Category Archives: felony

State v. Winterstein: Parole Officers Cannot Search A Home If Facts Do Not Support the Officer’s Belief That Probationer Lives There.

Constitutional Rights, Due Process, felony, Knock & Talk, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Parole and probation have grown far beyond resources allocated to support them

In State v. Winterstein, the WA Supreme Court held that parole officers cannot search a home if the facts do not support the officer’s belief that that defendant on probation lives there.

Terry Lee Winterstein was convicted of Unlawful Manufacture of Methamphetamine after his probation officer conducted a warrantless search of his residence. After trial, Winterstein’s counsel discovered that Winterstein had reported a change of address with the Department of Corrections at least three weeks prior to the search.

Neverthless, the probation officer searched Winterstein’s prior residence. Winterstein argued that the evidence gathered as a result of the warrantless search should be suppressed because his probation officer did not have the authority of law to search a house that was not Winterstein’s documented residence.

The trial court denied the motion and the Court of Appeals affirmed. The Court of Appeals also held that regardless of the illegal search, the evidence could be admissible under the “inevitable discovery doctrine”—that is, evidence that police would have ultimately or inevitably discovered through other (lawful) means.

The case wound its way up to the WA Supreme Court.

First, the Court addressed whether the probation officer’s search of the Winterstein’s former residence was proper.  They reasoned that, generally speaking, individuals under Department of Corrections supervision have a lesser expectation of privacy, and can be searched on the basis of a reasonable suspicion of a probation violation.  However, the Court also said that probation officers must have probable cause—a higher standard—to believe that their probationers live at the residences they search:

“In this context, probable cause exists when an officer has information that would lead a person of reasonable caution to believe that the probationer lives at the place to be searched. The information known to the officer must be reasonably trustworthy. Only facts and knowledge available to the officer at the time of the search should be considered.”

Second, the Supremes addressed the Inevitable Discovery Doctrine.  They reasoned it is well-established that article I, section 7 of the Washington Constitution provides greater protection of privacy rights than the Fourth Amendment of the U.S. Constitution. Section 7 says: “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

While federal cases have allowed for inevitable discovery, and the state Court of Appeals has applied the doctrine, the Supreme Court said the doctrine is “speculative and does not disregard illegally obtained evidence”—and is therefore incompatible with the state constitution’s expansive protection of privacy.

My opinion?  Extremely well-articulated and correct decision.  The WA Supremes’ handling/dispatching of the Inevitable Discovery Doctrine acknowledges the expanded freedoms under the WA Constitution in comparison to the U.S. Constitution.  Admitting evidence under the Inevitable Discovery Doctrine leaves no incentive for the State to comply with the constitution’s requirement that arrests precede searches.

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.

Amid Recession Meth Menace Evolves

Bellingham, Bellingham Defense Attorney, Drug Court, Drug Offenses, felony, Methamphetamine, Studies, , ,

Crystal meth: Europe could now see a surge in supply and use

Apparently, the meth problem has grown in the face of dwindling State/County budgets.

My opinion?  It makes sense.  My last blog discussed how heroin use increased in Whatcom County.  Similarly, I would expect meth use to increase as well.  It’s a sad state of affairs.  We’ve all felt the crunch of this economy: people lose their jobs, financial situations seem hopeless, we need to feel better, and, for some, drugs provide the outlet.

Know this: meth is a particularly nasty drug bringing particularly nasty consequences.  Under Washington’s Sentencing Reform Act (SRA), a person with no criminal history is exposed to 12-20 months PRISON for delivering methamphetamine.  RCW 69.50.401(2)(b).  Meth charges are also classified as Class B felonies, which are serious felonies under the SRA.  Finally, delivery charges automatically prohibit a defendant from entering Drug Court.

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

Heroin Use On the Rise in Whatcom County

Bellingham, Bellingham Defense Attorney, Drug Court, Drug Offenses, felony, Whatcom County Criminal Defense, , ,

Google Searches Could Predict Heroin Overdoses - Scientific American

Unfortunately, heroin use is increasing in Whatcom County.

The evidence?  Increased demand for outpatient rehab has more than doubled, needle exchanges increased 36 percent for spring/summer compared to the same time last year at the county Needle Exchange Program, the number of jail inmates going through heroin withdrawals has increased 7 to 10 percent, arrests for heroin use and sale have increased, and more people are entering rehab.

The theories behind the increase?  The drug doesn’t have to be injected anymore, it’s fairly easy to get, addicts are getting younger and, in a recession, it’s cheaper than drugs that offer similar highs.

My opinion?  The article appears spot-on.  I’ve certainly seen a spike in heroin charges filed against defendants.  I only hope that abusers get help as soon as possible.  The Whatcom County Drug Task Force is VERY experienced at investigating/busting drug rings.

Please contact my office if you, a friend or family member face Drug Offenses or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Patton: WA Supreme Court Acknowledges Search and Seizure Protections Afforded by Arizona v. Gant.

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, law enforcement, marijuana, misdemeanor, police, Police Misconduct, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can Police Search Your Car Without a Warrant?

In State v. Patton, the WA Supreme Court held that an automobile search which happens after arrest is not justified unless the defendant is within reaching distance of the passenger compartment at the time of search and the search is necessary for officer safety or to secure evidence of the crime of arrest.

Randall Patton was wanted on a felony warrant.  A Skamania County Sheriff Deputy spotted him. Patton was on his property and leaning into his own car through the window, rummaging with something on the seat.  The Deputy told Patton he was under arrest.  Patton fled, but was soon apprehended inside a trailer.

Deputies searched the car and found methamphetamine. Patton challenged that the search violated his state and federal constitutional rights because it was not a valid search incident to arrest. The trial court suppressed the evidence but was reversed by the Court of Appeals.

The Court found that Patton was arrested when the officer “manifest[ed] an intent to take [him] into custody” while Patton was standing by his car. Nevertheless, “the search incident to arrest exception is narrow and should be applied only in circumstances anchored to the justifications for its existence.”  The court elaborated their reasoning with the following:

The question before us, then, is whether it would stretch the search incident to arrest exception beyond its justifications to apply it where the arrestee is not a driver or recent occupant of the vehicle, the basis for arrest is not related to the use of the vehicle, and the arrestee is physically detained and secured away from the vehicle before the search. We believe it would.

Congratulations to Justice Jim Johnson, who found the case identical to Arizona v. Gant, decided earlier this year by the United States Supreme Court.   In Gant, the U.S. Supremes held that a search conducted by police officers after handcuffing the defendant and securing the scene violates the Fourth Amendment’s protection against unreasonable searches and seizures.

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

State v. Iniguez: How Were the Defendant’s Speedy Trial Rights NOT Violated?

Constitutional Rights, Discovery, Due Process, felony, Jail, Speedy Trial & Continuances, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Speedy Trial | Law offices of Alexander Ransom

Can’t agree with the Supremes on this one . . .

In State v. Iniguez, the WA Supreme Court decided a defendant’s speedy trial rights were not violated even though a defendant waited in jail 8 months and objected to all continuances.

Following his arrest on First Degree Robbery, Mr. Iniguez remained in custody pending a joint trial with his codefendant.  An 8-month delay between arraignment and trial took place.  During this time, the State moved for a total of four trial continuances, the last of which the State sought because it learned — belatedly — that a key witness was out of town.  Iniguez objected to all continuances.  The trial court denied his objections and pretrial motions.  At trial, the jury found Iniguez guilty.  He appealed.

The Court of Appeals reversed Iniguez’s conviction.  The court held the eight-month delay between arrest and trial was prejudicial and violated Iniguez’s constitutional right to speedy trial.

However, the WA Supremes decided the delay did not violate the time-for-trial court rule, CrR 3.2, and did not violate the defendant’s Sixth Amendment or Const. art. I, § 22 constitutional right to a speedy trial.

The Court reasoned that Article I, Section 22 of the state constitution does not offer greater protections than the Sixth Amendment to the U.S. Constitution. Using the six-part Gunwall test, the Court determined there was no clear reason to find greater protections in the state constitution, so the two provisions should be applied similarly.

Also, under the four-factor Blakely analysis, the Court also reasoned that although the circumstances of the delay were substantial enough to presume harm to Iniguez, the level of violation of Iniguez’ speedy trial rights wasn’t enough to justify dismissing his case.

The Court ruled 5-4 against Iniguez, holding there was no constitutional violation of his right to a speedy trial.

My opinion?  My thoughts are similar to dissenting Judge Sanders.  I agree with the majority opinion that the length of delay in this case — coupled with the fact that Iniguez spent all of it in custody — gave rise to a presumption of prejudice.  The defendant’s trial delay was nearly nine months.  The delays arose because of the State’s need to interview witnesses, joinder with the co-defendant, scheduling conflicts, and the late discovery of the unavailability of a key witness one week prior to trial.

None of the delays were caused by Iniguez himself.  Indeed, he objected to continuing his case at every opportunity!  Finally, Iniguez was prejudiced because he was in jail during this entire process.  This is very substantial.  Incarceration carries detrimental effects: loss of job, disruption of family life, idleness, etc.  Time spent in jail is simply dead time.

How were Iniguez’s Speedy Trial rights NOT violated?

Again, bad decision . . .

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

State v. Stately: Vehicular Homicide By Disregard Is NOT A Violent Offense; Some Defendants Eligible for First Offender Waiver.

Due Process, DUI, felony, First Time Offender Waiver, Homicide & Manslaughter, Legislation, Sentencing, Violent Crime, Washington Court of Appeals, , ,

Top Attorneys Handling Violent Crimes in Phoenix, AZ

In State v. Stately, the WA Court of Appeals held that Vehicular Homicide By Disregard is NOT a Violent Offense and that some defendants are eligible for the First-Time Offender Waiver.

About a week before her 18th birthday, Ms. Stately drove a car while intoxicated.  Unfortunately, she caused an accident that killed her best friend.  Stately was charged — and later convicted — of Vehicular Homicide by Disregard under RCW 46.61.520(1)(c).  At sentencing, the State recommended 17 months of incarceration.  However, Stately argued she was entitled to a first-time offender waiver under former RCW 9.94A.650 because her crime was not defined as a violent offense.

The trial court agreed.  Stately was sentenced under the first-time offender waiver to 30 days of incarceration, 12 months of community custody, and 4,000 hours of community restitution (community service).

For those who don’t know, a “first-time offender” is any person who has no prior felony convictions.  At sentencing, the court may waive the imposition of a sentence within the standard sentencing range.  The sentence imposed under the first-time offender provision is not an exceptional sentence but is, rather, a waiver of the standard sentence range.

On appeal, the Prosecution argued that Stately was not eligible for a first-time offender waiver because she committed a violent offense.

However, the Court of Appeals thought different.  It reasoned that there are three types of vehicular homicide, all currently class A felonies.  Subsection (xiv) lists the first two types, homicide by intoxication and recklessness, but does not include the third type, homicide by disregard.  Former RCW 9.94A.030(50)(a)(xiv).

The court further reasoned, “If we read the statute to define Vehicular Homicide by Disregard as a violent offense simply because it is a class A felony, then subsection (xiv) would be superfluous.  We presume, however, that the legislature does not include superfluous language and we interpret statutes to give meaning to each section.

Here, it is impossible to harmonize the statute’s terms in subsection (i) with its terms in subsection (xiv).  The later subsection, relating specifically to vehicular homicide, is more specific than subsection (i), which relates generally to all class A felonies.  Applying the specific-general doctrine, the specific terms of subsection (xiv) prevail and Stately’s Vehicular Homicide by Disregard conviction is not a violent offense”  (emphasis supplied).

My opinion?  Again, excellent decision.  It’s pleasing when our legal system takes an academic approach to cases by methodically reviewing the WORDING and LEGISLATIVE INTENT of statutes.  Fortunately, that’s exactly what happened here.  The court avoided a huge miscarriage of justice by refusing to allow the general rule of “violent offense” swallow legislative exceptions to the rule.

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

State v. Kenyon: Courtroom Congestion Is No Reason For Delay

Constitutional Rights, Due Process, felony, Firearm, Speedy Trial & Continuances, Washington Supreme Court, , ,

A PACKED COURTROOM. This photo relates to the story because it is a packed courtroom like the Maycomb courtroom in Tom Rob… | Photo, Historical photos, Picture show

In State v. Kenyon, the WA Supreme Court held that courtroom congestion is no reason for delaying a trial.

On February 15, 2006, Mr. Kenyon was charged with six counts of unlawful possession of a firearm and was incarcerated while awaiting. After multiple delays his case eventually went to trial in August—well beyond the time limits provided by the speedy trial rule (CrR 3.3).

For those who don’t know, under the speedy trial rule, a defendant who is detained in jail must have a trial set within 60 days of arraignment. If a defendant is not brought to trial within the rule’s time limits, the court must dismiss the charges with prejudice so long as the defendant objects within 10 days after notice of trial date is mailed.

Some periods of time are excluded when computing the date for trial. For example, continuances granted by the court are excluded, as well as “unavoidable or unforeseen circumstances” that are beyond the control of the court or of the parties.

Kenyon argued his right to a speedy trial was violated as no court was available to hear his case. The State argues the trial court properly followed the scheduled and that his attorney asked for many continuances. The trial court held the delay was “unavoidable” as the judge was presiding over another case and the other judge was on vacation.

The Supreme Court however, has said that courtroom congestion—as opposed to scheduling conflicts or trial preparation—is not a valid reason for delay.

The Court determined that despite the allowance for “unavoidable or unforeseen circumstances,” the speedy trial rule still requires trial courts to document the details of unavailable judges and courtrooms. The failure to do so in this case violated Kenyon’s right to a speedy trial and the Court dismissed the charges with prejudice.

My opinion?  Clearly — and rightfully —  the Supremes gave teeth back to the  Speedy Trial Rule.  In short, trials must happen within a certain period of time; and if they don’t, and/or if the case is not continued correctly, then the case should be dismissed.  It’s that simple.

However, for the last few years (decades?) our Appeals courts have taken exception to the general rule; often to the degree where where the exceptions have swallowed the rule.  Needless to say, I’m extremely happy the WA Supremes decided Kenyon in this manner.

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

State v. Kyllo: When It Makes Sense, Argue Self Defense

Assault, Constitutional Rights, Due Process, felony, Ineffective Assistance, Jury Trial, Self-Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Undercover inmate describes violence in jail

In State v. Kyllo the WA Supreme Court held that the  jury instruction misstated the law on Self-Defense. Moreover, the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, Mr. Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense.

At trial, Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal, he asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion.

The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured — “One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

My opinion?  Excellent decision.  Reminds defense attorneys to stay cognizant of the jury instructions they provide.  For those who don’t know, a jury instruction is an instruction given by the court to a jury at the conclusion of presentation of all evidence in a trial, and after the lawyer’s closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations.  The attorneys prepare the instructions.

Here, the defense attorney gave the “Acting on Appearances” instruction.  The instruction presents a good starting point for the circumstances surrounding this particular case (Convict A is mad-dogging Convict B, Convict B attacks Convict A first  — and acting on Convict A’s appearances — because he believes Convict A will attack and get the advantage of surprise).  Unfortunately, the instruction, by itself wasn’t enough.

As a matter of practice, I believe both a self defense instruction AND and “Acting on Appearances” instruction work best in combination with each other.  Speaking from my own trial experience, everyone on the street embraces self defense.  It allows us to fight back when we’re attacked.  Simple.

However, the soft-spoken pacifists out there (who are INCREDIBLY hard to spot at jury selection) are downright offended by the “Acting on Appearances” instruction.  Many juries simply cannot promote violence beyond the context of self defense.  Yet even a pacifist will fight to save their own life.

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.

When Men Are Victims of Domestic Violence

911 Call, Assault, Bellingham Defense Attorney, Domestic Violence, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

Male domestic abuse victims 'suffering in silence' - BBC News

An article on msn.com discusses Domestic Violence when the perpetrator is female and the victim is male.

According to the article, a recent study showed that 64 percent of the men who called a DV hotline were told that they “only help women,” and only half were referred to programs for male perpetrators.  Overall, only 8 percent of the men who called hotlines classified them as “very helpful,” whereas 69 percent found them to be “not at all helpful.”  Worse, when an abused man called the police, the police were more likely to arrest him than to arrest his abusive female partner.

My opinion?

I’ve handled hundreds of domestic violence (DV) cases.  Truthfully, female-on-male DV doesn’t happen often.  Indeed, I can count ON ONE HAND cases I’ve worked where a female defendant abused her male boyfriend/husband.  Either it rarely happens, or doesn’t get reported.  Probably both.

Still, it’s shameful that female-on-male DV isn’t taken as seriously.  Societal norms probably have much to do with it (men are physically stronger, they should have the wherewithal to “handle” an angry/violent female, etc.).

You should know this, however: BY WASHINGTON STATUTE, POLICE MUST ARREST SOMEONE IF THEY ARE SUMMONED VIA 911 PHONE CALL.  There’s no getting around it.  No arguing with police.  They will arrive, separate you two, investigate the scene, gather evidence, interview witnesses, determine who the primary aggressor is, and arrest them.

In addition, a DV perpetrator can be charged with Interfering With a 911 Call – a gross misdemeanor – if the perpetrator attempts to stop the victim from calling the police.

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

State v. Engel: WA Supreme Court Reversed Overly Broad Burglary Conviction

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Property Crimes, United States Supreme Court, Washington Court of Appeals, , ,

118 Fence Ideas and Designs - Different Types With Images

In State v. Engel, the WA Supreme Court ruled that a man suspected of stealing aluminum auto wheels from a rural business wasn’t guilty of committing Burglary in the Second Degree — an extremely serious felony — because the property wasn’t fenced on all sides.

Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute.

The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top.

However, the rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law.

Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.”

My opinion?  I wholeheartedly agree with the WA Supremes for two reasons.  First, under the state’s interpretation of “Burglary,” would-be petty criminals who trespass might be liable for burglary even if the property line at their point of entry were unfenced and unmarked, even if they remained on the property without approaching any buildings or structures, and even if the property were such that they could enter and remain without being aware that it was fenced.  These kinds of examples are well outside the category of offenses the legislature intended to punish as burglary.

Second, Burglary is a serious crime with serious consequences. An arrest and conviction for a residential burglary, or any other property crime, can be a life-changing event that may result in penalties such as mandatory state prison time. Residential burglaries have reached epidemic proportions in many communities and courts are routinely handing out stiff penalties, even to first time offenders.

Again, good opinion.

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