock ignition law in Texas, allowing DWI offenders to have a device installed on their car. MADD has found that the alternative, suspending an offender’s license, doesn’t prevent them from continuing to drink and drive.

It’s advocating for similar laws to be passed in all 50 states.

Despite its lack of support for lowering the legal limit, MADD says it does not condone any level of drinking of driving.

“The only safe way to get home is to have a non-drinking, designated driver,” said Derscheid.

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

 

U.S. Supreme Court to Update DUI Procedures

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Drug Recognition Expert, Due Process, DUI, Evidence, law enforcement, marijuana, misdemeanor, police, Search and Seizure, Search Warrant, Whatcom County Criminal Defense, , ,


The US Supreme Court plans to update the rules for prosecuting individuals accused of drunk driving by reviewing a trio of cases dealing with “Refusal” statutes.

In North Dakota, a state law makes it a crime for a motorist to refuse to take “any” type of test — blood, alcohol or urine — used to prosecute driving under the influence (DUI) cases. The court will decide the constitutionality of this provision in the context of two cases, Birchfield v. North Dakota and Beylund v. North Dakota, each of which presents the same question from a slightly different angle.

In Beylund, motorist Steve Michael Beylund agreed to take a blood test after being threatened with criminal penalties if he refused. In Birchfield, motorist Danny Birchfield refused to take a breath test. The highest court in North Dakota reviewed the existing legal precedent and found no reason to overturn the refusal law.

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

The North Dakota justices wrote, “Birchfield has not drawn our attention to any appellate court decisions striking down criminal refusal statutes, and we have found that since the U.S. Supreme Court’s ruling in McNeely, criminal refusal statutes have continued to withstand Fourth Amendment challenges, particularly in Minnesota.”

Last month, however, in Hawaii v. Won, the Hawaii Supreme Court cited the US Supreme Court’s reasoning in finding refusal statutes as unconstitutional. In light of McNeely, Hawaii’s justices decided the US Supreme Court had clearly ordered law enforcement to obtain a warrant before compelling a “search” of a person’s blood, as the Fourth Amendment requires.

The US Supreme Court will tackle the different rulings from these States in the context of a third case, Bernard v. Minnesota, which deals with that state’s law treating a breath test as a “search incident to arrest.” Here, William Robert Bernard Jr used his truck to pull a boat out of the water. Officers believed he was DUI. After Bernard was arrested, he refused a breath test.

At any rate, the U.S. Supreme Court will soon decide whether criminalized refusal statutes represent a DUI exception to the Constitution.

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. Cherry: Consent & Self-Incrimination

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In State v. Cherry, the WA Court of Appeals Division II decided that a police officer’s questions to the passengers of a vehicle – which were intended to determine whether one of the passengers could safely remove the defendant’s car from the scene – were routine booking questions and did not violate the defendant’s Fifth Amendment rights.

Defendant Mathew Cherry was arrested for driving with a suspended license. He was driving two passengers. When the police officer asked Cherry to confirm who was in the car, Cherry identified his two passengers. When asked whether either passenger could take the car, Cherry responded that neither had a license and that he did not know anyone who did. The officer told Cherry that his car would be impounded.

Cherry consented to a search of his car. A pipe containing methamphetamine residue was found. When Cherry was booked into jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was seen between his legs.

The State charged Cherry with Unlawful Possession of a Controlled Substance and Tampering With Evidence. Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the officers threatened to have his car impounded if he did not consent to its search and that his consent was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the admission of his statements to police. At trial, a jury found Cherry guilty as charged. He appealed.

Ultimately, the Court of Appeals upheld Cherry’s convictions. Here, the officer’s questions to Cherry’s passengers were not intended to and did not elicit incriminating information. Rather, the questions were intended to determine whether Cherry’s car could be safely removed from the scene.

Additionally, the court disagreed with Cherry’s arguments that officers were not permitted to ask for consent to search his car after he invoked his right to remain silent. Here, the officer informed Cherry of his Miranda rights before requesting Cherry’s consent to search the car. The court reasoned that the request for consent to search was not designed to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore, law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent to search his car after Cherry had invoked that right.

Moreover, Cherry’s statements to police that he had consumed drugs earlier that day were admissible, and not made in response to any questioning likely to elicit an incriminating response. The court reasoned that even if Cherry’s statements were prompted by watching the police search his car, as Cherry now argues, they were not prompted by unlawful interrogation. There was no violation of Cherry’s right to remain silent. Therefore, his statements were properly admitted.

Finally, the court disagreed with Cherry’s arguments that his consent to search was not voluntary, and therefore, it violated the Fourth Amendment and the evidence found during the search is inadmissible. Here, under these facts, Cherry clearly consented.

For all of these reasons, the Court of Appeals affirm Cherry’s convictions.

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. Besola: Overbroad Search Warrant

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In State v. Besola, the Washington Supreme Court held that a search warrant was overbroad. Because the warrant failed to meet the Constitution’s “particularity” requirement, the court reversed the Defendant’s convictions for Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Mark Besola and Jeffrey Swenson lived together in Besola’s house. After a friend of Swenson’s, Kellie Westfall, was arrested, she told police that she had seen drugs and child pornography at Besola’ s house. Based on the information provided by Westfall, a judge issued a search warrant for illegal drugs but declined to issue a search warrant related to child pornography at that time.

At the scene, police saw CDs and DVDs with handwritten titles that implied that they contained child pornography. On the basis of this observation, police requested and obtained an addendum to the search warrant.

The language of that amended warrant (and whether it was sufficiently particular) is at the heart of the legal issue in this case.

The warrant indicated that the crime under investigation was “Possession of Child Pornography R.C.W. 9.68A.070.” Clerk’s Papers (CP) at 312 (boldface omitted). The warrant indicated that “the following evidence is material to the investigation or prosecution of the above described felony”:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings; 2. Any and all printed pornographic materials; 3. Any photographs, but particularly of minors; 4. Any and all computer hard drives or laptop computers and any memory storage devices; 5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.

Police seized a number of computers, memory storage devices, CDs, and DVDs. They ultimately found child pornography on one computer and on 41 disks with handwritten titles. They also found a DVD duplicating device (also known as a DVD burner) attached to the computer. Some disks contained duplicated copies of the child pornography.

A handwriting expert testified that Besola’s handwriting was on at least one of the disks containing child pornography and that indications of both Besola’s and Swenson’s handwriting were on multiple other disks. Both defendants were charged with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Although the Court of Appeals affirmed the convictions, the WA Supreme Court granted review on the issue of whether the search warrant meet the Fourth Amendment’s particularity requirement.

The Court reasoned that the Fourth Amendment to the United States Constitution requires warrants to “particularly describe the place to be searched, and the persons or things to be seized.” That requirement is heightened if the warrant authorizes a search for materials protected by the First Amendment to the United States Constitution.

For guidance, the court reviewed a 1992 case, State v. Perrone, that involved similar circumstances. In Perrone, the Court decided that the warrant in that case failed to meet the particularity requirement of the Fourth Amendment, in part because it provided for the seizure of items that were legal to possess, such as adult pornography.

Here, the Court decided the decision in Perrone is binding in this case. Under Perrone, the court concluded that many provisions of this search warrant were similarly overbroad. As in Perrone, the descriptions of the items to be seized expressly included materials that were legal to possess, such as adult pornography and photographs that did not depict children engaged in sexually explicit conduct.

Similar to Perrone, these descriptions could easily have been made more particular by adding the precise statutory language, “depictions of a minor engaged in sexually explicit conduct.” As in Perrone, the police in this case failed to add that language to their search warrant. Therefore, under Perrone, these provisions were insufficiently particular and thus invalid.

The WA Supreme Court denied the State’s arguments that the warrant in this case is saved by a citation to the child pornography statute at the top of the warrant. The Court reasoned the State was incorrect because the statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. More importantly, said the Court, the State’s position conflicts with Perrone and would hinder the goals of the warrant particularity requirement.

Because the warrant fails to meet the Constitution’s particularity requirement, the WA Supreme Court reversed these convictions.

My opinion? Good decision. Yes, possessing child porn is illegal. However, so are illegal searches. Warrants must particularly describe the items believed to found. Otherwise, they become a meaningless ticket allowing police to engage a fishing expedition of our bodies, property, vehicles and homes. Good decision.

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