Category Archives: felony

Pre-Arrest Silence & Business Records Exceptions to Hearsay Rule

Bellingham Defense Attorney, Business Record, Constitutional Rights, Evidence, felony, Fifth Amendment, Hearsay, Jury Trial, Miranda, Pre-Arrest Silence, Search and Seizure, Self-Incrimination, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Magana, the WA Court of Appeals held (1) the Fifth Amendment is not an obstacle to the State’s introduction of a suspect’s pre-arrest silence as evidence of guilt, and (2) the State failed to lay a proper evidentiary foundation for the Lineup ID Report, however, the erroneous admission of the document was harmless error.

Sergio Magana Jr., an adult, met met fourteen-year-old Y.L. through Facebook. After exchanging text messages, Y.L. and Mr. Magana made plans to meet at Y.L.’s home. Mr. Magana wanted to be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside Y.L.’s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told Y.L. not to mention his name and to delete all of their text messages because her “age scared him.”
After approximately two weeks, Y.L. reported Mr. Magana’s conduct to the police. Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text messages could be extracted. The police then began looking for Mr. Magana.
After about six weeks, Mr. Magana made contact with the police and spoke to a detective over the telephone. During the call, Mr. Magana arranged to meet with the police. However, he never showed up for his appointment. About a month later, Mr. Magana finally met with a police detective in person. He was advised of his Miranda rights and acknowledged that he had indeed met Y.L. over Facebook, but he denied having intercourse. Mr. Magana was charged with one count of third degree rape of a child. Following a mistrial and then a second trial, he was found guilty by a jury and sentenced by the trial court. Mr. Magana appealed.
1. PRE-ARREST SILENCE.
On appeal, Mr. Magana argued the jury should not have known about his failure to appear for his initial police interview. He claims this was an improper comment on his right to silence, in violation of the Fifth Amendment to the United States Constitution.
However, the Court of Appeals reasoned that the rule from the  United States Supreme Court’s Salinas v. Texas holds that the Fifth Amendment is not an obstacle to the State’s introduction of Mr. Magana’s pre-arrest silence as evidence of guilt. Furthermore, although Washington State’s Constitution typically provides more protections than the U.S. Constitution, “this is not an area where our state’s constitution affords greater protection than the federal constitution.”
Consequently, the Court of Appeals reasoned Mr. Magana was not under arrest or any sort of police custody. They said his scheduled police interview was voluntary, and to the extent Mr. Magana’s failure to appear for the interview was relevant, the State was entitled to present this evidence.
PHOTO LINEUP EVIDENCE.
Also on appeal, Mr. Magana argued the State’s photo lineup exhibit was hearsay and admitted into evidence without proper foundation. However, the State argued that the exhibit was a properly authenticated business record.
The Court reasoned that under RCW 5.45.020 and ER 803(6), a document may be admitted as a business record as long as a witness testifies to the document’s identity and mode of preparation, and explains that the document “was made in the regular course of business, at or near the time of the act, condition or event.”
Here, the exhibit at issue consisted of three pages. The first page is an array of six hand-numbered photos, one of which depicts Mr. Magana. The second page is entitled “Lineup ID Report,” which is a computer-generated report that documents biographical information, including dates of birth, for the six individuals depicted on the photo array. The third page is a copy of the written admonishment form Y.L. signed prior to reviewing the photo array.
However, The Court of Appeals reasoned that during the photo identification process, Y .L. failed to review the second page of the report. Also concerning was that at trial, no witness testimony was presented regarding the creation of the Lineup ID Report included on page two.
For these reasons, and because no foundation was laid for the Lineup ID Report, it was improperly admitted as a business record. Nevertheless, and given the entirety of the evidence, the erroneous inclusion of the Lineup ID Report was harmless error which did not impact the jury’s verdict. With that, the Court of Appeals affirmed Mr. Magana’s convictions, but remand to the trial court for resentencing.

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

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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.

Holiday Drinking In The U.S.

Bellingham Defense Attorney, Constitutional Rights, Distracted Driving, Domestic Violence, Drowsy Driving, Drug Offenses, DUI, felony, Jail, law enforcement, marijuana, Miranda, misdemeanor, police, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Violent Crime, Washington State Patrol, Whatcom County Criminal Defense, , ,

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.

THE NORTHEAST

New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheese heads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.

THE NORTHWEST

Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.

RELIGIOUS STATES

Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.

HOLIDAY DUI PATROLS IN WASHINGTON STATE

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Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.

SEEK COMPETENT LEGAL REPRESENTATION IF YOU FACE CRIMINAL CHARGES THIS HOLIDAY SEASON.

For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

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

Happy holidays!

-Alex Ransom, Esq.

State v. Ortuno-Perez: “Other Suspect” Evidence

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In State v. Ortuno-Perez, the WA Court of Appeals held that a murder defendant was wrongfully prohibited from introducing evidence that another person, who was armed at the murder scene, actually committed the murder.

In the early morning hours of October 12, 2013, Jesus Castro was shot in the head while standing outside of a house in Renton. He died several days later.

The single shot was fired at close range from a .22 caliber firearm. At the time the shot was fired, anywhere between 5 to 12 people were standing in close proximity to Castro. In that group were 2 individuals particularly pertinent here, the defendant Santiago Ortuno-Perez and Austin Agnish—each of whom was armed with a handgun at the time.

On the same day that Castro was shot, Ortuno-Perez was identified as a suspect and subsequently arrested outside of a house in Kent. In the days that followed, Ortuno-Perez was identified as the shooter by several witnesses who were present at the scene, including Agnish. Ortuno-Perez was subsequently charged with one count of murder in the first degree, committed while armed with a firearm.

Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence that another person, not him, killed Castro. In particular, his counsel sought to identify Austin Agnish as the shooter, to cross-examine the State’s witnesses for potential bias in their testimony, and to present additional evidence indicating that a person other than Ortuno-Perez was the shooter.

However, the trial court denied Ortuno-Perez’s request because Ortuno-Perez had not demonstrated that Agnish had taken steps to commit the crime.

Four days later, Ortuno-Perez’s counsel filed a detailed offer of proof regarding the “other suspect” evidence that the defense would have introduced but for the trial court’s adverse ruling. Again, the trial court excluded the “other suspect” defense.

On the 10th day of testimony, Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had been denied by the trial court’s “other suspect” rulings. The judge denied the motion for mistrial.

The jury convicted Ortuno-Perez of murder in the second degree, committed while armed with a firearm. He was sentenced to 280 months of confinement. Ortuno-Perez appealed.

Ultimately, the WA Court of Appeals reversed  Ortuno-Perez’s conviction and ordered a new trial.

“OTHER SUSPECT” EVIDENCE.

The court reasoned that Washington’s “other suspect” evidence rule—applicable to proffered evidence that a specific person other than the defendant committed the charged crime—has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value. Furthermore, the court reasoned that State v. Franklin holds that such evidence should be admitted if there is an adequate nexus between the alleged other suspect and the crime. Thus, the threshold analysis for “other suspect” evidence involves a straightforward, but focused, relevance inquiry, reviewing the evidence’s materiality and probative value for whether the evidence has a logical connection to the crime.

THE SIXTH AMENDMENT.

The Court further reasoned that the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant a meaningful opportunity to present a defense. This right, however, is not absolute. It may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible. As with all evidence, the proponent bears the burden of establishing the admissibility of “other suspect” evidence.

Because the premise underlying the introduction of “other suspect” evidence is to show that someone other than the defendant committed the charged crime, the standard for admission is whether the proffered evidence tends to indicate a reasonable doubt as to the defendant’s guilt. Evidence is relevant when it is both material—the fact to be proved is of consequence in the context of the other facts and the applicable substantive law — and probative — the evidence has a tendency to prove or disprove a fact.

SUPPRESSING “OTHER SUSPECT” EVIDENCE VIOLATED ORTUNO-PEREZ’S RIGHTS UNDER THE SIXTH AMENDMENT.

Here, the Court of Appeals agreed that the “other suspect” evidence that Ortuno-Perez proffered actually supported a reasonable doubt as to his guilt. Prior to trial, defense counsel sought permission to present evidence to the jury that Agnish, not Ortuno-Perez, killed Castro. In his briefing, Ortuno-Perez’s counsel indicated that it planned to present evidence that Agnish (1) was using prescription drugs at the time that Castro was shot, potentially altering his perception of the shooting and his memory thereof, (2) was armed with a handgun and in close proximity to Castro at the time of the shooting, (3) lied about having access to guns other than the one he admitted carrying at the time of the shooting, and (4) was a member of a gang and had expressed a belief that Castro belonged to a rival gang.

However, the Court of Appeals reasoned that the trial court abused its discretion by improperly excluding the proffered evidence. It said the evidence proffered by Ortuno-Perez relating to Agnish’s potential culpability was of a type that tended to logically connect Agnish to Castro’s murder:

“If credited by the jury, it would establish Agnish’s motive (a gang clash), his opportunity (he was present at the murder scene and in close proximity to Castro at the instant of the shooting), and his means (he was armed with a handgun). Thus, the evidence proffered was plainly relevant to the question of the identity of Castro’s murderer and was of a type that, if credited by the jury, would support a reasonable doubt as to Ortuno-Perez’s guilt.”

The Court of Appeals said that as a result of the trial court’s erroneous rulings , Ortuno-Perez was unfairly prejudiced in two major respects: (1) his ability to confront the witnesses against him was compromised by the rulings preventing him from exploring the potential biases of witnesses who may have been covering for Agnish out of either affinity or fear; and (2) his ability to argue in closing argument that logical inferences from the evidence actually admitted during trial supported a reasonable doubt as to his guilt was compromised by rulings precluding him from suggesting to the jury that anyone other than Ortuno-Perez himself had shot Castro.

The trial court’s erroneous rulings were not harmless. The “other suspect” evidence which the trial judge excluded could have caused a reasonable juror to doubt whether Ortuno-Perez was guilty as charged. Consequently, the Court of Appeals reversed the conviction and remanded for a new trial.

My opinion? Good decision. Under the Sixth Amendment, allowing attorneys to argue inferences from the evidence is a rudimentary aspect of this right.  Defense Counsel must be afforded the utmost freedom in the argument of the case and some latitude in the discussion of their causes before the jury.

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.

“Common Authority” Vehicle Searches

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In State v. Vanhollebeke, the WA Court of Appeals Division III decided a vehicle owner’s consent to search overrode the driver’s express objections.

On the night of November 10, 2014, Sergeant Garza pulled the truck over that was facing the wrong way on a one-way street. Sergeant Garza got out of his patrol car and approached the truck. The defendant Mr. Vanhollebeke got out of the truck and started walking toward Sergeant Garza. Sergeant Garza ordered Mr. Vanhollebeke to get back in the truck. Mr. Vanhollebeke then said he had locked himself out of the truck. This unusual behavior made Sergeant Garza suspicious.

Dispatch advised that Mr. Vanhollebeke’s license was suspended. Dispatch also advised that Mr. Vanhollebeke was not the registered owner of the truck, and that the truck belonged to a man named Bill Casteel. Sergeant Garza’s plan at this point was to cite Mr. Vanhollebeke for driving with a suspended license and then release him.

However, another police officer noticed a glass pipe with a white crystal substance on it sitting in plain view near the dashboard, which he believed was drug paraphernalia. Also, the truck’s steering column was “punched,” which indicated the truck was stolen. The officers did not release Mr. Vanhollebeke and kept him in their custody.

The officers asked for permission to search the truck. Mr. Vanhollebeke refused. Sergeant Garza contacted Mr. Casteel, the actual owner of the truck, at Casteel’s home. Mr. Casteel told Deputy Barnes that Mr. Vanhollebeke had permission to use the truck. Casteel also gave police permission to search his truck and gave Deputy Barnes a key to it.

Deputy Barnes returned directly to the scene. He used the key to open the truck and began to search it. He looked under the driver’s seat and saw a revolver. The glass pipe tested positive for methamphetamine. The officers confirmed through dispatch that Mr. Vanhollebeke had a prior felony conviction.

The State charged Mr. Vanhollebeke with first degree unlawful possession of a firearm. Mr. Vanhollebeke argued a CrR 3.6 motion to suppress the physical evidence on the grounds that he had refused to give the officers consent to search the truck and also that the stop’s length and scope were unreasonable. However, the trial court admitted the evidence and denied Mr. Vanhollebeke’s motion to suppress. The jury convicted Mr. Vanhollebeke.

Vanhollebeke appealed on the issue of whether Mr. Casteel’s consent overrode Mr. Vanhollebeke’s express objection to search.

The Court of Appeals upheld the search. It reasoned that the Fourth Amendment to the United States Constitution guarantees people the right to be free from unreasonable searches and seizures. Warrantless searches are generally illegal unless they fall within one of the exceptions to the warrant requirement. However, one exception is consent to search by a person with authority over the place or thing to be searched. This exception includes consent given by a third person, other than the defendant.

The court further reasoned that to grant valid consent, the third party must have common authority over the place or thing to be searched. The court explained that common authority does not mean that the third party has a mere property interest in the place or thing being searched. Rather, to establish lawful consent by virtue of common authority, (1) a consenting party must be able to permit the search in his own right, and (2) it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search.

The court decided Mr. Vanhollebeke’s right to use the truck was dependent on the owner’s unrevoked permission:

“Here, Mr. Vanhollebeke had the actual right to exclude all others from the truck except for Mr. Casteel. For this reason, Mr. Vanhollebeke did not have a reasonable expectation of privacy if Mr. Casteel wanted to search his own truck or allow another person to do so.”

With that, the Court concluded Mr. Casteel’s consent to search his truck overrode Mr. Vanhollebeke’s objection. Therefore, the search did not violate Mr. Vanhollebeke’s reasonable expectation of privacy and the trial court did not err in denying Mr. Vanhollebeke’s CrR 3.6 motion to suppress. Vanhollebeke’s conviction was affirmed.

My opinion? Common authority search issues don’t happen very often in criminal defense. But when they do, it’s imperative to hire competent criminal defense who can leverage a strong motion to suppress the evidence and/or divide the “common parties” to the search. Perhaps the greatest lesson to learn is to simply avoid transporting illegal contraband in plain view within borrowed vehicles.

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.

Criminalizing “Illegal Protests”

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The Bellingham Herald reported that Senator Doug Ericksen of Ferndale, a Republican state senator who campaigned for President-elect Donald Trump, wants to propose a bill that criminalizes what he calls “illegal protests.”

In short, his bill would create a new crime of “economic terrorism” and would allow felony prosecution of people involved in protests that block transportation and commerce, damage property, threaten jobs and put public safety at risk.

Erickson said his bill also would apply to people who fund and organize such protests. “We are not just going after the people who commit these acts of terrorism,” Ericksen said. “We are going after the people who fund them.”

American Civil Liberties Union of Washington spokesman Doug Honig told The Associated Press Wednesday that while they’ll need to see an actual bill, Ericksen’s statement throws out a lot of broad rhetoric. Honig said the following:

“We’re already concerned that some of its loose terms appear to be targeting civil disobedience as ‘terrorism.’ That’s the kind of excessive approach to peaceful protest that our country and state do not need. Let’s keep in mind that civil rights protesters who sat down at lunch counters could be seen as ‘disrupting business’ “and ‘obstructing economic activity,’ and their courageous actions were opposed by segregationists as trying to ‘coerce’ business and government.”

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My opinion? Yes, protest is ugly. It’s loud. It’s inconvenient. And it’s American. Fundamentally American. As in, First Amendment American. It’s no secret that the First Amendment plays a large role in enabling robust public political discussion. In particular, expressive freedom can help to generate dynamic political change.

True, there are exceptions to the general protections to the First Amendment; including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising.

Despite the exceptions, however, the legal protections of the First Amendment are some of the broadest of any industrialized nation, and remain a critical, and occasionally controversial, component of American jurisprudence.

Erickson’s “economic terrorism” bill is problematic. It attempts to solve little more than a perceived threat and ultimately criminalizes liberty. If proposed and passed through the GOP-controlled Senate, it would likely would face serious obstacles in the current Democratic-controlled House. Even if the bill is passed and made into statute, it would immediately face constitutional challenges as being overly broad and/or facially invalid as applied.

Please contact my office if your friends or family are charged with crimes related to the exercise of their rights to publicly protest. I’m honored to represent clients who face criminal charges for essentially exercising their First Amendment rights. These prosecutions should be dismissed, debunked and exposed.

Cell Phone Spying Is Unlawful

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In State v. Novick, The WA Court of Appeals Division II held the Defendant committed Computer Trespass in the First Degree when he installed “Mobile Spy” software on the victim’s cell phone and sent commands to activate the recording feature of the program in order to intentionally record the victim’s private communications.

David Novick and Lisa Maunu began dating in December 2013. Novick bought her a new mobile phone on March 11, 2014, and set it up for her. Unbeknownst to Maunu, Novick installed an application called Mobile Spy on Maunu’s new phone. The application allowed a person to log onto the Mobile Spy website and monitor the phone on which the application was installed.

From the Mobile Spy website, a user could access all the information stored on the monitored phone, including text messages, call logs, and e-mails. The versions of Mobile Spy software also permitted a user to send commands to the targetted phone from a “live control panel” on the website. One such command allowed a user to activate the phone’s microphone and recording features and record audio into a file that could then be downloaded from the website.

Eventually, Novick was caught after his girlfriend Maunu became suspicious. In short, Maunu became concerned because Novick expressed specific knowledge about Maunu’s health conditions, medications, doctors’ appointments, and private conversations.

With the assistance of Novick’s employer, it was discovered that Novick had downloaded over 500 audio files from Mobile Spy, searched for GPS (global positioning system) locations, and searched for particular telephone numbers.

The State charged Novick with eight counts of Computer Trespass in the First degree and eight counts of Recording Private Communications based on Novick’s use of Mobile Spy to record Maunu’s conversations. At trial, Novick was convicted on all charges.

Novick appealed on arguments that (1) the State failed to provide sufficient evidence that he intentionally recorded a private communication, and (2) entry of eight convictions of each crime violated his right against double jeopardy because the correct unit of prosecution covers the entire course of conduct.

Ultimately, the Court of Appeals disagree with Novick and affirmed his convictions.

  1. THE PROSECUTION SHOWED SUFFICIENT EVIDENCE OF COMPUTER TRESPASS FIRST DEGREE.
First, the Court explained that Computer Trespass in the First Degree occurs when a person intentionally gains access without authorization to a computer system or electronic database of another and the access is made with the intent to commit another crime. The Court further reasoned that here, the underlying crime was Recording Private Communications. A person commits the crime of recording private communications when he intercepts or records private communications transmitted by any device designed to record and/or transmit said communications.
Second, the Court reasoned that a forensic review of Novick’s computer activity revealed that he intentionally logged into Mobile Spy’s webiste and sent commands from the website to Maunu’s phone. Also, Novick’s computer records showed that he visited the live control panel on Mobile Spy’s website, downloaded audio files collected from Maunu’s phone and intentionally recorded Maunu’s private communications.
Accordingly, the Court held that the State presented sufficient evidence that Novick committed the crime of Recording Private Communications, and with that, committed Computer Trespass First Degree.
2. NO EVIDENCE OF DOUBLE JEOPARDY.
Next, the Court rejected arguments that Novick’s multiple convictions for Computer Trespass and Recording Private Communications violated the prohibition against Double Jeopardy because the correct unit of prosecution for each crime covers the entire course of Novick’s conduct.
The Court began by saying the Fifth Amendment to the United States Constitution provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I, section 9 of the Washington Constitution says, “No person shall . . . be twice put in jeopardy for the same offense.” In short, explained the Court, these double jeopardy provisions prohibit multiple convictions for the same offense.
Furthermore, when a defendant is convicted for violating one statute multiple times, the proper inquiry is, “What unit of prosecution has the Legislature intended as the punishable act under the specific criminal statute?” The Court explained that in order to determine whether there is a double jeopardy violation, the question becomes “what act or course of conduct has the Legislature defined as the punishable act?” Consequently, the scope of the criminal act as defined by the legislature is considered the unit of prosecution.
The Court explained that the first step is to analyze the statute in question. If the statute does not plainly define the unit of prosecution, we next examine the legislative history to discern legislative intent. Finally, a factual analysis is conducted to determine if, under the facts of the specific case, more than one unit of prosecution is present.
Ultimately, the Court was not persuaded by Novick’s “plain language of the statute” argument the if the legislature intended a single unit of prosecution based on a course of conduct, it could have said so plainly.
“What matters is not what the legislature did not say, but what it did say,” said the Court. “The plain language of the statutes support the conclusion that the units of prosecution . . . are each separate unauthorized access and each recording of a conversation without consent.” The Court further reasoned that while Novick’s actions were somewhat repetitious, they were not continuous:
“On at least eight separate and distinct times, Novick logged onto Mobile Spy’s website, accessed Maunu’s phone by issuing a command through the live control panel, and downloaded at least eight different recordings of conversations between Maunu and various other people. Each access was separated by time and reflected a separate intent to record a separate conversation.”
The Court concluded that the State proved that Novick intentionally recorded eight private communications. Additionally, Novick’s actions constituted multiple units of prosecution, and therefore, his multiple convictions did not violate double jeopardy principles. Thus, the Court affirmed Novick’s convictions.
My opinion? On the one hand, it’s shocking that citizens can be convicted of felonies by accessing mainstream computer software. Shouldn’t the software itself be outlawed instead? On the other hand, I see how parents can legally using the same software to track their minor children’s whereabouts, conversations and activities. That type of activity os not illegal.
This case presents a very good example of an atypical computer crime. We see that Computer Trespass First Degree is very similar to standard Burglary charges in that the State must prove the Defendant intends to commit a crime once they gain access to the victim’s computer system or electronic database. Recording Private Communications is a crime.  Therefore, if a defendant records private communications after gaining access, they can be found guilty of Computer Trespass in the First Degree. Simple.
Computer crime cases require experts and/or lay witnesses who are competent in discussing these matters. Speaking for the defense, it’s usually best to hire experts familiar with computer forensics to determine if/when the said access was unlawful and/or intentional. Again, the State must prove intent.

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.

“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.

Possessing Controlled Substances for Family Members.

"Plain Meaning" Rule, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Search and Seizure, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for giving pills to family

In State v. Yokel, the WA Court of Appeals Division II decided that it’s a valid defense for defendants to possess a controlled substance pursuant to a household member’s valid prescription.

On February 15, 2015, a police officer discovered defendant Mary Yokel’s car parked in front of a motel room. Yokel had an active arrest warrant. Officer Croy knocked on the motel room door and made contact with Yokel. He then arrested Yokel on the warrant and searched her person incident to arrest. During the search, Officer Croy located one pill in Yokel’s pants pocket and verified it was Vicodin, containing hydrocodone. Yokel said she was holding the Vicodin pill for her daughter, who has a valid prescription. The State charged Yokel with two counts of possession of a controlled substance.

At trial, Yokel wanted to introduce evidence that she possessed the Vicodin pursuant to her 16-year-old daughter’s valid prescription. Yokel’s defense was that on the day in question, she had taken two of the pills out of the Vicodin bottle, gave one to her daughter, and put the other one in her pocket after determining that her daughter should not take two pills.

However, the trial judge denied Yokel’s motion to continue the case to allow her daughter to testify. Also, the court granted the Prosecutor’s motion in limine to exclude any evidence regarding Yokel’s daughter’s valid Vicodin prescription.

As a result, at trial, Yokel was not allowed to testify that she possessed the controlled substance for the purpose of administering it to her daughter. The jury found Yokel guilty of one count of possession of a controlled substance (hydrocodone). Yokel appealed.

  1. RCW 69.50.4013(1) PROVIDES THE DEFENSE THAT DEFENDANTS MAY HOLD PRESCRIPTION PILLS FOR FAMILY MEMBERS.

Ultimately, the Court of Appeals agreed with Yokel that RCW 69.50.4013(1) permits a defendant to possess a household member’s valid prescription for a controlled substance. It reasoned the statute provides an affirmative defense to a person who lawfully possesses a controlled substance obtained “directly from” or “pursuant to” a valid prescription. By including these different phrases in the statute, the legislature indicated its intent that each phrase have a different meaning.

Additionally, former RCW 69.50.308 (2013), one of the Uniform Controlled Substances Act’s statutes, allows practitioners to dispense controlled substances to an “ultimate user” pursuant to a prescription. The Act defines an “ultimate user” as an individual who lawfully possesses a controlled substance for the individual’s own use.

Consequently, reasoned the Court, this definition of “ultimate user” indicates the legislature’s intent to allow an ultimate user to possess a controlled substance for the use of another household member:

“Interpreting former RCW 69.50.4013(1) as prohibiting ultimate users from lawfully possessing a controlled substance prescribed to another household member leads to an absurd result. Reading the statute in such a way criminalizes behavior that may involve a common caretaking function. For example, a son who picks up his bedridden father’s prescription medication or a mother who administers a prescription medication to her infant daughter would be in violation of the statute.”

2. THE RIGHT TO PRESENT A DEFENSE.

The Court of Appeals said the trial court violated Yokel’s constitutional right to present a defense when it suppressed her from testifying why she held the pill for her daughter. The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant the right to present a defense to the crimes charged.

Here, a defendant has the right to present admissible evidence in her defense and must show the evidence is at least minimally relevant to the fact at issue in her case.  Further, a defendant is entitled to a jury instruction supporting her theory of the case if there is substantial evidence in the record supporting it. “The trial court effectively barred Yokel from presenting a defense because it excluded all evidence regarding her daughter’s prescription and declined to give her proposed affirmative defense instruction,” reasoned the Court. “In light of our ruling above, the instruction and all evidence in support thereof should have been allowed at trial.”

The Court of Appeals concluded the trial court misinterpreted former RCW 69.50.4013(1) and, as a result, denied Yokel the right to present a defense. Therefore, it reversed Yokel’s conviction and remanded for a new trial.

My opinion? Excellent decision. The court rightfully went to arguments of statutory construction and interpreted the plain meaning of the statute to reach its decision. Well done.

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.

Premeditated Murder Unproved.

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Homicide & Manslaughter, Jury Trial, Lesser Included Jury Instruction, Prison, Prosecutorial Misconduct, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Hummel, the WA Court of Appeals Division I reversed a defendant’s conviction for first degree murder due to insufficient evidence of premeditation. It reasoned that proof of a strong motive to kill the victim does not, in itself, establish planning or the method of killing. Because the prosecutor did not request the court instruct the jury on murder in the second degree, the Court dismissed the case with prejudice.

The facts are interesting. Two juries in Whatcom County Superior Court found defendant Bruce Allen Hummel guilty of killing his wife, Alice Hummel. Both were retired Alaska teachers. Their two daughters lived on Alabama Hill in Bellingham in the early 1990s. This case was heavily covered in the Bellingham Herald.

The story begins with Mr. Hummel informing their children that their mother decided to move away and leave the family. Over the years, the girls continued to receive letters and gifts in the mail from Alice. Bruce Hummel told the girls Alice had earned a promotion and moved to Texas.

In 2001, the girls reported their mother missing in 2001. They recalled the strange circumstances of their mom’s disappearance. Bellingham police detectives found only traces of their mother’s existence: a current driver’s license from Alaska, monthly disability deposits from a teachers’ retirement system in Alaska, and withdrawals from a bank account in Alaska. Once detectives confronted him with $340,000 in disability checks he had collected under Alice’s name, Mr. Hummel admitted Mrs. Hummel had been dead for years. He claimed she committed suicide by cutting her wrists. Her body was never found.

Hummel was convicted of 12 counts of wire fraud in federal court, for the theft of the disability checks, then charged with murder in the first degree in Whatcom County.

At his first trial in August 2009, Hummel of first-degree murder in August 2009. He appealed as he started serving a sentence of 45 years in prison. The Washington State Court of Appeals found, in 2012, that that there was sufficient evidence to prove the case, but that Hummel’s rights were violated during voir dire, when potential jurors were questioned in private about sensitive issues in their personal lives. (Many other similar, serious cases have been overturned in Washington for not undertaking what is called the Bone-Club analysis, essentially a checklist to avoid violating a defendant’s right to a public trial).

At his second trial in May 2014, Hummel was again convicted of first-degree murder. This time he was sentenced to 26 years in prison, a shorter term because the Court of Appeals found his federal crimes should not count toward his criminal history because there was no comparable state law to federal wire fraud in 1990.

Hummel appealed with assistance from the Washington Appellate Project. Hummel argued there was insufficient evidence to support the conviction because the State did not prove beyond a reasonable doubt the essential element of premeditation.
The Court of Appeals agreed. It reasoned that no trier of fact could have found beyond a reasonable doubt that Hummel killed Alice with premeditated intent to commit murder in the first degree. Reversal for insufficient evidence is “equivalent to an acquittal” and bars retrial for the same offense.  Also, the Court reasoned that the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in prior proceedings. Because the prosecutor did not request the court instruct the jury on the lesser included crime of murder in the second degree, the Court of Appeals held it could not remand to enter a judgment on murder in the second degree.
The Court of Appeals reversed and vacate the conviction for premeditated murder in the first degree, and remand the case back to Superior Court to dismiss the conviction with prejudice.
My opinion? This isn’t over. I’m certain the State shall appeal to the WA Supreme Court.

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.