Category Archives: felony

Assault or Swim Lesson?

Assault, Bellingham Defense Attorney, Child Abuse, Evidence, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Backlash over 'self-rescue' swimming classes for toddlers | News | The Times

In State v. Loos, the WA Court of Appeals held that although the defendant repeatedly submerged a toddler in a river during an impromptu swimming lesson, there was a lack of evidence proving the defendant’s actions were Assault.

FACTUAL BACKGROUND

Defendant Ms. Loos was babysitting J.T.S., a nonverbal, speech-delayed two-and-a-half-year-old toddler whom she had cared for throughout his infancy. Loos and a friend, Ms. Tetzlaff, decided to take a group of seven children to swim in the Jordan River that day.

While swimming in the river, Tetzlaff became concerned about Loos’s conduct. Tetzlaff testified that Loos picked up J.T.S. and said “it’s time to swim.” For the next minute – which was caught on camera – Loos engaged an impromptu swim lesson and tried teaching J.T.S. a swim technique called “infant self-rescue” by teaching him to float on his back.

In the 51-second video, Loos can be seen holding J.T.S. on his back in the water, and is heard telling him “when we scream, we go under.” After a moment, J.T.S. was submerged in the water for a few seconds and Loos pulled him back up out of the water. Loos repositioned J.T.S. on his back, at which point he began to struggle and tried to pull away.

Loos told J.T.S. again not to scream and he was again submerged. This time, Loos had one hand under J.T.S. and one hand on his chest. At trial, Tetzlaff testified that Loos was “holding him under the water.” T.L. similarly testified he saw Loos push J.T.S. under water, and T.L. could see J.T.S. flailing his arms while submerged. When Loos lifted him out of the water, he came up coughing and screaming. Eventually, Loos ended the swim lesson.

On December 1, 2017, approximately two and a half years later, the State charged Loos with one count of assault of a child in the third degree. During trial, Loos moved to dismiss the charge for insufficient evidence. The trial court denied this motion, although it acknowledged its decision was a “close call.”

The jury found Loos guilty. She appealed on the grounds of insufficient evidence.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals began by saying due process of law requires that the State prove every element of a charged crime beyond a reasonable doubt in order to obtain a criminal conviction.

Furthermore, the court cited State v. Green in saying that in order to evaluate whether sufficient evidence supports a conviction, the court views the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.

“Dismissal with prejudice is required when there is insufficient evidence at the close of the prosecution’s case in-chief to sustain a charged offense,” said the Court of Appeals.

Next, the court gave the statutory definition of “bodily harm” as “physical pain or injury, illness, or an impairment of physical condition,” And that this pain or impairment must be accompanied by “substantial pain.”

Finally, the Court of Appeals reasoned whether there was sufficient evidence that T.J. suffered substantial pain from the swimming incident. “J.T.S.’s coughing when pulled out of the water caused him some physical pain,” said the Court. “But neither the testimony nor the 51-second video of the incident supports any contention that J.T.S. was unable to quickly and easily eliminate the water from his throat or that he remained in any pain once he did so.”

“The evidence was undisputed that J.T.S. did not require CPR, did not vomit, did not lose consciousness, did not appear to have any swelling of his belly, did not sustain any lung injury, and needed no medical treatment. There is no evidence J.T.S. was inconsolable as a result of any ongoing pain or that any momentary pain he may have experienced lasted for any period of time after he coughed and Loos removed him from the water.” ~WA Court of Appeals

The Court of Appeals concluded by saying that no reasonable jury would find that J.T.S. suffered substantial pain that extended for a period sufficient to cause considerable suffering. With that, the Court of Appeals reversed Loos’s conviction.

My opinion? Good decision. The trial court erred when it denied Ms. Loos’ Motion to Dismiss pursuant to State v. Green. Better known as a Green Motion, this tactical trial maneuver allows defendants to request the judge dismiss criminal charges after the Prosecution has presented its evidence and rested its case.

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.

Privacy & Text Messages

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Methamphetamine, Mount Vernon Criminal Defense Attorney, Privacy, Search and Seizure, Skagit County Criminal Defense, Technology, Text Messages, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Cop Cams New To Most But Old School For Modesto PD - capradio.org

Privacy & Text Messages. In State v. Bowman, the WA Court of Appeals held that a police officer violates a defendant’s constitutional rights by sending a text message to the defendant from an unfamiliar phone number while impersonating a known contact of the defendant.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On appeal, Bowman argues the trial court erred in denying his motion to suppress evidence that flowed from his text message conversation with the DHS Agent. Specifically, he argues that DHS Agent’s impersonating a known contact of his through text messages violated his right to privacy under the Washington Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under article I, section 7 of the Washington Constitution, no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

“Interpretation of this article requires a two part analysis,” said the Court. “First, we must determine whether the action complained of constitutes a disturbance of private affairs,” said the Court. “If we determine that a valid private affair has been disturbed, we then must determine whether the intrusion is justified by authority of law.”

The DHS Agent’s Actions Disrupted Mr. Bowman’s Private Affairs.

The Court of Appeals began by defining “Private affairs” as those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass without a warrant.

Based on that, the Court reasoned Mr. Bowman did not talk with someone he thought was a stranger. Rather, he conversed with a person who represented himself as someone that Bowman knew. Therefore, reasoned the court, Bowman had a reasonable expectation of privacy for that conversation. The DHS agent invaded that right of privacy.

The DHS Agent Was Not Acting Under Authority of Law.

The Court of Appeals reasoned that although Mr. Schabell consented to the search of his phone, there was no proof that he consented to being impersonated.

“Therefore, Dkane was not acting under authority of law, and violated Bowman’s right of privacy,” said the Court. “The trial court erred by failing to suppress the evidence obtained by that violation of privacy.”

With that, the Court of Appeals reversed Mr. Bowman’s conviction and remanded for a new trial, with instructions to suppress evidence obtained in violation of Bowman’s right to privacy.

My opinion? Good decision.

Crime Fell In First 6 Months of COVID

Bellingham Defense Attorney, Coronavirus, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

Coronavirus Is Slowing Down the Criminal Justice System. Will Criminals Cash In?

According to a recent FBI Report, crime fell in the first 6 months of Covid. More specifically, violent and property crime both plunged across the United States in the first six months of 2020 as the coronavirus pandemic swept the country.

Even though lockdowns to prevent the spread of Covid-19 were inconsistent and non-existent in some areas, murders fell 14.8 percent from a year earlier and rapes dropped 17.8 percent, according to preliminary data compiled by the FBI.

Violent robbery fell 7.1 percent, and non-violent thefts and larceny fell by slightly more from the first half of 2019, the FBI said.

But arson jumped in the first half of this year, especially in large cities and in West, it said. Arson cases rose more than 52 percent in cities with populations over one million, and were up 28 percent in the western part of the country. The FBI did not offer any explanation of the decline in crime overall, or the surge in arson.

But the period covered by the data coincides with the country’s response to the coronavirus pandemic, including the declaration of a national emergency on March 13, California’s stay-at-home order on March 19, and New York issued a stay-at-home order on March 20.

Violent crime of all types fell in the period by 4.8 percent in the northeast and by smaller levels in the West and Midwest. But violent crime increased compared to 2019 in the South, by 2.5 percent. Generally southern states lagged others in taking serious steps to prevent the spread of the coronavirus.

Please contact my office if you, a friend or family member face criminal charges. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Cloud Storage & Privacy

Bellingham Defense Attorney, Constitutional Rights, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Privacy, Sex Crimes, Skagit County Criminal Defense, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Best cloud backup of 2020: Top ways to get your data backed up online | TechRadar

Cloud Storage & Privacy. In State v. Harrier, the WA Court of Appeals held that a person holds no privacy interest in  images obtained by an internet cloud storage service provider who then gives the images to law enforcement.

BACKGROUND FACTS

Synchronoss Technologies, Inc. is an internet cloud storage provider that provides cloud based storage for Verizon Wireless customers. The defendant Mr. Harrier had a Verizon account and subscribed to Synchronoss Cloud storage.

Synchronoss ran a cursory search of all stored digital files and found six digital images with hash values matching those of known instances of child pornography. Synchronoss reported this information via CyberTip to the National Center for Missing and Exploited Children (NCMEC) who forwarded the information to local police for investigation.

The police opened and viewed the six image files and confirmed that the images were child pornography. Police then obtained search warrants based on the descriptions of the images and served them on Verizon and Synchronoss. The search warrant directed Synchronoss to provide “all information” held by Synchronoss associated with the suspect telephone number associated with the images.

Police received information from Verizon that confirmed that Harrier was the subscriber/account holder for the suspect telephone number. Synchronoss also gave police a thumb drive containing account data associated with the suspect telephone number.

Law enforcement obtained a search warrant for Harrier’s residence. They seized Harrier’s cell phone. The cell phone was determined to be the same phone associated with the Verizon account and the Synchronoss files that were the basis of the initial search warrant.

Law enforcement interviewed Harrier after advising him of his constitutional rights prior to asking questions. He made incriminating statements. Harrier was later charged with two counts of first degree possession of depictions of a minor engaged in sexually explicit conduct and three counts of second degree possession of depictions of a minor engaged in sexually explicit conduct.

Prior to trial, Harrier filed a 3.6 motion to suppress the evidence against him, and the trial court denied the motion. The parties proceeded to a bench trial. Harrier was found guilty as charged. Harrier appealed on arguments that the police, by opening and viewing the images from NCMEC, exceeded the scope of Synchronoss’ lawful search of the images and thus, the opening and viewing of the images was unlawful, and the trial court erred by denying his motion to suppress.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that Harrier had no privacy interest in the images obtained by Synchronoss and delivered to the police; therefore, the police’s viewing of the images was not a warrantless search.

The Court reasoned that the Fourth Amendment protects a person’s subjective and reasonable expectation of privacy. Also, the WA Constitution in article I, section 7 provides that no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

However, the Court reasoned that if a private affair is not disturbed, then there is no Constitutional violation. Also, the Court rejected Harrier’s arguments the Private Search Doctrine prohibited the police from obtaining contraband:

“The Private Search Doctrine is based on the rationale that an individual’s reasonable expectation of privacy is destroyed when the private actor conducts his search,” said the Court of Appeals. “Our Supreme Court held in Eisfeldt that the private search doctrine is inapplicable under our State Constitution.”

The court also recognized that when a private party hands evidence over to the police, there is no privacy interest in that evidence:

“We know from the hash values that the files Synchronoss found were child pornography and that this information, the images, and the CyberTip are reliable . . . Because a private party conducted the search and the images are contraband, Harrier did not have a privacy interest in them. Thus, the police’s opening and viewing the images from a private party was not unlawful. Accordingly, Harrier’s arguments fail.” ~WA Court of Appeals.

The Court concluded that the trial court did not err by denying Harrier’s motion to suppress and affirmed Harrier’s convictions.

Please contact my office if you, a friend or family member were arrested after police found incriminating evidence from a questionable search of cyber account information. And please review my Legal Guide on Search & Seizure. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Improper Opinion Testimony

Assault, Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Opinion Testimony, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Chicago cops reluctantly testify against 1 of their own

In State v. Hawkins, the WA Court of Appeals held that a police officer gave improper opinion testimony regarding the defendant’s guilt and credibility.

FACTUAL BACKGROUND

The Defendant Mr. Hawkins was arrested and charged with assault in the third degree for briefly strangling Mr. Ali, a King County Metro bus driver, over a fare dispute. The incident was witnessed by a passenger who did not speak English and a passenger who saw an argument occur, but did not witness actual physical touching.

The State’s only other witnesses were Deputy Baker and Deputy Garrison, the King County Sheriff’s detective that reviewed Baker’s initial investigation and referred Hawkins’s case for prosecution. Over defense counsel’s repeated objections, the prosecutor tried to elicit opinion testimony from both deputies concerning whether they believed whether the bus driver Ali was a credible witness.

Several of the defense’s objections were sustained, but the court eventually allowed Officer Baker to answer. Although Deputy Baker’s answer was couched in probable cause to arrest, Baker’s answer implied he believed Ali’s version of events over Hawkins.

Deputy Garrison’s answers also gave an opinion about credibility. Garrison stated he would only refer a case for prosecution if there was “some credible ability to prosecute.”

The jury convicted Hawkins as charged.

On appeal, Hawkins contends that the prosecutor committed prejudicial misconduct by eliciting opinion testimony from police witnesses concerning witness credibility.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that a prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasi-judicial capacity in a search for justice.

The Court said the prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Thus, a prosecutor must function within boundaries while zealously seeking justice.

Also, the Court of Appeals emphasized there are some areas of opinion testimony that are inappropriate in criminal trials.

“This is particularly true when the opinion testimony is sought from law enforcement,” said the Court of Appeals. “Officer testimony has an aura of special reliability and trustworthiness.”

The Court of Appeals said the State’s case was weak.

“There is no question that the State’s case against Hawkins was weak. There was no physical evidence, there was no surveillance footage, and Ali had no visible injuries and declined medical attention. The State offered no firsthand witnesses other than Ali.” ~WA Court of Appeals

As a result, the Court reasoned that the State’s case inappropriately focused on the police officers’ opinion of the bus driver Ali’s credibility:

“Because the State’s case was weak, eliciting the officers’ opinions that they believed they had a credible witness in Ali had a clear prejudicial effect on Hawkins’s right to a fair trial.” ~WA Court of Appeals

The Court ruled the Defendant’s case was prejudiced and overturned his conviction.

My opinion? Good decision. A prosecutor functions as the representative of the people in the search for justice. The prosecutor also owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated.

It is inappropriate in a criminal trial for the prosecutor to seek opinion testimony as to the guilt of the defendant, the intent of the accused, or the credibility of witnesses. This is particularly true where the opinion sought is that of a law enforcement officer.

Please review my Legal Guide on Prosecutorial Misconduct for more information on this subject. And please contact my office if you, a friend or family member face criminal charges. Hiring an experienced and competent defense attorney is the first and best step toward justice.

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

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.

Shackling Defendants In Court – Without Reason – Is Unconstitutional.

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Court ruling about shackles puts stress on judicial system | Local ...

In State v. Jackson, the WA Supreme Court held that shackling in court without analyzing whether the shackles are necessary violates the defendant’s constitutional rights.

BACKGROUND FACTS

In 2017, Mr. Jackson,  was charged with assault in the second degree, domestic violence, for strangling his fiancée. At every court appearance, Jackson was forced to wear some form of restraints pursuant to jail policy. The trial court did not engage in any individualized determination of whether restraints were necessary for courtroom safety but, instead, filed a consolidated opinion adopting the jail policy for all superior court appearances for all incarcerated defendants.

After a jury found Jackson guilty, he appealed, arguing that his constitutional right to due process was violated when he was forced to wear restraints without an individualized inquiry into their necessity.

The Court of Appeals held that the shackling of Jackson without an individualized inquiry into whether shackles were necessary violated his constitutional rights. However, it also held that this violation was harmless; thus leaving Jackson with a constitutional violation without a remedy.

Both the Prosecutor and Mr. Jackson appealed to the WA Supreme Court. Jackson argued that the Court of Appeals did not apply the constitutional “harmless error test” correctly. The State, on the other hand, cross-petitioned for review of the constitutionality of the use of pretrial restraints.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reviewed the history of defendants wearing pretrial restraints in court:

“The problems in the history of shackling in early America are not limited to the courts and incarcerated individuals . . . The use of shackling as a means of control and oppression, primarily against people of color, has run rampant in the history of this country . . . Shackles and restraints remain an image of the transatlantic slave trade and the systematic abuse and ownership of African persons that has endured long beyond the end of slavery.

Shackles and restraints also represent the forced removal of Native people from their homelands through the Trail of Tears and the slave labor of Native people. We recognize that although these atrocities occurred over a century ago, the systemic control of persons of color remains in society, particularly within the criminal justice system.” ~WA Supreme Court

Next, the Court reasoned that under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution, it is well settled that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances.

That said, the WA Supreme Court also mentioned that the right to be free from restraint is not absolute, and trial court judges are vested with the discretion to give measures that implicate courtroom security, including whether to restrain a defendant in some capacity in order to prevent injury.

Next, the court  identified several factors under State v. Hartzog which help a trial court determine if a defendant needs to be shackled:

“The seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.” ~WA Supreme Court quoting State v. Hartzog

The Court reasoned that a trial court must engage in an individualized inquiry into the use of restraints prior to every court appearance. Furthermore, the State does not meet this burden by simply establishing that no jurors observed the restraints during trial.

“When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary,” said the Court.

With that, the WA Supreme Court reversed the Court of Appeals on harmlessness and remanded for a new trial with instructions that at all stages of court proceedings, the court shall make an individualized inquiry into whether shackles or restraints are necessary.

My opinion? Good decision. The manner in which the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise.

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.

Exigent Circumstances for Warrantless Blood Draw

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

(Online!) Organized Retail Theft: No Such Thing

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Organized Retail Theft, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Theft Prevention (Retail) – Online Pretrial Education

In State v. Lake, the WA Court of Appeals held that Theft by ordering items online from catalogs will not support a conviction for second degree organized retail theft because the takings are not from a “mercantile establishment;” a phrase which only applies to a physical establishment.

BACKGROUND FACTS

In 2017, Ms. Lake was living in a senior living apartment complex. In February 2017, she placed three catalog orders with different companies using the names and accounts of other apartment complex residents. She had the items delivered to her as “gifts.”

One of the residents noticed that someone had placed an order using her credit account. She reported the suspicious order to the front office and made a fraud complaint with the police. After an investigation, the State charged Lake with one count of second degree organized retail theft, three counts of first degree identity theft, and two counts of second degree possession of stolen property.

At the close of the State’s case, Lake moved to dismiss the second degree organized retail theft charge because there was no evidence that she obtained goods form a “mercantile establishment” as required for that charge. The trial court denied the motion.

The jury found Lake not guilty of one count of first degree identity theft but guilty of the lesser degree offense of second degree identity theft. The jury found Lake guilty of the other five charged counts.

Lake appealed her convictions on arguments that her thefts involving online catalog purchases were not from a mercantile establishment.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals concluded that the term “mercantile establishment” was ambiguous, and applied the Rule of Lenity to hold that Lake’s thefts were not from a mercantile establishment.

The Court gave the framework for reaching its decision. It reasoned that if the plain language of the statute is susceptible to more than one reasonable interpretation, the statute is ambiguous.

“We first attempt to resolve the ambiguity and determine the legislature’s intent by considering other indicia of legislative intent, including principles of statutory construction, legislative history, and relevant case law . . . If these indications of legislative intent are insufficient to resolve the ambiguity, under the rule of lenity we must interpret the ambiguous statute in favor of the defendant.”

With that, the Court of Appeals examined the definition of “mercantile establishment.” In order to prove the charge, the State had to prove that Lake committed theft of property with a cumulative value of at least $750 from one or more “mercantile establishments.”

“The question here is whether fraudulently purchasing items online from a catalog constitutes theft from a mercantile establishment, or whether that term is limited to physical retail stores,” said the Court.

The court reviewed former RCW 9A.56.360 which gave a working definition of “mercantile establishments” as it applied to the crime of retail theft with special circumstances:

(1) A person commits retail theft with special circumstances if he or she commits theft of property from a mercantile establishment with one of the following special circumstances: (a) To facilitate the theft, the person leaves the mercantile establishment through a designated emergency exit; (b) The person was, at the time of the theft, in possession of an item, article, implement, or device used, under circumstances evincing an intent to use or employ, or designed to overcome security systems including, but not limited to, lined bags or tag removers.

Here, reasoned the court, former RCW 9A.56.360 shows that the legislature intended to stop thefts from physical retail stores:

“Only a physical store has a ‘designated emergency exit’ and employs security systems that can be overcome by ‘lined bags’ or ‘tag removers.’” ~WA Court of Appeals

Consequently, the Court concluded that the statutory term “mercantile establishment” was ambiguous. And because the term “mercantile establishment” remains ambiguous, the Court applied the rule of lenity and interpreted the ambiguous statute in favor of Ms. Lake.

“Therefore, we hold that the trial court erred in denying Lake’s motion to dismiss because the evidence was insufficient to convict Lake of second degree organized retail theft,” said the Court. With that, the court dismissed the charges.

My opinion? Good decision. The Prosecutor should have sought different charges under these circumstances. Clearly, the organized retail theft statute clearly applies to brick-and-mortar businesses.

As a side-note, the Rule of Lenity is a rarely used criminal defense argument. In most cases, the definitions of terms are discussed in the legislative intent of statutes and/or found in the criminal statutes themselves. This case shows that when the Rule of Lenity is correctly applied, it’s quite powerful.

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

Illegal Search At Starbucks

Bellingham Defense Attorney, Community Caretaking, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Starbucks incident, Philly cops and employees acted 'in ...

In State v. Martin, the WA Court of Appeals held that the illegal search of a person in a Starbucks store should have been suppressed because the officer was not conducting a criminal trespass investigation when he removed a metal utensil that was sticking out of the defendant’s pocket.

BACKGROUND FACTS

On December 11, 2017, Officer Bickar responded to a 911 call from a Starbucks employee, requesting assistance with the removal of a sleeping person inside the store. When Bickar arrived, he saw Martin sleeping in a chair. Bickar gestured to the Starbucks employee and received a responsive gesture from the employee that Martin was the person identified in the 911 call.

When Bickar approached Martin, he noticed Martin was wearing multiple jackets that had pockets. Bickar attempted to wake Martin, first by raising his voice and then by squeezing and shaking his left shoulder. Martin remained unresponsive.

Bickar noticed the end of a metal utensil sticking out of Martin’s pocket. Bickar worried that the metal utensil could be a knife or another utensil sharpened into a weapon. Bickar also expressed concerns about sharp needles.

Without feeling the outside of the pocket, Bickar removed the utensil. The utensil was a cook spoon, had burn marks on the bottom, and a dark brown residue on the inside. At that point, Bickar determined that he had probable cause to arrest Martin for Possession of Drug Paraphernalia and continued searching Martin. While searching Martin, Bickar found methamphetamine, heroin, cocaine, and other drug paraphernalia. Martin was arrested.

Martin moved to suppress all evidence collected as a result of the unlawful detention and search. The court heard testimony from Officer Bickar and denied Martin’s motion to suppress.

Martin proceeded to a stipulated bench trial on the charge of unlawful possession of a controlled substance. The court found Martin guilty. The court sentenced Martin to 30 days of confinement. Martin appealed.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court held that the search was not a valid Terry search. It explained that while Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, non-intrusive search for weapons if, after a lawful Terry stop, a reasonable safety concern exists to justify the protective frisk for weapons so long as the search goes no further than necessary for protective purposes.

“A reasonable safety concern exists, and a protective frisk for weapons is justified, when an officer can point to ‘specific and articulable facts’ which create an objectively reasonable belief that a suspect is ‘armed and presently dangerous.

Here, however, the Court of Appeals found the search was not a justifiable under Terry:

“This search fails to meet the requirements under Terry. Starbucks is open to the public. The record does not support the trial court’s finding that Bickar was conducting a criminal investigation for trespass because there is no evidence in the record that Starbucks had trespassed Martin from the premises. Also absent from the record is evidence supporting Bickar’s claim that Martin sleeping created a reasonable safety concern.” ~WA Court of Appeals

Consequently, the Court held the search was not lawful under Terry because there was no reasonable suspicion that a crime had been committed, there was not a reasonable safety concern, and the search exceeded the lawful scope of a frisk.

The Court also rejected the State’s arguments that the search was lawful under the community caretaking exception to the warrant requirement. It explained that the community caretaking exception applies when (1) the officer subjectively believed that an emergency existed requiring that he or she provide immediate assistance to protect or preserve life or property, or to prevent serious injury, (2) a reasonable person in the same situation would similarly believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.

“Officer Bickar did not subjectively believe an emergency existed and a reasonable person in the same situation would not believe there was a need for assistance,” said the Court. “Furthermore, even if the community caretaking exception applied to this search, a simple pat-down on the outside of Martin’s coat pocket would have alleviated any concern that the metal utensil was a sharp object or weapon.” Consequently, the Court held that removing the spoon violated Martin’s right to be free from unreasonable searches and seizures.

With that, the Court of Appeals vacated Martin’s conviction.

Please contact my office if you, a friend or family member face criminal charges in the aftermath of a questionable search and seizure of their home, car or person. Hiring an experienced criminal defense attorney is the first and best step towards justice.