Category Archives: felony

Marijuana Arrests Increase.

ACLU, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jail, marijuana, Plain View, police, Prison, Race & Law, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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Excellent article from reporter Timothy Williams of the New York Times discusses a new study by the American Civil Liberties Union and Human Rights Watch which reveals that marijuana arrests were about 13.6 percent more than the 505,681 arrests made for all violent crimes, including murder, rape and serious assaults.

The report comes in the wake of the fatal police shooting of Keith Lamont Scott last month in Charlotte, N.C. Mr. Scott, 43, had attracted police attention in part because, the police said, he was smoking marijuana.

The report is the latest study to highlight the disparate treatment African-Americans often receive in the criminal justice system, including disproportionate numbers of blacks who are sent to jail when they are unable to pay court-imposed fees, or stopped by the police during traffic stops or while riding bicycles. Its many findings are disturbing.

THE REPORT’S FINDINGS:

  • Although whites are more likely than blacks to use illicit drugs — including marijuana, cocaine, heroin, methamphetamine and prescription drugs for nonmedical purposes — black adults were more than two-and-a-half times as likely to be arrested.
  • In Iowa, Montana and Vermont — places with relatively small populations of African Americans — blacks were more than six times as likely to be arrested on drug possession charges than whites.
  • In terms of marijuana possession, black adults were more than four times as likely to be arrested as white adults in the 39 states in which sufficient data was available.
  • In Manhattan, where blacks make up about 15 percent of the population, African-Americans are nearly 11 times as likely as whites to be arrested on drug possession.
  • African-Americans may also be more apt to face arrest, according to researchers, because they might be more likely to smoke marijuana outdoors, attracting the attention of the police.
  • The above disparities persist whether there are few or many African-Americans in a given area.

Mr. Williams also wrote that, according to criminologists, African-Americans are arrested more often than whites and others for drug possession in large part because of questionable police practices. Police departments, for example, typically send large numbers of officers to neighborhoods that have high crime rates. A result is that any offense — including minor ones like loitering, jaywalking or smoking marijuana — can lead to an arrest, which in turn drives up arrest rate statistics, leading to even greater police vigilance.

“It is selective enforcement, and the example I like to use is that you have all sorts of drug use inside elite college dorms, but you don’t see the police busting through doors,” said Inimai M. Chettiar, director of the Justice Program at New York University’s Brennan Center for Justice.

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.

Lawnmowers Aren’t Vehicles

"Plain Meaning" Rule, Bellingham Defense Attorney, felony, Property Crimes, Skagit County Criminal Defense, Theft, Theft of Motor Vehicle, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Barnes, the WA Court of Appeals Division III held that a riding lawnmower is not a “motor vehicle” for the the crime of Theft of a Motor Vehicle.

On June 22, 2015, defendant Joshua Barnes and a female companion, Danielle Goodman, drove a white pickup to Judy Fraker’s property near Leavenworth. Fraker was home. Barnes exited the pickup, mounted Fraker’s riding lawnmower, and started the mower’s motor. The mower was a Craftsman, gas-powered, self-propelled riding lawnmower, with a twenty-six horse power engine. Barnes drove the lawnmower up a ramp and into the bed of his pickup.

Fraker exited her home, confronted Barnes, ordered him to remove her lawnmower from his pickup and leave her premises. Barnes obeyed. Two days later, Barnes admitted to law enforcement that he attempted to steal the riding lawnmower.

The State of Washington charged Barnes with Theft of a Motor Vehicle, Driving With License Suspended in the Third Degree, and Criminal Trespass in the Second Degree. Barnes argued a Knapstad Motion to dismiss the allegation of Theft of a Motor Vehicle under arguments that the evidence was insufficient because a lawnmower is not a “motor vehicle.” The trial court agreed and dismissed the charge of theft of a motor vehicle without prejudice. The State pursued appealed.

The Court began by saying that Washington follows the “Plain Meaning” rule. In other words, to determine legislative intent, this court looks first to the language of the statute. If the statute’s meaning is plain on its face, the court will give effect to that plain meaning as the expression of what was intended. Here, the Court reasoned that a riding lawnmower meets the elements· of ‘motor vehicle’ if we read RCW 46.04.320 and .670 literally.

Nevertheless – and in a surprising twist – the Court questioned whether we should always follow the Plain Meaning principle. First, “The legislature sometimes uses inept language in expressing its intent,” reasoned the Court. Second, courts should interpret statutes to affect their purpose. “Therefore, any unlikely, absurd, or strained consequences resulting from a plain and literal reading of the statute should be avoided and a literal reading of RCW 46.04.320 and its definition of “motor vehicle” would lead to unintended and silly results,” reasoned the Court:

“As argued by Joshua Barnes, a literal reading of RCW 46.04.320 and its definition of ‘motor vehicle’ would lead to unintended and silly results. An iRobot Roomba, a self-propelled vacuum, would be a motor vehicle, since one could transport small property on the Roomba. A jokester could place her cat on top of the vacuum and send the iRobot Roomba down her neighborhood street. Theft of a child’s remote control car that includes a doll in the driver’s seat would also qualify for theft of a motor vehicle if we literally read RCW 46.04.320 and .670. Therefore, the purposes behind RCW 9A.56.065 should assist in limiting a literal meaning of the ‘motor vehicle’ definition.”

With that, the Court of Appeals affirmed the superior court’s dismissal of charges against Joshua Barnes for theft of a motor vehicle. “A riding lawnmower is not a motor vehicle for purposes of theft.”

My opinion? Good decision. I’ve argued many pretrial motions where my opponent’s statutory interpretations lead to absurd results. Sometimes, we must point out the obvious.

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.

“Stop & Frisk” of Friends

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, law enforcement, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Flores, the WA Supreme Court  decided that police officers may seize a defendant’s companions if officers can articulate a reason based specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.
 On November 2, 2013, an anonymous source reported to the Moses Lake Police Department that Giovanni Powell pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene of the incident. Officer McCain was familiar with Powell, and was soon updated that Powell had an arrest warrant.
 Officer McCain arrived at the reported address. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have any reason to suspect Flores of criminal activity.
 McCain parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered Powell to stop. As this was occurring, other officers arrived. Mr. Flores told officer he possessed a firearm in his pants. It was removed and secured. The State charged Flores with Unlawful Possession of a Firearm in the First Degree.
 Flores brought a CrR 3.6 motion to suppress all evidence of the gun. The judge granted the motion, which ultimately resulted in dismissal of the charges. The State appealed, and Division Three of the Court of Appeals affirmed the dismissal. The State appealed again to the WA Supreme Court.
 The court addressed the issue of whether it violates article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest.
 The court reasoned that an individual is seized when, under the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he is free to leave or decline a request due to an officer’s use of force or display of authority. State v. Rankin. This determination is made by objectively looking at the actions of the law enforcement officer.
 The court reasoned that an officer does not meet the standard required for a Terry stop in cases like this: “Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”
 Consequently, the Court gave factors from the WA Court of Appeals Div. III  decision State v. Mendes for determining what “an objective rationale” means when it comes to seizing a defendant’s companions. These Mendes factors include (but are not limited to) the arrest, the number of officers, the number of people present at the scene of the arrest, the time of day, the behavior of those present at the scene, the location of the arrest, the presence or suspected presence of a weapon, the officer’s knowledge of the arrestee or the companions and potentially affected citizens.
 “This is not an exhaustive list, and no one factor by itself justifies an officer’s seizure of non-arrested companions,” said the Court. “When determining whether there is an objective rationale, the court should look at all the circumstances present at the scene of the arrest.”
 Applying this “Objective Rationale Test,” the Court found that Officer McCain justifiably seized Mr. Flores to secure the scene of Powell ‘s arrest, and that the Officer’s actions were justified. The WA Supreme Court reversed the Court of Appeals, found the seizure was lawful and ruled the evidence of the gun should not have been suppressed.
 Justice McCloud dissented under arguments that officers must comply with Terry at the scene of an arrest, and that the new “Objective Rationale Test” adopted by the Court effectively circumvented time-tested case law:
“This holding creates a new exception to the Fourth Amendment’s warrant requirement, and we don’t have the power to create it–only the (United States) Supreme Court does. It’s also a new exception to our court’s consistent statements, for decades, that article I, section 7 provides more protection for individual privacy rights than the Fourth Amendment.”
 My opinion? The officers would have eventually found Mr. Flores’s firearm anyway if they followed protocol under a Terry stop. But they didn’t. Therefore, and similar to Justice McCloud, I’m concerned whether the “Objective Rationale Test” was wrongfully created to become another exception to the Fourth Amendment’s warrant requirement.

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.

Trial Apparel

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, Methamphetamine, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Caver, the WA Court of Appeals Division I decided a defendant’s constitutional rights were not violated when the court refused to allow him to wear jail clothing at trial.  It does not prejudice a defendant to wear civilian clothes.

Defendant Terry Caver was arrested and charged for Possession of Methamphetamine. Caver remained in custody when his trial began two months after his arrest. At the start of trial, he asked the trial court for permission to wear his jail clothes in front of the jury. He explained that the clothes “represent that I’m in here, that I’m not on the street. It represents what’s really going on in my life. I don’t want these people thinking that I’m on the streets when I’m not on the streets.”

The trial court denied Caver’s request, stating that “it causes much mischief if the defendant is clothed in regular jail garb.” The court explained to Caver that wearing jail clothes would cause the jury to speculate about why he was in jail and whether he posed a danger to them. The jury found him guilty.

He appealed on numerous grounds to include arguments that the trial court violated his due process rights by not allowing him to wear jail clothes at trial.

The court reasoned that  although a defendant has the right not to appear in jail or prison clothing pursuant to Estelle v. Williams, these rights do not include a broad freedom for the defendant to express himself through his dress.

“Compelling Caver to wear civilian clothes did not erode the “physical indicia of his innocence,” as requiring him to wear jail clothes or shackles would. It did the opposite by making him appear as any member of the public. Similarly, civilian clothes did not single Caver out “as a particularly dangerous or guilty person.” And civilian clothes did not offend the dignity of the judicial process or restrict Caver’s ability to assist counsel and testify.”

Furthermore, although some Defendants sometimes choose to wear jail clothes as a trial tactic, it does not imply that defendants have a right to pursue this trial tactic. Consequently, the Court of Appeals concluded that the trial court’s decision was not inherently prejudicial and that the trial court did not abuse discretion.

My opinion? Jail clothes make people look guilty. Period. That said, most defendants want to wear civilian clothing at trial. Looking “normal” – or at least not incarcerated – tells the jury the defendant might not be guilty of the charges.

Here, Mr. Caver wanted to wear his jail clothes at trial. Interesting. Was this a trial tactic? Who knows. I cannot speculate anything beyond this plain fact because I am not Mr. Carver’s attorney. However, as the court noted, ” . . . although some Defendants sometimes choose to wear jail clothes as a trial tactic, it does not imply that defendants have a right to pursue this trial tactic.”

Interesting opinion.

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

Assault is “Lesser Included” Charge for Indecent Liberties.

Assault, Bellingham Defense Attorney, felony, Jury Trial, Lesser Included Jury Instruction, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Bluford, the  WA Court of Appeals Div. I decided that Assault in the Fourth Degree satisfies the legal prong of the lesser included offense test for the crime of Indecent Liberties. Charles Bluford appealed his conviction for Indecent Liberties on arguments that the trial court failed to instruct the jury on the lesser charge of assault.

For those who don’t know, a “lesser-included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

Here, the Court reasoned that instructing juries on lesser included offenses “is crucial to the integrity of our criminal justice system,” and that  courts should therefore “err on the side of instructing juries on lesser included offenses.” Furthermore, the Court of Appeals reasoned that courts should instruct the jury about a lesser included offense if the jury could find that the defendant committed only the lesser included offense.

The Court analyzed whether a defendant is entitled to a lesser included offense instruction under the test announced in State v. Workman. Under this test, the defendant is entitled to a lesser included jury instruction when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed.

The court applied the Workman test and decided Bluford should have been granted a lesser included instruction for assault fourth degree. Here, the State charged Bluford with one count of Indecent Liberties. This requires that a person “knowingly cause another person who is not his or her spouse to have sexual contact with him or her or another.. . by forcible compulsion.” Accordingly, this crime requires knowledge as the mental state. Therefore, Workman’s factual prong was satisfied.

The common-law definition of assault that applies is an “unlawful touching with criminal intent.” Thus, reasoned the court, fourth-degree assault requires intent as the mental state.  Indecent liberties also requires “sexual contact.” Thus, the State must prove that the defendant acted with a sexual purpose. Accordingly, fourth-degree assault does not require a higher mental state than indecent liberties. Therefore, reasoned the Court, the Workman test’s legal prong is met here, as well.

Consequently, Bluford was entitled to a lesser included offense instruction on fourth-degree assault.

The court reversed his conviction.

My opinion? Good decision. Sometimes, Prosecutors “overcharge” the seriousness of criminal acts. For example, some offenses charged as Assault in the Second Degree should really be charged as Assault in the Fourth Degree. Consequently, it’s imperative for competent defense attorneys to try convincing judges to give more options to juries than “guilty” or “innocent” on overcharged offenses.

That’s why the “lesser included instruction” tactic is a valuable trial tool to seek reductions, especially for sex offenses, which are some of the most damaging criminal charges one could possibly face. A sexual assault or sex crime carries serious penalties, including loss of freedom, sexual deviancy treatment, lengthy registration requirements and negative public stigma. Sexual assault convictions also limit future job opportunities and possibly prevent people from seeing their families. The effects are devastating.

For more information on sex offense defense, please read my practice area Sex Offenses. 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.

“Joining” Multiple Offenses

Bellingham Defense Attorney, Due Process, felony, Joinder, Jury Trial, Prior Bad Acts, Prison, Rape, Robbery, Sentencing, Severance, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Bluford, the WA Court of Appeals Division I decided a trial court correctly joined a defendant’s multiple counts of robbery for one trial. The similarities between the crimes were adequate for the offenses to be cross admissible to establish a modus operandi.

The State charged Charles Bluford with nine felony counts. These included seven counts of Robbery in the First Degree plus a charge of Rape in the First Degree of one victim and Indecent Liberties of a separate victim.

The State initially charged Bluford under three different cause numbers, but moved to join all the counts for trial. Bluford moved to sever five of the counts from the others. The court considered these cross motions at the same hearing and joined all counts for trial.

The jury found Bluford guilty of eight counts and acquitted him of one count of Robbery. It sentenced him to life without the possibility of release. Bluford appeals.

The Court of Appeals began by discussing the statute and court rule regarding the “joinder” of criminal offenses. RCW 10.37.060 states the following:

When there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information, in separate counts; and, if two or more indictments are found, or two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated.

Also, CrR 4.3 says the following:

Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

The court reasoned that the joinder rule promotes the public policy goal of conserving judicial resources. Also, joinder is appropriate unless it is so “manifestly prejudicial” that it outweighs the need for judicial economy. In other words, courts may not join offenses if it would prejudice the defendant.

The court applied the four-factors guide from State v. Cotten to determine whether prejudice results from joinder:

(1) the strength of the State’s evidence on each of the counts; (2) the clarity of the defenses on each count; (3) the propriety of the trial court’s instruction to the jury regarding the consideration of evidence of each count separately; and (4) the admissibility of the evidence of the other crimes.

The Court applied the Cotten factors.

First, the Court of Appeals reasoned that the trial court correctly determined that the strength of the State’s evidence for each count was equivalently strong.

Second, Bluford asserted a general denial for each count. Therefore, he could not have been prejudiced by inconsistent defenses because his defenses were all the same.

Third, Bluford argues that the court’s instructions to the jury at the end of the case did not instruct the jury that it could not consider the evidence of other crimes as propensity evidence. However, Bluford failed to request such an instruction. And the trial court is not required to give such an instruction if the defendant fails to request one.

Fourth, the court determined that the evidence of each count would be cross admissible for the other counts for the purpose of showing modus operandi. It reasoned that although ER 404(b) prohibits introducing evidence of other bad acts as propensity evidence, such evidence is admissible for other purposes, such as proof of motive, plan, or identity. Under the modus operandi exception, evidence of other bad acts is admissible to show identity if the method employed in the commission of crimes is so unique that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged. The modus operandi must be so unusual and distinctive as to be like a signature.

In Bluford’s case, the trial court determined that the crimes were cross admissible for the following reasons:

Each incident occurred within an approximately two month period. Each incident occurred during hours of darkness. Each incident occurred in the Seattle metro area. Each incident occurred in a residential area. The defendant was a stranger to each victim. In each incident, the victims were alone when  . . . a male approached with a handgun and gave verbal demands to the victims. The descriptions of the handgun by the victims are similar. Four of the victims gave a description of the vehicle, which matches the vehicle the defendant was later found inside. Two of the three female victims were sexually assaulted during the course of the robberies. Although one of the female victims was not sexually assaulted during the robbery, she ran away at the time of the robbery, thereby limiting the opportunity for the defendant to sexually assault her . . . Therefore, although none of the incidents are a carbon copy of the others, the incidents are strikingly similar. Additionally, in each case the perpetrator approached the victim as he or she exited a car. And when the victim did not cooperate, the perpetrator forcefully took his or her property or assaulted the victim.

Consequently, modus operandi was proven. Finally, because Bryant failed to renew his motion to sever during trial, he technically failed to preserve for review the issue of severance.

Bluford’s convictions were upheld. However, the Court of Appeals vacated his sentence of life without the possibility of release and remanded for resentencing.

My opinion?

At trial, Prosecutors commonly try joining a defendant’s multiple offenses. As stated above, doing so creates judicial efficiency and shows propensity evidence under ER 404(b). Still, competent defense attorneys should try to sever multiple counts anyway; and most important RENEW THE MOTION DURING TRIAL. Failing to do so effectively waives the issue to be preserved for appeal.

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.

A “Missing Witness” Argument Cuts Both Ways.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Jury Trial, Pretrial Investigations, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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Fair warning folks, this is a post only trial attorneys can appreciate . . .

In State v. Goss, the WA Supreme Court held a defendant was properly barred from arguing that the jury could draw a negative inference from the fact the State had not offered a recording of a detective’s interview with the defendant.

Mr. Goss was charged with Goss was initially charged with one count of Child Molestation Second Degree on accusations that he sexually assaulted his former fiance’s granddaughter. Later, a charge of Attempted Child Molestation Third Degree was added.

The police interviewed Mr. Goss when the accusations first arose. The interview was recorded at the police station, and lasted 50 minutes.

Before trial, Goss moved to redact portions of the recorded interview relating to (1) pornography Goss’s home computer and (2) prior allegations of child molestation made against him. The State indicated that it did not plan to play the recording in its case in chief. The trial judge reserved ruling until and unless the recording was offered. Neither side moved to admit the recording during trial.

At closing argument, Goss was barred from arguing that the State failed to produce the video.

Goss was found guilty of the charges. He appealed. Among other arguments, he said the Prosecutor’s failure to admit the interview at trial was analogous to a party not offering an available witness. This is also called the “Missing Witness Doctrine, which is well-described in State v. Blair. ” Under the “missing witness” or “empty chair” doctrine it is a well-established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, he fails to do so, the jury may draw an inference that it would be unfavorable to him.

However, the WA Supreme Court rejected these arguments. It pointed out that Goss himself moved to redact portions of the recorded interview relating to prior allegations of child molestation made against Goss by his daughter. The Court also reasoned The detective who questioned Goss on the tape testified at trial. Consequently, Goss could have cross-examined the Officer on the witness and possibly got the recorded interview admitted, redacted or otherwise.  Coincidentally, ruled the Court, “Nothing in this record suggests the State’s decision not to play the tape was nefarious. Goss has not shown the trial court abused its discretion because the tape was analogous to a missing witness. ”

My opinion? It’s difficult to say the WA Supremes decided this wrong. I’ve won jury trials where the Prosecution has pointed the finger at Defense for failing to produce “missing witnesses.” Usually, these attacks from the State are rejected by courts because the State – and not the defense – carries the burden of proof. Asking the defendant to come up with more witnesses is a sly (and unlawful) way of shifting the burden to the defense.

The “Missing Witness” doctrine is rather funny in that it points the finger right back at the attorney who claims the other side failed to produce the “magic witness.”

WPIC 5.20 discusses the limited use of the “Missing Witness” defense/offense tactic. Basically, if a person who could have been a witness at the trial is not called to testify, jurors may be able to infer that the person’s testimony would have been unfavorable to a party in the case. Jurors may draw this inference only if they find that:

(1) The witness is within the control of, or peculiarly available to, that party;

(2) The issue on which the person could have testified is an issue of fundamental importance, rather than one that is trivial or insignificant;
(3) As a matter of reasonable probability, it appears naturally in the interest of that party to call the person as a witness;
(4) There is no satisfactory explanation of why the party did not call the person as a witness; and
(5) The inference is reasonable in light of all the circumstances.

The tactic is to be used sparingly, and with good reason: it points the finger right back at the accusing party! Here, that’s exactly what the WA Supreme Court decided.

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.

Gift Cards Are “Access Devices”

Access Devices, Bellingham Defense Attorney, felony, Knapstad Motion, Property Crimes, Retail Theft, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Nelson, the WA Court of Appeals Division II reversed the dismissal of the defendant’s case and decided a gift card is, in fact, an access device.

Defendant Angel Rose Marie Nelson was a Kmart employee. A surveillance video showed that Nelson left her cash register three times to retrieve an empty gift card, then activated each card by adding funds to it without adding cash to the cash register.

She activated an Amazon.com gift card for $100, a MasterCard gift card for roughly $205, and a JoAnn’s Fabric & Craft Store gift card for $25. She later used at least two of these cards.

The State charged Nelson with one count of second degree theft of an access device and one count of second degree possession of a stolen access device. Nelson moved to dismiss the charges under CrR 8.3(c) and Knapstad motion. She argued that the term “access device” could not include gift cards. The superior court granted Nelson’s motion, ruling that, as a matter of law, a gift card is not an access device. The State appealed.

Ultimately, the Court of Appeals reversed the dismissal of Nelson’s case.

First, the Court reasoned that, under MERRIAM-WEBSTER UNABRIDGED DICTIONARY, gift cards can access an account because the plain meaning of the word “account” is broad enough to cover a gift card’s balance:

“Under this definition, a gift card can access an account as described above. It is a card that can be used to receive goods or services of a specified value. A gift card thus shows a resulting balance. It is a device that can be used to access a record of a business relationship with outstanding credits, debits, or obligations, and a sum of money—that is, an account.”

In conclusion, the Court held that the definition of “access device” can include gift cards so long as they are a means of account access. The word “account” is not limited to a bank account because the plain language of the statute includes no such limitation. The funds to which a gift card provides access can be an account under this statute.

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.

Abandoned Cell Phone Searches

Abandonment Doctrine, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, felony, law enforcement, Plain View, police, Possession of Stolen Motor Vehicle, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Technology, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Samalia, the WA Supreme Court held that although cell phone information is protected by the Constitution, the defendant abandoned this privacy interest when he voluntarily left the cell phone in a stolen vehicle while fleeing from police.

Defendant Adrian Sutlej Samalia fled on foot from a stolen vehicle during a lawful traffic stop, leaving his cell phone behind in the vehicle. After Samalia successfully escaped, the police searched the cell phone without a warrant and made contact with one of the numbers stored in the cell phone. That contact led to Samalia’s identification as the owner of the phone and driver of the stolen vehicle.

On these facts, the State charged Samalia with Possession of a Stolen Vehicle. Samalia moved to suppress the cell phone evidence under CrR 3.6, arguing that the officers violated his constitutional rights when they seized and searched his cell phone with neither a warrant nor a valid exception to the warrant requirement.

The State responded that the warrantless search was valid under the abandonment doctrine. The trial court held that Samalia voluntarily abandoned any privacy interest that he had in the cell phone by leaving it in the stolen vehicle, which he also voluntarily abandoned, while fleeing from Office Yates. After denying Samalia’s suppression motion and subsequent motion for reconsideration, the trial court found Samalia guilty as charged in a bench trial.  Samalia appealed to Division III of the WA Court of Appeals. They upheld the trial court’s decision under the abandonment doctrine.

Ultimately, the WA Supreme Court decided the search was lawful and upheld Samalia’s conviction. It reasoned that article I, section 7 of Washington’s Constitution states that “no person shall be disturbed in his private affairs … without authority of law,” and although the WA Constitution embraces the privacy expectations protected by the Fourth Amendment to the United States Constitution – and in some cases, may provide greater protection than the Fourth Amendment – the search was nonetheless lawful under the abandonment doctrine.

ABANDONMENT DOCTRINE

The Court reasoned that the “abandonment doctrine,” a person loses normal privacy interests in their property upon abandoning it. The abandonment doctrine is not rooted in any obligation by law enforcement to find the owner of property. Basically, it allows law enforcement officers to retrieve and search voluntarily abandoned property without implicating an individual’s rights. The court reasoned that in this sense, voluntarily abandoned property is different from lost or mislaid property, in which the owner maintains a privacy interest in the property and the finder may have an obligation to seek out the owner to return the property.

Thus, when an individual flees from law enforcement and leaves a cell phone behind in a stolen vehicle, a trial court may find that the cell phone is no less abandoned than any other item that was also left in the stolen vehicle.

Here, the Court declined to find an exception to the abandonment doctrine for cell phones. Consequently, the WA Supreme Court decided the trial court properly found abandonment under these facts.

In conclusion, the WA Supreme Court affirmed Samalia’s conviction on the grounds that the information derived from the search of Samalia’s cell phone was properly admitted as evidence under the abandonment doctrine.

DISSENTING OPINION

Justice Yu authored the dissenting opinion, which was also signed by Justice Stephens and Justice Sheryl Gordon McCloud. In short, these dissenting justices all agreed that common law doctrines like the Abandonment Doctrine cannot be applied mechanically to new technology. Second, the abandonment doctrine applies to personal property generally and not digital technology. Third, digital cell phone data remains a private affair, even if the cell phone itself has been voluntarily abandoned.

“The people of Washington are entitled to hold safe from government intrusion the unprecedented wealth of personal information accessible through a cell phone, even if the phone itself has been voluntarily abandoned. If government officials discover a cell phone and want to search its digital data for evidence of criminal activity, they may seize and secure the cell phone to preserve any evidence it may contain, but they must obtain a warrant before searching its digital data. Because the police did not obtain a warrant here, the search was unlawful and its fruits should have been suppressed. I respectfully dissent.”

My opinion?

Last year, I discussed this case when the Court of Appeals decided it in my blog post titled, State v. Samalia: Search of Abandoned Cell Phone is Lawful. Again, I disagree with the court’s majority decision in this case. The trial court should have suppressed the cell phone search back in the beginning of this case. Under these circumstances, the abandonment doctrine is simply not the proper legal vehicle to permit a cell phone search. Using this doctrine leaps too far in the wrong direction. Kudos to the dissenting judges in this case. Although the decision was not deeply divided (6-3), the dissenters got it right. Officers need to get search warrants. Period.

My general advice to the general public?

Never leave incriminating evidence on your cell phone. No pictures, videos, nothing. A lost phone could now be considered “abandoned” and searchable by authorities.

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.

Backpack Searches When Jailed

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, Drug Offenses, Evidence, felony, Inventory Searches, law enforcement, Methamphetamine, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Dunham, the WA Court of Appeals Division II decided that a warrantless search of a suspect’s locked backpack pocket was a lawful inventory search where the defendant was booked into jail, a search of his person produced knives, the backpack was to be logged into the jail’s temporary storage area and the officer felt knives on the outside of the backpack.

On January 29, 2014, Sergeant Gwen Carrell of the Chehalis Police Department responded to a reported shoplifting at a local department store. Upon arrival, Sgt. Carrell met with loss prevention officers. They told Sgt. Carrell that defendant Jason Dunham had multiple knives in his backpack and that they had removed the backpack from Dunham’s reach. Sgt. Carrell placed Dunham in handcuffs for officer safety and searched him for weapons. She located two more knives on Dunham’s person, arrested Dunham for theft and booked him into jail.

Sgt. Carrell searched Dunham’s backpack for items to be logged into the jail’s temporary storage. This is called an inventory search. In short, it is every police department’s policy to inventory items to be held in its storage facility for any dangerous items. As part of this policy, knives are to be kept in secure containers, preventing them from puncturing anything.

Sgt. Carrell used Dunham’s keys to unlock the backpack pocket. She opened the pocket and observed a flashlight, a butane torch, and a glass pipe. What Sgt. Carrell thought was a knife was actually the butane torch. The residue in the glass pipe tested positive for methamphetamine. The State charged Dunham with Possession of a Controlled Substance and Theft in the Third Degree.

Dunham filed a motion to suppress the evidence found during Sgt. Carrell’s search of the locked portion of his backpack pursuant to CrR 3.6, arguing that the search violated his constitutional rights. The trial court denied the motion and ruled that the inventory search was valid. Later, the trial court found him guilty on both counts at a bench trial.

Dunham appealed. He argued that the warrantless search of his backpack’s locked pocket violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. He claims that the search was not a valid inventory search.

Unfortunately for Dunham the Court of Appeals disagreed. First it reasoned that  inventory searches are an exception to the requirement that police have a warrant to search people’s personal property. Second, the Court described the purpose of an Inventory Search:

“The purpose of an inventory search is not to discover evidence of a crime, but to perform an administrative or caretaking function. The principal purposes of an inventory search are to (1) protect the owner’s property, (2) protect the police against false claims of theft by the owner, and (3) protect the police from potential danger. The scope of an inventory search should be limited to those areas necessary to fulfill its purpose.”

Third, the Court reasoned that Officer Carrel’s safety concern about potentially exposed knives in the locked pocket was reasonable based on the facts that (1) several knives were found on Dunham’s person, (2) additional knives were found in the unlocked portion of Dunham’s backpack, (3) one of the knives found in the backpack was unsheathed, and (4) Sgt. Carrell felt what she believed to be another knife in the locked pocket of the backpack. Therefore, a manifest necessity existed for searching the locked portion of the backpack.

Finally, the Court concluded that the inventory search was valid and affirmed Dunham’s conviction:

“Substantial evidence supports the challenged finding of fact. Given the reasonable indication that the locked portion of the backpack contained dangerous items along with Sgt. Carrell’s reasonable fear of being stabbed, we hold that a manifest necessity existed to search No. 46169-2-II 8 inside the locked portion of the backpack. Therefore the trial court’s findings of fact support its conclusion that the inventory search was valid. We affirm Dunham’s conviction.”

My opinion? Search and seizure issues are a HUGE aspect of unlawful possession cases. The legal issues come down to whether the search was lawful, and if not, whether the evidence can be suppressed. Here, the court’s decision appears sound. Under Washington law, officers may search a suspect’s person if they feel “hard and sharp” objects through the outside of a suspect’s clothing. This is done for officer safety. Similarly, Inventory Searches are conducted under the same policy of preserving officer safety. Here, the hard and sharp objects felt through Dunham’s backpack raised a safety concern. Therefore, the search appears lawful.

For more information, please review my Legal Guide titled, “Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.” There, I provide links to my analysis of Washington cases discussing searches of persons, vehicles, cars and homes. Also, please go the search engine of my Blog if you have specific queries about these issues.

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.