Category Archives: Federal Crimes & Prosecutions

Why Pot Shops Get Robbed

Brutal Pot Shop Robbery Caught On Camera

The news bombards us with frequent reminders of WA marijuana retailers getting robbed and burglarized.  Pot shops up and down the I-5 corridor, from Bellingham to Vancouver, are increasingly becoming the target of armed robberies. And some of those robberies have even left employees with gunshot wounds.

One reason why pot shops are hit so often is that the businesses are cash-only. Because marijuana is federally illegal, federal law prohibits the stores from taking credit or debit card payments. Transactions in the U.S. involving the purchase or trade of marijuana are not permitted on credit card networks until federal law allows. As a result, credit card companies have distanced themselves from facilitating marijuana -based transactions.

Banking has been a sticking point for the legal cannabis industry for much of its existence. Even where legal, banks are often hesitant to get involved with cannabis businesses. That extends to cannabis credit card processing: a card network ban on cannabis transactions has locked state-legal THC licensees out of merchant processing services, preventing them from transacting with debit and credit cards.

Credit unions are also leery of marijuana transactions for many of the same reasons. The National Credit Union Association (NCUA) reports that under federal law and regulations, there are some “worst case scenarios” that may occur. First, a credit union could face criminal liability for banking a business that engages in a federally illegal activity, i.e., the sale of marijuana. Second, the NCUA could pull the credit union’s charter, thus, potentially leaving the credit union’s members temporarily without services and requiring that credit union to be absorbed into a different credit union.

Third, the NCUA could terminate the credit union’s share insurance account, which would force that credit union to find a private insurance provider. Fourth, the credit union could lose access to its Federal Reserve master account. And finally, should a credit union’s member(s) be prosecuted, their funds could be tied up in asset forfeiture proceedings, which could be labor-intensive and impact the credit union’s balance sheets.

My opinion? When cannabis becomes legal in the U.S. federally, all merchants — ecommerce and brick-and-mortar — can expect an explosion of legitimate payment providers. Until then, cash is king. And as such, unfortunately, marijuana retailers may continue to be victims of crime.

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.

The Feds Increased Prosecution of Domestic Terrorism

Detecting the Financing of Domestic Terrorism - Financial Crime News

Excellent article bMatt Zapotosky  and Devlin Barrett discusses how the Justice Department formed a new domestic terrorism unit.

The announcement came from Matthew G. Olsen, the head of the Justice Department’s national security division. Mr. Olson announced the creation of the unit in his opening remarks before the Senate Judiciary Committee. He said the number of FBI investigations of suspected domestic violent extremists had more than doubled since the spring of 2020.

“This group of dedicated attorneys will focus on the domestic terrorism threat, helping to ensure that these cases are handled properly and effectively coordinated across the Department of Justice and across the country.” ~Matthew G. Olsen, Justice Department’s National Security Division

Olsen sought to assure lawmakers that the Justice Department is investigating and prosecuting all of those who committed crimes, no matter what motivated them. Olsen said authorities had arrested and charged more than 725 people. Charges included more than 325 felonies in conneced to the January 6th attack on the Nation’s Capitol. According to the article, the FBI is seeking to identify and arrest more than 200 additional suspects.

The Justice Department and the bureau have faced criticism in recent years for not focusing as intensely on domestic terrorism as they do internationally inspired threats, though officials have insisted they take both matters seriously.

Last year, the White House released a national strategy to address the problem, calling for, among other things, new spending at the Justice Department and FBI to hire analysts, investigators and prosecutors. It is believed the Capitol attack will spur broad crackdown on domestic extremists.

Historically, domestic terrorism investigations come with more procedural and legal hurdles than cases involving suspects inspired by groups based outside the United States, such as the Islamic State or al-Qaeda. The charge of material support for a foreign terrorist group, for instance, has no legal equivalent for someone eager to commit violence in the name of domestic political goals.

My opinion? Obviously, the breach of the Capitol has spurred new political and policy debates abouthow the government combats domestic terrorism. This may trickle down to more localized prosecutions. State prosecutors may become emboldened to prosecute Hate Crimes and other crimes involving speech, race or political affiliations.

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.

Federal Executions Halted

US federal executions halted over 'potentially unlawful' method - BBC News

The Department of Justice reports that Attorney General Merrick Garland ordered a temporary stop Thursday to scheduling further federal executions.

In a memo to senior officials, he said serious concerns have arisen about the arbitrariness of capital punishment, its disparate impact on people of color, and “the troubling number of exonerations” in death penalty cases.

“The Department of Justice must ensure that everyone in the federal criminal justice system is not only afforded the rights guaranteed by the Constitution and laws of the United States but is also treated fairly and humanly.” ~Attorney General Merrick Garland

Court fights over the traditional three-drug memo for carrying out lethal injections, and a shortage of one of those drugs, brought federal executions to a halt for nearly two decades.

But in 2019, under the Trump Administration then-Attorney General William Barr directed federal prison officials to begin carrying lethal injections using a single drug — a powerful sedative. Using that method, 13 people on federal death row were executed between July 2020 and January 2021.

Garland ordered a review of the revised lethal injection protocol and directed the Bureau of Prisons to stop using that method while that is underway. He also said the department would study a Trump administration regulation that allowed federal prisons to carry out executions in any manner authorized by the state where the death sentence was imposed.

Garland’s memo did not address whether the federal government would continue to seek the death penalty in criminal cases. However, no federal executions will be scheduled while the reviews are pending.

The Attorney General’s memorandum can be found here.

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.

Supreme Court Sides with Police Officer who Improperly Searched License Plate Database

CA police officers keep jobs despite criminal convictions | The Sacramento Bee

In Van Buren v. United States, the U.S. Supreme Court held that defendant Nathan Van Buren, a Georgia police officer Buren, did not violate the nation’s top computer crime law when he searched a license plate database for non-official purposes.

BACKGROUND FACTS

Former Georgia police sergeant Nathan Van Buren used his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money. Van Buren agreed. The requestor – a third party who offered to pay him to search the database – was an undercover FBI informant. Van Buren used his own valid credentials to perform the search. However, his conduct clearly violated a department policy against obtaining database information for non-law-enforcement purposes.

Again, unbeknownst to Van Buren, his actions were part of a FBI sting operation. Van Buren was charged with a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U. S. C. §1030(a)(2). A jury convicted Van Buren, and the lower federal District Court sentenced him to 18 months in prison.

Van Buren appealed his conviction to the Eleventh Circuit Court of Appeals, arguing that the “exceeds authorized access” clause applies only to those who obtain information to which their computer access does not extend, not to those who misuse access that they otherwise have. Consistent with Eleventh Circuit precedent, the panel held that Van Buren had violated the CFAA.

Van Buren appealed again, this time to the U.S. Supreme Court.

COURT’S RATIONALE & CONCLUSIONS

In a 6-3 majority opinion penned by Justice Amy Coney Barrett, the Court held that Van Buren’s conduct did not violate the CFAA when he searched a license plate database for non-official purposes.

Justice Barrett wrote that Van Buren’s conduct “plainly flouted” his department’s policy, which authorized him to obtain database information only for law enforcement purposes.
“The parties agree that Van Buren accessed a computer with authorization and obtained information in the computer,” wrote Justice Barrett.  “They dispute whether Van Buren was entitled so to obtain that information.”
Regarding that specific issue, Justice Barrett reasoned the provision of the law at issue does not cover those who have improper motives for obtaining information that is otherwise available to them.  And regarding the issue of whether Van Buren violated the CFAA  – the truly important legal issue of the case –  Justice Barrett wrote “he did not.”
“The relevant question, however, is not whether Van Buren exceeded his authorized access but whether he exceeded his authorized access as the CFAA defines that phrase. For reasons given elsewhere, he did not.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

“To top it all off,” she wrote, the government’s expansive interpretation of the law “would attach criminal penalties to a breathtaking amount of commonplace computer activity.” Simply checking personal email or reading the news on a work computer would be considered a crime, Barrett added.

“The Government’s interpretation of the “exceeds authorized access” clause would attach criminal penalties to a breathtaking amount of commonplace computer activity. For instance, employers commonly state that computers and electronic devices can be used only for business purposes. On the Government’s reading, an employee who sends a personal e-mail or reads the news using a work computer has violated the CFAA.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

Finally, Justice Barrett reasoned that the Government’s prosecution would also inject arbitrariness into the assessment of criminal liability, because whether conduct like Van Buren’s violated the CFAA would depend on how an employer phrased the policy violated.

With that, the U.S. Supreme Court reversed Van Buren’s criminal conviction.

THE DISSENT

In his dissent, Justice Thomas compared Van Buren’s actions to a valet charged with parking a car, writing that the law should have covered the police officers’ actions. The valet, Thomas wrote, may “take possession of a person’s car to park it, but he cannot take it for a joyride,” Thomas wrote. He noted that Van Buren had permission to retrieve license plate information, but only for “law enforcement purposes.”
“When the police officer accessed the database in exchange for a bribe from an acquaintance, he exceeded authorized access under the law . . . Without valid law enforcement purposes, he was forbidden to use the computer to obtain that information.” ~ U.S. Supreme Court Justice Thomas, Dissenting Opinion.
In another example, Thomas said that an employee may be entitled to pull the alarm in the event of a fire, “but he is not entitled to pull it for some other purpose, such as to delay a meeting for which he is unprepared.”
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 Exception to the Warrant Requirement

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.

FBI Releases 2019 Hate Crime Statistics

Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

Coronavirus Crime Trends

Coronavirus Quarantines Spark Drop in Crime – for Now | National News | US News

Excellent and informative article in Safewise.com written by lead safety reporter and in-house expert gives us updates on the latest crime statistics and trends in the major cities throughout the Coronavirus pandemic.

The gist?

“It depends on who you ask. From a research standpoint, it’s difficult to make a sweeping assumption—even after six months of living in a COVID-19 world. But there are consistent signs across the country that certain crimes have seen jumps during the global pandemic. The biggest increases have been in violent crimes, particularly murder, aggravated assault, and shooting incidents.” ~Rebecca Edwards, Lead Safety Reporter, Safewise.com

  • Preliminary FBI data for the first six months of 2020 shows murder and non-negligent homicide as up nearly 15% compared to the same time period last year.
  • report by the Council on Criminal Justice (CCJ) paints an even more dire picture—showing a 53% jump in homicides in 27 major US cities this summer, compared to the last.
  • FBI data also shows a 4.6% jump in aggravated assaults between January and June 2020, versus the same period in 2019.
  • Aggravated assault rose 14% summer over summer, according to the CCJ analysis.
  • Gun violence has been relentless for much of 2020, particularly in major cities like ChicagoNew York City, and Philadelphia.
  • As of September 28, the Gun Violence Archive (GVA) has recorded 13,641 homicides, murders, and unintentional gun-related deaths for 2020. That’s almost 90% of the total recorded for all of 2019.

“It’s not all bad news, though,” reports Edwards. “There are plenty of other crimes that have dropped dramatically amid stay at home orders, physical distancing, and other pandemic conditions.” She gives us the following data:

  • Counts of rape have dropped, according to FBI data—falling almost 18% year over year.
  • Robberies have also been on the decline, dropping 7% for the first half of 2020.
  • Overall, property crimes have been on a downward trajectory this year.
  • According to a preliminary FBI report,  property crime saw an 8% decrease nationwide between January and June 2020, compared to the same timeframe last year.
  • The FBI shows burglaries down across the board by nearly 8% year over year, although cities like Seattle and San Francisco have seen drastic increases.
  • Larceny thefts also dropped by nearly 10% in the first half of 2020, according to FBI data.
  • Car thefts and break-ins have been on the rise during the pandemic. The FBI shows a 6% climb in vehicle thefts between January and June 2020, compared to the same time in 2019.
  • Cities like Los AngelesDenver, and Scarsdale, New York have broken records for the number of cars stolen so far in 2020.
  • The FBI also reports a drastic jump of 19% in arson offenses nationwide. The majority (52%) of that increase came from cities with more than one million residents.

Edwards also gives statistics on Washington State:

  • Seattle had 32 more burglaries per 100,000 people between March 16 and April 12, compared to the same time period last year.
  • One Seattle precinct saw an 87% jump in burglaries in March, as businesses shuttered due to the pandemic. Overall, the city has seen 21% more burglaries.
 Please contact my office if you, a friend or family member face criminal charges during the Coronavirus Pandemic.

Excessive Parking Fines

How a Parking Ticket Impacts a Driver

In Pimentel v. City of Los Angeles, the Ninth Circuit Court of Appeals held that the Eighth Amendment’s Excessive Fines Clause applies to excessive parking fines.

BACKGROUND FACTS

The City of Los Angeles imposes civil fines for parking meter violations. Under an ordinance, if a person parks her car past the allotted time limit, she must pay a $63 fine. And if she fails to pay the fine within 21 days, the City will impose a late-payment penalty $6300. In sum, a person who overstays a parking spot faces a fine of $63 – $181.

Appellant Mr. Pimentel and the other appellants sued the City of Los Angeles under 42 U.S.C. § 1983, asserting that the fines and late payment penalties violate the Eighth Amendment’s Excessive Fines Clause and the California constitutional counterpart.

The case made its way through the lower federal district court. The lower court ordered that the initial parking fine was not grossly disproportionate to the offense and thus survives constitutional scrutiny. The case was appealed to the Ninth Circuit, however, who issued its own opinion below.

COURT’S REASONING & CONCLUSIONS

The Court of Appeals held that although the initial parking fine was not disproportionate to the offense, the the City’s late fee runs afoul of the Excessive Fines Clause.

The Court said the Excessive Fines Clause of the Eighth Amendment limits the government’s power to extract payments, whether in cash or in kind, as punishment for some offense. Also, the Court reasoned that the Excessive Fines Clause traces its lineage back to at least the Magna Carta which guaranteed that a free man shall not be fined for a small fault.

“For centuries, authorities abused their power to impose fines against their enemies or to illegitimately raise revenue,” said the Ninth Circuit. “That fear of abuse of power continued to the colonial times. During the founding era, fines were probably the most common form of punishment, and this made a constitutional prohibition on excessive fines all the more important.”

The Court extended the  four-factor analysis found in United States v. Bajakajian to decide whether a fine is “grossly disproportionate” to the offense: (1) the nature and extent of the crime, (2) whether the violations was related to other illegal activities, (3) the other penalties that may be imposed for the violation, and (4) the extent of the harm caused.

The Court reasoned that under the first Bajakajian factor—  the nature and extent of the crime — the plaintiffs were indeed culpable because there was no factual dispute that they violated the parking infraction code for failing to pay for over-time use of a metered space. However, the Ninth Circuit also found the the parking transgressions were small:

“But we also conclude that appellants’ culpability is low because the underlying parking violation is minor. We thus find that the nature and extent of appellants’ violations to be minimal but not de minimis.”

The Court further reasoned that the second Bajakajian factor — whether the violations was related to other illegal activities — was not as helpful to its analysis: “We only note that there is no information in the record showing whether overstaying a parking meter relates to other illegal activities, nor do the parties argue as much.”

Similarly, the Court said that the third Bajakajian factor — whether other penalties may be imposed for the violation — also did not advance its analysis. “Neither party suggests that alternative penalties may be imposed instead of the fine, and the record is devoid of any such suggestion.”

Finally, the Court turned to the fourth Bajakajian factor — the extent of the harm caused by the violation. “The most obvious and simple way to assess this factor is to observe the monetary harm resulting from the violation,” said the Court. Ultimately, it reasoned that while a parking violation was not a serious offense, the fine is not so large, either, and likely deters violations.

With that, the Ninth Circuit held that the City’s initial parking fine of $63 was not grossly disproportional to the underlying offense of overstaying the time at a parking space. Nevertheless, the Court also held that the 100% late fee on the initial fine must be remanded back to the lower district court for the City to justify:

“The government cannot overstep its authority and impose fines on its citizens without paying heed to the limits posed by the Eighth Amendment. Yet in its brief to this court, the City of Los Angeles did not even bother addressing the constitutionality of its late fee. Based on the record, we do not know the City’s justification for setting the late fee at one hundred percent of the initial fine.”

With that, the Ninth Circuit Court of Appeals gave the case back (remanded) to the lower court for a further analysis on this issue.

My opinion? Good decision. At the end of the day, paying a 100% late fee for a parking fine is truly excessive. The case is novel because we don’t see much litigation surrounding the Excessive Fines Clause of the Eighth Amendment. We do know, however, that the Eighth Amendment also encompasses the Cruel and Unusual Punishments Clause, which is the most important and controversial part of the Amendment.

The issues relating to that constitutional amendment are, in some ways, shrouded in mystery. What does it mean for a punishment to be “cruel and unusual”? How do we measure a punishment’s cruelty? And if a punishment is cruel, why should we care whether it is “unusual”?

Again, 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.

Reasonable Suspicion & 911 Calls

Concealed Carry and Alcohol - What's the Bottom Line? - Alien Gear ...

In United States v. Vandergroen, the 9th Circuit Court of Appeals held that the police’s search of a suspicious person was reasonable under the circumstances when bar patrons called 911 minutes before to report the man had a pistol on him.

BACKGROUND FACTS

Late on a Saturday evening of February 17, 2018, a worker at a bar in California called 911 to report that three patrons had seen a man in the area with a pistol on him. In response to this call, the police stopped the man as he drove away, discovered a pistol in his car, and placed him under arrest. The man, Mr.  Vandergroen, argued a Rule 12 motion to suppress the evidence. The lower federal court denied the motion. Vandergroen was subsequently convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), which is a federal criminal conviction.

On appeal, Vandergroen now argues that the 911 call should never have led to his stop in the first place because it did not generate reasonable suspicion, and that the evidence of the pistol should therefore have been excluded.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals disagreed with Mr. Vandergroen. It affirmed the lower court’s denial of Vandergroen’s motion to suppress and upheld his conviction.

The Court began by saying that under the Fourth Amendment, an officer may conduct a brief investigative stop only where s/he has a particularized and objective basis for suspecting the particular person stopped of criminal activity, commonly referred to as “reasonable suspicion.”

The Court further elaborated that while a 911 call may generate reasonable suspicion, it can only do so when, under the totality-of-the circumstances, it possesses two features. First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop.

Finally, the Court identified a number of factors that demonstrate the reliability of a tip. These facts include (1) whether the tipper is known, rather than anonymous; (2) whether the tipper reveals the basis of his knowledge; (3) whether the tipper provides detailed predictive information indicating insider knowledge, id.; whether the caller uses a 911 number rather than a non-emergency tip line; and (4) whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge.

With the above in mind, the Court of Appeals delved into its analysis.

“The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion,” said the Court. It reasoned that first, the statements by an independent witness were undoubtedly reliable. “Witness #2 provided his name and employment position, making him a known, and therefore more reliable, witness,” said the Court.

Second, the Court of Appeals reasoned that the statements by the bar’s patrons were also reliable. “Although the patrons remained anonymous during the call, which generally cuts against reliability, their statements exhibited sufficient indicia of reliability to overcome this shortcoming,” said the Court. Finally, the Court reasoned that the reported activity — possessing a concealed weapon  was presumptively unlawful in California and was ongoing at the time of the stop.

In conclusion the Court of Appeals held that the 911 call generated reasonable suspicion justifying the stop and the lower court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop. His criminal conviction was upheld.

My opinion? Mind you, this is a federal opinion. Under Washington law, however,  a bare report that someone is in possession of a firearm does not provide reasonable suspicion for an investigative stop. This is because Washington is both an open carry state and liberally grants concealed weapons permits. United States v. Brown.

In Washington, under RCW 9.41.300(1)(d), a stop may have been permissible in this case if the individual with the pistol had been in that portion of the lounge classified by the state liquor and cannabis board as off-limits to persons under twenty-one years of age. That’s because it is unlawful for any person to enter a bar with a firearm.

Please read my Legal Guide on Search and Seizure and contact my office if you, a friend or family member face criminal charges involving a questionable search or seizure of evidence. Hiring a competent and experienced defense attorney is the first and best step towards justice.

End ICE Courthouse Arrests

Image result for ice arrests at courthouse"

Excellent article in Crosscut by  Lilly Fowler describes how the Washington state Legislature is considering a bill that would prohibit federal immigration agents without a warrant from making arrests within one mile of a courthouse.

If signed, the legislation – SB 6522 – would also require judicial warrants to be reviewed by a court before being used. And federal immigration agents would have to check in with local court staff before entering a courthouse. A website monitored by the state Administrative Office of the Courts would track all arrests made at courthouses.

Finally, the bill would prohibit court staff, including prosecutors, from sharing information with federal immigration officials. A recent report from the University of Washington Center for Human Rights revealed that county prosecutors have been sharing information with U.S. Immigration and Customs Enforcement (ICE) and Border Patrol agents to facilitate the arrests of undocumented immigrants at state and local courthouses.

As reported by Ms. Fowler, the outcry over immigrants being arrested at courthouses by plainclothes ICE and Border Patrol officials has been persistent. Washington state Attorney General Bob Ferguson sued the federal government last month in an attempt to stop such arrests, and the state Supreme Court is looking at rules that would bar the apprehensions.

At a hearing on the bill last week before the House Civil Rights and Judiciary Committee, legislators heard testimony in Spanish from a man named Carlos. He told lawmakers he and his wife recently visited the courthouse in Ephrata, Grant County, to renew his car’s license plates. While his wife waited in the vehicle, Carlos stood in line inside the courthouse and noticed a man staring at him.

As Carlos exited the courthouse, another man with a gun approached him, introduced himself as a federal immigration official and, in Spanish, said, “Soy la migra” (or “I am ICE/Border Patrol”). Carlos was promptly arrested. Although he was eventually released by the ICE agent, the experience left him shaken and terrified.

Enoka Herat, an attorney with the American Civil Liberties Union of Washington, said the state would not be the first to protect its court system. In November, the Oregon Supreme Court barred warrantless arrests at courthousesCaliforniaNew York and New Jersey have also sought similar protections for immigrants. In Massachusetts, a federal judge barred courthouse arrests while a lawsuit makes its way through the court system.

My opinion?

Let’s hope SB 6522 gains support and passes. The bill  isn’t about hampering the work of law enforcement. It’s about but ensuring the public can use courts to pay fines, serve as witnesses, seek protection orders and pursue other matters related to the justice system, without the fear of unexpected encounters with law enforcement.  Equal access to courts is something both Democrats and Republicans should be able to agree upon.

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.