Category Archives: Exigent Circumstances

Exigent Circumstance DUI

Bellingham Defense Attorney, DUI, Exigent Circumstances, Fourth Amendment, misdemeanor, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

William's Wooden Garage (Essex) | Quick-garden.co.uk

In Lange v. California, the United States Supreme Court held that the pursuit of a fleeing misdemeanor DUI suspect does not always qualify as an Exigent Circumstance justifying a warrantless entry into a person’s garage.

FACTUAL BACKGROUND

One night, the Defendant Mr.  Lange drove by a California highway patrol officer while playing loud music. The officer followed Lange and soon after turned on his overhead lights to signal that Lange should pull over. Rather than stopping, Lange drove a short distance to his driveway and entered his attached garage.

The officer followed Lange into the garage. He questioned Lange and, after observing signs of intoxication, put him through field sobriety tests. A later blood test showed that Lange’s blood-alcohol content was three times the legal limit. The State charged Lange with the misdemeanor of DUI.

Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The California Court of Appeal also affirmed. It reasoned that the pursuit of a suspected misdemeanant was always permissible under the exigent circumstances exception to the warrant requirement. The California Supreme Court denied review. The United States Supreme Court (USSC) granted it.

ANALYSIS & CONCLUSIONS

The USSC held that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home.

The Court began by saying the Fourth Amendment ordinarily requires that a law enforcement officer obtain a judicial warrant before entering a home without permission. But an officer may make a warrantless entry when the exigencies of the situation, considered in a case-specific way, create a compelling need for official action and no time to secure a warrant. The Court has found that such exigent circumstances may exist when an officer must act to prevent imminent injury, the destruction of evidence, or a suspect’s escape.

The Court reasoned that misdemeanors run the gamut of seriousness, and they may be minor. States tend to apply the misdemeanor label to less violent and less dangerous crimes. Furthermore, it reasoned that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry.

“Add a suspect’s flight and the calculus changes—but not enough to justify a categorical rule,” said the Court. It further reasoned that in many cases, flight creates a need for police to act swiftly. But no evidence suggests that every case of misdemeanor flight creates such a need.

“When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry.” ~United States Supreme Court.

The Court followed up by saying In short, the common law did not have — and does not support — a categorical rule allowing warrantless home entry when a suspected misdemeanant flees.  With that, the Court vacated Mr. Lange’s criminal conviction.

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

Emergency Exception to the Warrant Requirement

9th Circuit Court of Appeals, Bellingham Defense Attorney, Exigent Circumstances, Federal Crimes & Prosecutions, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Robbery, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Most humiliating experience of my life:' Black North Carolina man after false burglar alarm - ABC News

In United States v. Holiday, the 9th Circuit Court of Appeals held that the police officer’s opening of the defendant’s unlocked front door constituted a search that was not justified by Exigent Circumstances exception to the warrant requirement because officers had no reason to believe that an emergency existed.

BACKGROUND FACTS

Mr. Holiday was tried and convicted for seven counts of armed robbery and three instances of attempted armed robbery under 18 U.S.C. 1951. The federal district court sentenced him to a mandatory minimum term of eighty-five years’ imprisonment.

At his trial, the Government sought to admit police body camera footage taken during an unrelated police encounter at the defendant’s home in connection with the report of child abuse in a vehicle registered to the defendant’s home. In the footage, the defendant was wearing shoes that matched the description of the shoes the suspect was wearing at an ARCO gas station in one of the robberies.

The body camera footage was taken on February 7, 2017. It was taken after police received a report that a man was hitting a child in the backseat of a blue Jaguar. In a “contemporaneous line” of actions from the report of the incident, police ran the license plate and found it was registered to a person with the initials M.B.

The bodycam video shows that when the officers arrived at the defendant’s  address, one of them knocked on the front door, tried the handle, and found it was unlocked. The officer pushed the door open but remained standing on the threshold. Holiday and his wife were on their way to the door when the officer opened it. They told the officers that their children were at school and that they did not own a blue Jaguar. There is no indication that the officers saw a blue Jaguar at or near Holiday’s residence. The officers took Holiday’s name and left.

Mr. Holiday moved to suppress the bodycam footage of this exchange on the ground that it was collected in violation of the Fourth Amendment. However, the federal district trial court denied Mr. Holiday’s motion to suppress the aforementioned bodycam evidence.  Later, Holiday was found guilty. The court sentenced him to a mandatory minimum term of eighty-five years’ imprisonment.

Holiday appealed on grounds that the trial court errored by denying his motion to suppress the body camera footage of him.

COURT’S ANALYSIS & CONCLUSIONS

First, the 9th Circuit reasoned that The San Diego Police Department did not obtain a
warrant to search Holiday’s home in connection with the report of child abuse in a blue Jaguar registered to Holiday’s address.

“Searches and seizures inside a home without a warrant are presumptively unreasonable and therefore violate the Fourth Amendment, unless subject to an established exception,” said the 9th Circuit, quoting  Kentucky v. King, 563 U.S. 452, 459 (2011).

Next, the 9th Circuit addressed the Government’s argument that the search was legal because it was pursuant to the Emergency Exception to the Warrant Requirement (Exigent Circumstances).

Ultimately, the 9th Circuit Court of Appeals disagreed with the Government. The court reasoned that the officers’ opening of the unlocked front door constituted a search that was not justified by the emergency exception as the officers had no reason to believe that the child victim was is the home at the address where the Jaguar was registered. There was no indication that the incident in the Jaguar had ended, and no blue Jaguar was at the address when the officers arrived.

“The officers’ conduct does not fall within the scope of the emergency exception to the warrant requirement.” ~ 9th Circuit Court of Appeals.

The 9th Circuit concluded, however, that the error in admitting the body camera evidence was harmless because of the strength of the other evidence that the defendant committed the ARCO robbery.

Please review my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime and the police search/seizure might be unlawful. Hiring an effective and competent defense attorney is the first and best step toward justice.

Exigent Circumstances for Warrantless Blood Draw

Bellingham Defense Attorney, Blood Test, DUI, Exigent Circumstances, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

How to Beat and Get Out of a Blood Test DUI Case - DUI Blood Test ...

In State v. Rawley, the WA Court of Appeals held that Exigent Circumstances justified an emergency DUI blood draw at the scene of a car collision. Here, the driver exhibited the effects of alcohol and a telephonic search warrant could not be obtained.

BACKGROUND FACTS

At 2:55 PM, Deputy Aman responded to a two-car, head-on collision. The defendant Ms. Rawley had crossed the center line, causing her vehicle to collide with another vehicle. Rawley was trapped in her vehicle.

As Deputy Aman spoke to Rawley, he noted a strong smell of alcohol and that her speech was slurred and repetitive. Rawley admitted to drinking alcohol.

The paramedics freed Rawley from the vehicle and placed her in the ambulance. Deputy Aman went to the ambulance and learned that IV fluids and medications were about to be administered to Rawley.

Deputy Aman felt exigent circumstances existed to draw Rawley’s blood to check her blood alcohol content (BAC) before administering IV fluids. The paramedic drew Rawley’s blood at 3:07 PM. IV fluids started at 3:23 PM. The ambulance left for the hospital at 3:23 PM. Rawley’s BAC was .35—over 4 times the legal limit under statute.

The State charged Rawley with felony driving under the influence. Before trial, Rawley made a CrR 3.6 motion to suppress the results of the blood draw. The trial court denied her motion. Following a bench trial, the trial court found Rawley guilty of felony driving under the influence.

Rawley appealed on the issues of whether exigent circumstances justified a warrantless blood draw.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by stating that warrantless searches and seizures are per se unreasonable and in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. However, under Missouri v. McNeely, the U.S. Supreme Court recognized an exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“Exigent circumstances exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence,” said the Court.  “But the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals addressed whether the warrantless blood draw was lawful under the exigent circumstances based on State v. Inman, a WA Court of Appeals case involving  a DUI motor vehicle injury collision occurring in a rural area with spotty phone service. In Inman, the Court held that a search warrant was not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.

“The circumstances here are like those in Inman. Rawley was in a head-on collision and was trapped inside her vehicle. Her speech was slurred and Deputy Aman could smell intoxicants on her breath. Rawley admitted to drinking. One of the paramedics told Deputy Aman he would be administering IV fluids and then taking Rawley to the hospital. Deputy Aman was aware that IV fluids are generally administered if there is concern for internal injuries. In Deputy Aman’s experience, a warrant request could take on average up to 45 minutes during the day.” ~WA Court of Appeals

The Court of Appeals decided Inman was similar to the present case and was properly relied upon by the trial court. “Accordingly, the trial court’s findings of fact support the trial court’s conclusion of law that exigent circumstances justified the warrantless blood draw based on Inman.”

In closing, the Court of Appeals rejected Rawley’s arguments that a police officer must inquire into the type of IV fluid being administered in order to show that exigent circumstance existed because the IV fluids would alter the blood test results.

“There is no binding legal authority requiring police officers to be knowledgeable of medicines and their effect on blood alcohol content.” ~WA Court of Appeals

With that, the Court of Appeals affirmed Rawley’s conviction for Felony DUI.

Please contact my office if you, a friend or family member face Alcohol DUI charges and evidence was obtained through a warrantless blood draw. Hiring a competent and experienced trial attorney is the first and best step toward justice.

A Cell Phone “Ping” Is a Search

Bellingham Defense Attorney, Cell Phone, Cell-Site Location Information (CSLI), Constitutional Rights, DNA, Exigent Circumstances, Fourth Amendment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, police, Rape, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Image result for cell phone ping

In State v. Muhammad, the WA Supreme Court held that a cell phone “Ping” is a search under the WA Constitution and the Fourth Amendment.

BACKGROUND FACTS

Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,” said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.

Exigent Circumstances Support Warrantless Blood Draw

Bellingham Defense Attorney, Blood Test, Constitutional Rights, Exigent Circumstances, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Reckless Driving, Search and Seizure, Search Warrant, Sentencing, Skagit County Criminal Defense, Vehicular Assault, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for Exigent Circumstances Support Warrantless Blood Draw

In State v. Anderson, the WA Court of Appeals held that exigent circumstances supported a warrantless blood draw at the scene from a driver arrested for vehicular homicide and vehicular assault.

BACKGROUND FACTS

In October 2014, Anderson was living with his high school friend, Mr. Powers. Powers would occasionally let Anderson drive his car. The evening of October 24, 2014, Anderson drank at home and then went to a bar to watch a hockey game. About 12:30 am., Powers heard Anderson’s voice and then heard his car start. Anderson took Powers’s car without his permission.

Around 2:00 a.m., Sergeant Jamie Douglas responded to a multivictim car crash in Auburn. At the scene, Douglas saw an “obliterated” car off the roadway, a path of debris, an uprooted tree with an 18-inch base, uprooted utility boxes, and guy wires that had been supporting a telephone pole torn out of the ground. The speed limit on the road was 35 m.p.h. but, based on the scene, Douglas estimated the car was traveling close to 100 mph.

Deputy Jace Hoch had observed the car earlier traveling at about 90 mph. but could not catch it. He asked dispatch to let the Auburn Police Department know that the car was heading toward Auburn. Four of the five passengers in the car died.

Multiple individuals who responded to the scene smelled alcohol on Anderson. Anderson told paramedic Paul Nordenger that he had had “a few drinks.” Nordenger drew Anderson’s blood at the scene without a warrant. Test results showed that his blood alcohol content (BAC) was 0.19 grams of alcohol per 100 milliliters of blood and that he had 2.0 nanograms of THC (tetrahydrocannabinol) per milliliter. Anderson was taken to Harborview Medical Center. Toxicologist Asa Louis testified that a second blood draw taken there showed a BAC of 0.18.

The State charged Anderson with four counts of vehicular homicide, one count of vehicular assault, one count of reckless driving, and an a sentencing aggravator for injury to the victim substantially exceeding the level of bodily harm necessary to satisfy the elements of vehicular assault. A jury convicted Anderson as charged.

Among other issues, Anderson claimed that exigent circumstances did not exist for officers to conduct a warrantless blood draw at the scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. A blood test is a search and seizure. A recognized exception to the warrant requirement allows a warrantless search or seizure when exigent circumstances exist.

“A court examines the totality of the circumstances to determine whether they exist,” said the Court. “They exist where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.” Furthermore, the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, for example, when delay results from the warrant application process.”

Next, the Court of Appeals’ legal analysis focused on prior cases U.S. Supreme Court and WA Supreme Court cases. It observed that Missouri v. McNeely upheld the proposition that the presence of other officers weighs against the conclusion that exigent circumstances existed. Also, in State v. Inman, the WA Court of Appeals held that exigent circumstances for a blood draw existed when Mr.  Inman crashed his motorcycle on a rural road, injuring him and his passenger. In that case, Inman had facial trauma; including bleeding and abrasions on the face, and a deformed helmet. A bystander told police that Inman had been unconscious for five minutes before regaining consciousness. A paramedic administered emergency treatment. A responding officer spoke with lnman and smelled intoxicants on him. Finally, Inman admitted that he had been drinking before driving his motorcycle.

“The circumstances here are more like those in Inman,” said the Court of Appeals. “Similar to Inman, the trial court found that Anderson was in a high-impact collision resulting in serious injuries.  Here, Mr. Anderson sustained serious injuries that required treatment, multiple responders smelled alcohol on him, he told an officer at the scene that he had been drinking before driving, a paramedic told the first responding officer that the medics would be giving the driver medication and intubating him, the first responding officer knew from his experience in law enforcement and as a paramedic that this emergency treatment could impair the integrity of the blood sample, and that it would take 40 to 90 minutes to obtain a warrant for a blood draw.

“A warrant was not practical because the delay caused by obtaining a warrant would result in the destruction of evidence or postpone Anderson’s receipt of necessary medical care,” reasoned the Court of Appeals. “The totality of the circumstances establish that exigent circumstances existed to justify a warrantless blood draw.”

Please contact my office of you, a friend or family member are charged with an alcohol-related driving charge and police execute a warrantless blood draw. Retaining an experienced DUI attorney who is experienced with the legalities of blood draws is the first and best step toward obtaining justice.

Forced & Warrantless Entry

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Exigent Circumstances, felony, Fourth Amendment, law enforcement, Police Misconduct, Qualified Immunity, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Taser, Whatcom County Criminal Defense, , , ,

Property118 | Police damage to rental property - Property118

In Bonivert v. City of Clarkston, the Ninth Circuit Court of Appeals held that police officers responding to a “physical domestic” call violated the Fourth Amendment by entering the locked house without a warrant after the suspect, who was the lone occupant of the home by the time the police arrived, refused repeated requests to come to the door. Under the facts of the case, the forced entry could not be upheld under consent, emergency doctrine or exigent circumstances.

BACKGROUND FACTS

This case starts with a domestic dispute call to the police from the home of Ryan Bonivert. During an evening gathering with friends, Bonivert reportedly argued with his girlfriend, Jessie Ausman, when she attempted to leave with the couple’s nine-month old daughter. By the time police arrived, the disturbance was over: Ausman, the baby, and the guests had safely departed the home, leaving Bonivert alone inside. At that point, there was no indication that Bonivert had a weapon or posed a danger to himself or others. Nor does the record suggest that Ausman intended to reenter the house or otherwise asked police to accompany her inside. When Bonivert failed to respond to repeated requests to come to the door, the officers decided they needed to enter the house. No attempt was made to obtain a search warrant.

Though Bonivert locked the door to his house and refused police entreaties to talk with them, the police broke a window to unlock and partially enter the back door. Even then, Bonivert tried to shut the door, albeit unsuccessfully. Although Ausman consented to the officers entering the house, Bonivert’s actions were express—stay out.

Nevertheless, the officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, handcuffed him, and arrested him. Bonivert was arrested for assaulting an officer, resisting arrest, and domestic violence assault in the fourth degree.

Bonivert brought civil rights claims under 42 U.S.C. § 1983 against the City, the County, Combs, Purcell, Gary Synder, and Joseph Synder, alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The district court granted summary judgment in favor of the defendants on the basis of qualified immunity.

For those who don’t know, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights. It only allows suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Ninth Circuit concluded that the warrantless entry into Bonivert’s home violated the Fourth Amendment as none of the lawful exceptions to the warrant requirement applied. The officers are not entitled to qualified immunity.

The Police Officers Were Not Entitled to Qualified Immunity.

The Court reasoned that police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the defendants’ conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation.

In other words, the question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Fourth Amendment

The Court of Appeals explained that the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

“It has long been recognized that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” reasoned the Court. “This special protection of the home as the center of the private lives of our people reflects an ardent belief in the ancient adage that a man’s house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.” Consequently, the Court reasoned it is a basic principle of Fourth Amendment law that warrantless searches of the home or the curtilage surrounding the home are presumptively unreasonable.

“Taken in the light most favorable to Bonivert,  . . . the facts demonstrate that the officers violated Bonivert’s constitutional right because no exception to the Fourth Amendment’s warrant requirement justified the officers’ entry into Bonivert’s home.”

Warrantless Entry: Officer are Not Entitled to Entry Under the “Consent” Exception.

The Court explained that although the consent exception ordinarily permits warrantless entry where officers have obtained consent to enter from a third party who has common authority over the premises, Georgia v. Randolph held that an occupant’s consent to a warrantless search of a residence is unreasonable as to a co-occupant who is physically present and objects to the search.

“Such is the situation here,” said the Court of Appeals. “Even though the officers secured
Ausman’s (his girlfriend’s) consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions.”

The court explained that Bonivert expressly refused entry when he locked the side door to his house. During the initial “knock and talk,” Combs and Purcell knocked and attempted to open the front and back doors to the house, but found them to be locked. As the officers circled the house to approach the side door, Bonivert realized it was unlocked and locked it as Combs was approaching. Combs heard the door lock and informed Purcell.

Bonivert also expressly refused entry when he attempted to close the back door on the officers after Combs broke in. Once the officers decided to enter the home by force, Combs used his flashlight to shatter a window pane in the back door, reached through the opening, and unlocked the door. At that point, Bonivert partially opened the door and confronted the officers, which prompted the officers to fire their tasers in dart mode. All parties agree that after the darts failed to make contact, Bonivert tried to shut the door, placing it between himself and the officers, but ultimately was prevented from doing so when Officer Combs rushed through with such force that he threw Bonivert to the other side of the room.

“Based on the foregoing, we hold that the officers are not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement. Simply put, a reasonable officer would have understood that no means no.”

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Emergency” Exception.

The Court reasoned that the emergency aid exception permits law enforcement officers to enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  An entry pursuant to the emergency aid exception is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. However, the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests, because the emergency exception is narrow and rigorously guarded.

“Viewing the facts in the light most favorable to Bonivert, there were simply no circumstances pointing to an actual or imminent injury inside the home,” said the Court. By the time the officers arrived, both Ausman and the child were safely outside, surrounded by four other adults intent on protecting them from harm. During the entire time that the officers spoke to the witnesses, circled and attempted to enter the home from various points, and called on Deputies Gary and Joseph Snyder for backup, the house was silent. Ausman further assured the officers that there were no weapons in the house and that Bonivert did not pose a danger to himself. Consequently, the Court rejected arguments that an emergency existed which allowed warrantless entry into the house.

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Exigent Circumstances” Exception.

The Court explained that the exigency exception permits warrantless entry where officers have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is necessary to prevent the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

Here, the Court reasoned that Bonivert, who was inside his home when the alleged domestic assault occurred and remained there even after the officers broke into his back door, was never a “fleeing suspect.” The officers never articulated any other legitimate law enforcement justification for entry under the exigency exception.

The Lower Court Improperly Denied Bonivart’s Excessive Force Claims.

Taken in the light most favorable to Bonivert, the evidence reflects that Bonivert remained inside the home at all times; that Bonivert did not threaten or advance toward the officers; that Bonivert posed no immediate threat to the officers; that Combs threw Bonivert across the back room; that Bonivert did not resist arrest; and that Combs tasered Bonivert several times in drive-stun mode notwithstanding Bonivert’s compliance. The evidence does not justify the district court’s conclusion that “no reasonable jury could find the use of force within the home excessive.

With that, the Ninth Circuit reversed the district court’s grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry
and excessive force.

Excellent 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.

Emergency Blood Draws

Bellingham Defense Attorney, Blood Test, Constitutional Rights, DUI, Exigent Circumstances, Fourth Amendment, Implied Consent, Probable Cause, Search Warrant, Skagit County Criminal Defense, Vehicular Assault, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for hospital airlift

In State v. Inman, the WA Court of Appeals held that a warrantless blood draw was proper under exigent circumstances where: (a) the injury collision occurred in a rural area; (b) there is spotty phone service; (c) a search warrant takes 30-45 minutes to create; and (d) helicopters airlifted the DUI suspect to a hospital. A search warrant is not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.

BACKGROUND FACTS

In May 2015, Inman and Margie Vanderhoof were injured in a motorcycle accident on a
rural road. Inman was the driver of the motorcycle and Vanderhoof was his passenger. Captain Tim Manly, the first paramedic on the scene, observed a motorcycle in a ditch and two people lying down in a driveway approximately 20 to 25 feet away. Captain Manly observed that Inman had facial trauma, including bleeding and abrasions on the face, and a deformed helmet. Based on Inman’s injuries, Captain Manly believed that the accident was a high-trauma incident.

Captain Manly learned from a bystander that Inman had been unconscious for approximately five minutes after the collision before regaining consciousness. Manly
administered emergency treatment to Inman, which included placing Inman in a C-Spine, a device designed to immobilize the spine to prevent paralysis.

While Captain Manly provided Inman with treatment, Sergeant Galin Hester of the Washington State Patrol contacted Vanderhoof, who complained of pelvic pain. Sergeant Hester spoke with Inman and smelled intoxicants on him.

Later, Jefferson County Sheriff’s Deputy Brandon Przygocki arrived on the scene and observed a motorcycle in a ditch with significant front-end damage.  He contacted Inman in the ambulance and, smelling alcohol, asked whether Inman had been drinking and driving. Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

Deputy Przygocki believed he had probable cause to believe Inman was driving under the influence. Helicopters came to airlift Inman and Vanderhoof to the nearest trauma center. Deputy Przygocki knew that preparation of a search warrant affidavit takes 30-45 minutes. There was no reliable cell phone coverage in the rural area. Deputy Przygocki conducted a warrantless blood draw after reading a special evidence warning to Inman informing him that he was under arrest and that a blood sample was being seized to determine the concentration of alcohol in his blood.

There is a process by which a search warrant for a blood draw may be obtained
telephonically and executed by an officer at the hospital to which Inman was being transported. However, this process is problematic and, in the experience of Officer Hester, had never worked in the past.

TRIAL COURT PROCEDURES

Inman was charged with vehicular assault while under the influence and filed a motion to
suppress evidence of the warrantless blood draw. He argued that the implied consent statute authorized a warrantless blood draw but that the implied consent statute was not constitutional, so there was no valid authority for the blood draw. He also argued that the exigent circumstances exception to the warrant requirement did not justify a warrantless blood draw in this case.

In response, the State argued that Inman’s blood was lawfully drawn pursuant to the exigent circumstances exception to the warrant requirement.

The trial court heard testimony from six witnesses, who testified consistently with the
factual findings summarized above. The trial court orally ruled that exigent circumstances justified the blood draw and later entered written findings of fact and conclusions of law.

Inman filed a reconsideration motion. He argued that there was no probable cause for DUI. He also argued that, even assuming that exigent circumstances justified the warrantless blood draw, a warrant was needed to test the blood. The State disagreed.

The trial court denied Inman’s reconsideration motion. The trial court concluded that Deputy Przygocki had probable cause to believe Inman had committed a DUI. In addition, the trial court concluded that the warrantless blood draw was justified under the exigent circumstances exception to the warrant requirement. Finally, the trial court concluded that because the blood was lawfully seized under exigent circumstances, no warrant was required to test the blood. After a stipulated facts trial, the trial court found Inman guilty of vehicular assault. Inman appealed.

COURT’S CONCLUSIONS AND ANALYSIS

  1. The Arrest Was Supported by Probable Cause.

The Court of Appeals reasoned that under both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution, an arrest is lawful only when supported by probable cause. Probable cause exists when the arresting officer, at the time of the arrest, has knowledge of facts sufficient to cause a reasonable officer to believe that an offense has been committed. Whether probable cause exists depends on the totality of the circumstances.

Here, Deputy Przygocki had probable cause to believe Inman had committed a DUI. When Deputy Przygocki arrived on the scene, he observed a motorcycle in a ditch with significant front-end damage and, after running the license plates, knew the vehicle belonged to Inman. Deputy Przygocki learned from Sergeant Hester that Inman was in the ambulance and smelled of alcohol. Deputy Przygocki then contacted Inman in the ambulance, and Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

“Based on these facts, Deputy Przygocki knew that Inman was driving the motorcycle after drinking alcohol when he crashed. This knowledge is sufficient to cause a reasonable officer to believe that Inman was driving a motor vehicle under the influence of alcohol,” said the Court of Appeals.

2. Exigent Circumstances Supported a Warrantless Blood Draw.

The Court of Appeals reasoned that a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution, unless an exception to the warrant requirement authorizes the search. Drawing a person’s blood for alcohol testing is a search triggering these constitutional protections. A warrantless search is allowed if exigent circumstances exist.  The exigent circumstances exception to the warrant requirement applies where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.

“The natural dissipation of an intoxicating substance in a suspect’s blood may be a factor in determining whether exigent circumstances justify a warrantless blood search, but courts determine exigency under the totality of the circumstances on a case-by-case basis.”

The Court of Appeals held that under the circumstances, obtaining a warrant was not practical. Inman and Vanderhoof were both injured from a motorcycle accident that resulted in significant front-end damage to the motorcycle, which was found in a ditch. Both Inman and Vanderhoof received emergency medical services, and Inman was receiving treatment for possible spine injuries. At the time of the blood draw, helicopters were coming to airlift Inman and Vanderhoof to the nearest hospital. It would have taken at least 45 minutes to prepare and obtain judicial approval for a search warrant. Deputy Przygocki lacked reliable cell phone coverage in the rural area, so obtaining a telephonic warrant may have been a challenge.

CONCLUSION

The Court of Appeals concluded that the trial court did not err in denying Inman’s suppression motion. First, there was probable cause to arrest Inman for DUI. Second, exigent circumstances existed to authorize a warrantless blood draw. Third, the implied consent statute does not bar a warrantless search under exigent circumstances. Finally, a legal blood draw under the exigent circumstances exception allows testing of the blood without a warrant when there is probable cause to arrest for DUI.

My opinion? Exigent circumstances are one of many arguments that the government uses to get around search warrant requirements. Contact my office if you, a friend or family member face criminal charges involving DUI, blood draws, or exigent circumstances which arguably circumvent the need for officers to obtain search warrants. In difficult cases like the one described above, competent legal counsel is definitely needed to protect constitutional rights against unlawful search and seizure.

Don’t Search My Tent!

Bellingham Defense Attorney, Constitutional Rights, Evidence, Exigent Circumstances, Fourth Amendment, law enforcement, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for police search tent homeless

In State v. Pippin, the WA Court of Appeals held that a person has a constitutional privacy interest in a tent that is unlawfully erected on public property.

BACKGROUND

Mr. Pippin was a homeless man, living in a tent-like structure on public land in Vancouver. As part of an attempt to notify individuals of a new camping ordinance which prohibits camping on public land without permission, police officers approached Pippin’s tent and requested that he come out. Because Pippin did not come out after an uncertain amount of time and because of noises they heard in the tent, the officers felt they were in danger. One officer lifted a flap of Pippin’s tent to look inside. In the tent, the officers observed a bag of methamphetamine. Pippin was charged with unlawful possession of a controlled substance.

He moved to suppress the evidence derived from the officer basically lifting the flap and looking into the tent, arguing that it was an unconstitutional search under the Fourth and Fourteenth Amendments of the United States Constitution and article I, section 7 of the Washington Constitution. The Court granted his motion and dismissed  the charge.

The State appealed on arguments that (1) the trial court erred in determining that Pippin had a privacy interest in his tent under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, and (2) if Pippin’s tent is entitled to constitutional privacy protection, the trial court erred in concluding that the officers’ act of opening and looking into the tent was not justified as a protective sweep or through exigent circumstances based on officer safety.

COURT’S ANALYSIS AND CONCLUSIONS

In the published portion of this opinion, the Court of Appeals held that Pippin’s tent and its contents were entitled to constitutional privacy protection under article I, section 7 of the WA Constitution.

The Court reasoned that Article I, section 7 of the WA Constitution mandates that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” It then analyzed different cases under the WA Supreme Court. In short, prior opinions have held that the State unreasonably intruded into a person’s private affairs when it obtained long distance telephone toll records through a pen register, examined the contents of a defendant’s trash placed on the curb for pickup, randomly checked hotel registries to determine who were guests at a hotel, attached a global positioning system tracking device to a defendant’s vehicle, and read through text messages on a cell phone.

The Court’s analysis focused on (1) the historical protections afforded to the privacy interest, (2) the nature of information potentially revealed from the intrusion, and (3) the implications of recognizing or not recognizing the asserted privacy interest.

“Pippin’s tent allowed him one of the most fundamental activities which most individuals enjoy in private—sleeping under the comfort of a roof and enclosure. The tent also gave him a modicum of separation and refuge from the eyes of the world: a shred of space to exercise autonomy over the personal. These artifacts of the personal could be the same as with any of us, whether in physical or electronic form: reading material, personal letters, signs of political or religious belief, photographs, sexual material, and hints of hopes, fears, and desire. These speak to one’s most personal and intimate matters.”

The Court further reasoned that the temporary nature of Pippin’s tent does not undermine any privacy interest, nor does the flimsy and vulnerable nature of an improvised structure leave it less worthy of privacy protections. “For the homeless, those may often be the only refuge for the private in the world as it is,” said the Court.

Under the case law above, Pippin’s tent was the sort of closed-off space that typically shelters the intimate and discrete details of personal life protected by article I, section 7.

The court concluded by saying that all three examined factors—the historical protections, the intimate details revealed from a search, and the implications of recognizing the interest—weigh in favor of finding that Pippin’s tent functioned as part of his private affairs worthy of protection from unreasonable intrusions.

“Accordingly, we hold that Pippin’s tent and its contents fell among those “privacy interests which citizens of this state . . . should be entitled to hold, safe from governmental trespass absent a warrant. As such, Pippin’s tent and contents are protected under article I, section 7 of the Washington Constitution.”

In the unpublished portion of the opinion, the Court held that because the State failed to show that an arrest was taking place, the protective sweep exception does not apply.

My opinion? Excellent decision. The homeless have rights, too. Just because one lives in a tent without a front door to knock on, doesn’t mean that police can intrude on one’s public affairs. There was no “exigent circumstance” or “officer safety issue” justifying the intrusion. Good opinion.

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.

Protective Sweeps of Homes

Bellingham Defense Attorney, Constitutional Rights, Evidence, Exclusionary Rule, Exigent Circumstances, felony, Fifth Amendment, Homicide & Manslaughter, Interrogation, law enforcement, Miranda, police, Privacy, Probable Cause, Protective Sweep, Search and Seizure, Self-Defense, Self-Incrimination, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for protective sweep

In State v. Chambers, the WA Court of Appeals decided (1) the police’s “protective sweep” of the defendant’s home was improper because the defendant was arrested outside his home and the officers did not have specific facts that other armed individuals might be inside the defendant’s home, and (2) the defendant’s 3.5 Motion to Suppress statements made to police was rightfully denied because police scrupulously honored the defendant’s Fifth Amendment invocation of his right to remain silent.

In this case, defendant Lovett Chambers was drinking at the Feedback Lounge, a neighborhood bar in West Seattle that he frequented. Chambers was a convicted felon of African-American descent who moved to Seattle in 1989, worked in the construction industry, obtained degrees in computer science and started an IT business. In 1992, he got married and later purchased a house in West Seattle with his wife. A few years later, Chambers asked his wife to buy him a Colt .45 caliber semiautomatic handgun. She did so, apparently unaware that he was a convicted felon.

On the night of the incident, Mr. Chambers had numerous drinks at the Feedback Lounge. He carried and concealed his .45 pistol.   At some point, two Caucasian men entered the bar and began drinking. The gentlemen did not know Mr. Chambers. Later, all of the gentlemen departed the bar simultaneously and walked to their respective vehicles which were parked nearby each other in the parking lot.

For reasons unknown, words were exchanged between Chambers and the two gentlemen, who apparently uttered racial epitaphs to each other, Mr. Chambers, or both. One of the gentleman – Michael Travis Hood – pulled a shovel from his vehicle; apparently to defend himself from Mr. Chambers. However, Chambers shot Mr. Hood three times with his .45 pistol. Chambers walked away, got into his car and drove home in his BMW.

Mr. Hood died from lethal gunshot wounds to his back.

Seattle police arrested Chambers at his home at 10:49 p.m. Officer Belgarde read Chambers his Miranda rights at 10:51 p.m. Chambers smelled of alcohol. He was “swaying,” had trouble balancing, slurred his words, and was argumentative. Officer Galbraith drove Chambers to the precinct. Officers obtained a warrant to search Chambers’ home and seized a loaded .45 caliber handgun, a spare magazine, and the BMW keys. The police impounded the BMW. Later, officers interrogated Chambers and obtained numerous incriminating statements regarding the shooting.

The State charged Chambers with murder in the second degree of Hood while armed with a deadly weapon. Chambers asserted a claim of self-defense. Before trial, Chambers filed a CrR 3.6 motion to suppress the evidence seized from his house and the statements he made. The court denied the motion to suppress the evidence seized from the house. The court concluded the police “were authorized to enter the house to conduct a protective sweep to ensure their safety.” The court also denied the motion to suppress Chambers’ statements to police and reasoned his “right to remain silent was scrupulously honored” under Michigan v. Mosley.

The jury found Chambers guilty of the lesser-included offense of manslaughter in the first degree. By special verdict, the jury found Chambers was armed with a firearm at the time he committed the crime. The court imposed the low-end standard range sentence of 78 months plus the mandatory consecutive 60-month firearm enhancement. Chambers appealed.

  1. Evidence Seized from the House Was Obtained Through a Unlawfully Conducted “Protective Sweep,” However, The Trial Court’s Decision to Deny Chambers’ Suppression Motion Was Harmless Error.

Chambers contends the court erred in denying his motion to suppress the evidence the police seized from his house: the Colt .45, a magazine clip with .45 caliber bullets, and the keys to the BMW.

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates that one of the narrow exceptions to the warrant requirement applies. One recognized exception to the warrant requirement is a “protective sweep” of the home. The court further reasoned that under Maryland v. Buie the U.S. Supreme Court describes a protective sweep as a limited cursory search incident to arrest and conducted to protect the safety of police officers or others.

The Court of Appeals decided the trial court erred in concluding the police had the authority to conduct a protective sweep of Chambers’ house. First, a warrantless search of “spaces immediately adjoining the place of arrest” without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home.

Here, the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress:

“The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse. The front door was open after the arrest and the police could see Sara was sitting on the living room couch watching television and remained in the living room.”

However, the Court of Appeals also ruled that the verdict would have been the same absent the trial court’s error. Chambers testified he acted in self-defense when he shot Hood with the Colt .45. Chambers admitted that he parked his BMW in front of the Beveridge Place Pub on January 21, that he kept a .45 caliber gun under the passenger seat of the BMW, and that he used the Colt .45 to shoot Hood near Morgan Junction Park. For these reasons, the trial court’s decision to deny Chamber’s motion to suppress was harmless error.

2. Chamber’s Incriminating Statements Are Admissible.

On appeal, Mr. Chambers asserts the detectives did not “scrupulously honor” his Fifth Amendment right to remain silent. The court reasoned that the Fifth Amendment provides, in pertinent part, “No person shall be . .. compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the Supreme Court adopted “procedural safeguards” to protect the privilege and held that before questioning an individual in custody, the police must clearly inform the suspect of the following:

That he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Here, the Court of Appeals decided that because the circumstances leading up to the police’s interview with Chambers show the police scrupulously honored Chambers’ right to cut off questioning, the court did not err in denying the motion to suppress the statements Chambers made.

The Court of Appeals reasoned that the record shows the police advised Chambers of his Miranda rights at 10:51 p.m. when he was arrested on January 21. Chambers stated he understood his rights and unequivocally said he did not want to talk to the police. The record establishes the police did not “ask the defendant any questions or persist in repeated efforts to wear him down or change his mind after he invoked his rights.” After he invoked his right to remain silent at 10:51 p.m. on January 21, the police did not question Chambers while at police headquarters. And while driving to Harborview to obtain a blood draw at 3:07 a.m. on January 22, the detectives did not ask Chambers any questions.

Nonetheless, on the way to Harborview, Chambers said he did not want to talk about what happened. While at Harborview, Chambers seemed to have “sobered up.” When they left Harborview approximately 45 minutes later, Detective Steiger advised Chambers of his Miranda rights again. Chambers stated he understood his rights and did not invoke the right to remain silent.

With that, the Court of Appeals concluded the undisputed facts support the conclusion that the right to cut off questioning was scrupulously honored.

The Court affirmed the jury verdict.

My opinion? The police should have advised Mr. Chambers of his Ferrier warnings, a topic which I have blogged many times. Ferrier warnings must be given if police officers seek to enter the home to conduct a warrantless search for evidence of a crime or contraband. Still, even if Ferrier warnings were given and Mr. Chambers denied the police entry into his home, his incriminating statements to police ultimately assigned harmless error to the unlawful search.

Please review my Search & Seizure Legal Guide and 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.

“Knock & Announce” Was Too Short.

Bellingham Defense Attorney, Constitutional Rights, Evidence, Exigent Circumstances, felony, Ineffective Assistance, Knock & Talk, law enforcement, marijuana, police, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for cops break down door

In State v. Ortiz, the WA Court of Appeals Division III held that police violated a defendant’s rights when they forced entry into his home after waiting only 6-9 seconds of their “knock and announce” during the early morning.

In late July 2011, Wapato Police Sergeant Robert Hubbard viewed the backyard of the defendant’s property from the vantage point of a cooperative neighbor. He saw two marijuana plants. Sergeant Hubbard was granted a search warrant for the property.

on August 11, 2011, at approximately 6:4 7 a.m., Sergeant Hubbard and 11 other police officers executed the search warrant at the property. He knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Hearing nothing inside the home, the officers breached the front door and entered the home.

Upon searching the property, the officers found 41 marijuana plants in various stages of growth and other evidence of a grow operation. Mr. Ortiz was eventually charged with one count of manufacture of a controlled substance, one count of involving a minor in an unlawful controlled substance transaction, and several other counts not relevant on appeal.

At the end of trial, the jury found Mr. Ortiz guilty.

On appeal, Mr. Ortiz argued he received ineffective assistance of counsel because his defense attorney failed to challenge the execution of the search warrant for failure to comply with the knock and announce rule.

EFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals began by explaining that effective assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. First, the defendant must show he received deficient representation. Second, the defendant must show he suffered prejudice as a result of the deficient performance.

“KNOCK & ANNOUNCE” RULE.

Next, the court explained the “knock and announce” rule. The Fourth Amendment to the United States Constitution requires that a non-consensual entry by the police be preceded by an announcement of identity and purpose on the part of the officers. This is part of the constitutional requirement that search warrants be reasonably executed.

In WA State, the parallel requirement of article I, section 7 of the Washington Constitution is codified in RCW 10.31.040. It states, “To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other enclosure, if, after notice of his or her office and purpose, he or she be refused admittance.”

The Court explained that in order to comply with the “Knock & Announce” statute, the police must, prior to a non-consensual entry, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance. The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a ‘waiting period,’ often linked to whether the police officers are refused admittance.

Strict compliance with the rule is required unless the State can demonstrate that one of the two exceptions to the rule applies: exigent circumstances or futility of compliance. Finally, the proper remedy for an unexcused violation is suppression of the evidence obtained by the violation.

Here, the only disputed issue was whether the police waited long enough before they broke down the door. The answer to this question depends upon the circumstances of the case.

The Court elaborated that the reasonableness of the waiting period is evaluated in light of the purposes of the rule, which are: ( 1) reduction of potential violence to both occupants and police arising from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant’s right to privacy.

Here, the Court believed the waiting period of 6-9 seconds was unreasonable:

“In this case, due to the early hour of the search, the occupants were foreseeably asleep. Six to nine seconds was not a reasonable amount of time for them to respond to the police, and thus no denial of admittance can be inferred. Even Sergeant Hubbard admitted it would not be a surprise that sleeping occupants would be unable to respond in that amount of time. In addition, the purposes of the rule were not fulfilled due to the property damage done by battering in the door. The police did not comply with the rule.”

Although the State presented cases where the “knock and announce” rule was adhered to after police officers breached entry quickly after announcing, the Court nevertheless reasoned that in each of those cases the defendants were both present and awake. But here, the officers did not have any indication the home’s occupants were present or awake.

Because the police violated the knock and announce rule, and there is no legitimate strategic or tactical reason for failing to challenge the search, counsel was deficient for not moving to suppress the evidence. This deficiency, reasoned the court, prejudiced the defendant.

The Court concluded that Mr. Ortiz established that he was deprived of his constitutional right to effective assistance of counsel. The court reversed his convictions and remanded the case back to the trial court with directions to suppress the fruits of the illegal search.

My opinion? Excellent decision. Search and seizure issues like this are incredibly interesting. For more information on the case law surrounding these issues please review my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And 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.