Category Archives: Firearm

Second Amendment Protects Stun Guns

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Firearm, Search and Seizure, United States Supreme Court, Whatcom County Criminal Defense, , ,

 

In Cadtano v. Massachusetts, the U.S. Supreme Court ruled that the Second Amendment presumably extends to stun guns.

After a “bad altercation” with an abusive boyfriend put her in the hospital, Jaime Caetano found herself homeless and in fear for her life. She obtained multiple restraining orders against her abuser, but they proved futile. So when a friend offered her a stun gun “for self-defense against her former boy friend, Caetano accepted the weapon.

It is a good thing she did. One night after leaving work, Caetano found her ex-boyfriend waiting for her outside. He “started screaming” that she was “not gonna [expletive deleted] work at this place” any more because she “should be home with the kids” they had together. Caetano’s abuser towered over her by nearly a foot and outweighed her by close to 100 pounds. But she didn’t need physical strength to protect herself. She stood her ground, displayed the stun gun, and announced: “I’m not gonna take this anymore. . . . I don’t wanna have to use the stun gun on you, but if you don’t leave me alone, I’m gonna have to.” The gambit worked. The ex-boyfriend “got scared and he left her alone.”

Under Massachusetts law, however, stun guns are illegal.

When police later discovered the weapon, Ms. Caetano was arrested, tried, and convicted for violating the law. The Massachusetts Supreme Judicial Court affirmed the conviction, holding that a stun gun “is not the type of weapon that is eligible for Second Amendment protection” because it was “not in common use at the time of the Second Amendment’s enactment.”

Her case was appealed to the United States Supreme Court.

The U.S. Supreme Court rejected the Massachusetts Supreme Court’s conclusion that stun guns are unsuited for militia or military use. It reasoned that law enforcement and correctional officers carry stun guns and Tasers, presumably for such purposes as nonlethal crowd control. Also, subduing members of a mob is little different from suppressing insurrections, a traditional role of the militia.  Finally, several branches of the U. S. armed services equip troops with electrical stun weapons to “incapacitate a target without permanent injury or known side effects.”

The Court also reasoned that “hundreds of thousands of Tasers and stun guns have been sold to private citizens,” who may lawfully possess them in 45 States. Finally, the U.S. Supreme Court concluded with powerful language stated below:

A State’s most basic responsibility is to keep its people safe. The Commonwealth of Massachusetts was either unable or unwilling to do what was necessary to protect Jaime Caetano, so she was forced to protect herself. To make matters worse, the Commonwealth chose to deploy its prosecutorial resources to prosecute and convict her of a criminal offense for arming herself with a nonlethal weapon that may well have saved her life. The Supreme Judicial Court then affirmed her conviction on the flimsiest of grounds. This Court’s grudging per curiam now sends the case back to that same court. And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense. If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

With that, the U.S. Supreme Court vacated the judgment of the Massachusetts Supreme Court and remanded the case for further proceedings.

My opinion? Good decision. Stun guns are non-lethal use of self-defense. They shouldn’t be outlawed or classified as a dangerous weapon.

FYI, stun guns are (mostly) legal in WA State. State law only prohibits the possession of a stun gun on school property under RCW 9.41.280.

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. Thompson: Disruptive Defendants In Trial

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Firearm, Jury Trial, Sixth Amendment, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Murder defendant to wear shock device | The Spokesman-Review

In State v. Thompson, the WA Court of Appeals Division II held that  a Defendant’s right to be present during trial is not violated if they are taken away after being verbally and/or physically disruptive and refuse to promise that such behavior will stop.

Here, late one evening, Thompson approached a group of high school students, two of whom were sitting in a car. Thompson pulled out a gun and ordered the students to surrender their possessions. Three of them handed over backpacks and other items, while the two girls in the car closed and locked the doors. After looking through the items, Thompson demanded the car. When one of the boys protested and tried to get the gun, Thompson shot him in the abdomen. The other boys wrestled Thompson to the ground and held him until the police arrived.

The State charged Thompson with four counts of Robbery in the First Degree while armed with a firearm and one count Assault First Degree while armed with a firearm, Unlawful Possession of a Firearm in the First Degree and Possession of a Stolen Firearm.

When Thompson’s trial began on January 28, 2014, he wore a leg restraint. Before testimony began, jail personnel asked for increased restraints due to a physical altercation at the jail. After a hearing on the matter, the trial court authorized the placement of a stun device under Thompson’s clothing.

Later that same day, Thompson pushed over the counsel table at which he was seated, yelled several profanities, and struggled with corrections officers before being subdued and removed from the courtroom. When he returned in handcuffs, shackles, and a belly chain, the trial court ruled that he would be taken to another courtroom where he could attend the trial over a video feed.

The trial court informed Thompson that he would have the right to be present in court if he assured the judge that his behavior would improve. Specifically, the judge said the following:

“And, of course, Mr. Thompson has the right to reclaim his ability to be present in court upon a real assurance that his conduct will improve and that he will not be verbally or physically disruptive.”

Before the trial recessed for the day, the trial court reminded Thompson that he could return to the courtroom the following day if he agreed to behave. Thompson was instructed to inform his attorney or corrections staff of his decision.

The next day, on February 4, trial resumed. Thompson had not decided whether he would behave in court. The judge said he would not further inquire into Thompson’s desire to return to the courtroom because Thompson knew the procedure by which he could return the day before and still refused to comply or reply. After the State rested, Thompson declined to testify, and the jury retired to deliberate at the end of the day.

On February 5, the jury found Thompson guilty as charged.

On appeal, Thompson raised the legal issue of whether the trial court denied his right to be present at trial by removing him from the courtroom for the final three days of trial without informing him daily that he could return if he conducted himself properly.

However, the Court of Appeals disagreed. The Court reasoned that a criminal defendant has a constitutional right to be present in the courtroom at all critical stages of the trial. Also, this right derives from the 6th Amendment’s constitutional right to confront adverse witnesses and the Washington rules of criminal procedure.

The Court also reasoned, however, that the right to be present is not absolute. A defendant’s persistent, disruptive conduct can constitute a voluntary waiver of the right to be present in the courtroom. Once lost, this right can be reclaimed “as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.”

The Court of Appeals followed basic guidelines under State v. Chapple to assist trial courts in exercising their discretion in cases like this. First, the defendant must be warned that his conduct may lead to removal. Second, the defendant’s conduct must be severe enough to justify removal. Third, the trial court should employ the least severe alternative that will prevent the defendant from disrupting the trial. Fourth, the defendant must be allowed to reclaim his right to be present upon assurances that his or her conduct will improve. These guidelines, said the court, are intended to ensure that trial courts exercise their discretion in a manner that affords defendants a fair trial while maintaining the safety and decorum of the proceedings.

Here, the trial court clearly informed Thompson of both his right to return and the manner in which he could exercise that right. With that, the Court affirmed Thompson’s convictions.

My opinion? In my experience, trial judges are extremely sensitive to how defendants behave in court. Decorum MUST be maintained by witnesses, attorneys and defendants at all times. Any disruptions of proceedings are viewed disdainfully, as we see in this 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.

State v. Mitchell: Bus Fare Officers

Bellingham Defense Attorney, Detention, felony, Firearm, law enforcement, Search and Seizure, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Sound Transit, King County Metro suspending fare enforcement to improve safety during novel coronavirus response | Mass Transit

In State v. Mitchell the WA Court of Appeals Division I decided that a fare enforcement officer (FEO) may detain a passenger for a period of time necessary to identify a bus rider and may also issue a notice of civil infraction when a passenger fails to pay the required fare or produce proof of payment when asked, if the infraction occurs in the officer’s presence. Finally, a “passenger” includes a person that the FEO observes stepping off the bus.

Here, Mitchell was convicted of Unlawful Possession of a Firearm in the First Degree. The firearms were discovered when a fare enforcement officer stopped him to check proof of fare payment after he exited a Metro bus. Mitchell argues he was unlawfully detained and the trial court erred by not suppressing evidence of the firearms.

The Court of Appeals reasoned that RCW 35.58.585(1) allows metropolitan municipal corporations to designate individuals to monitor fare payment. These persons have all the powers granted to enforcement officers under RCW 7.80.050 and 7.80.060. This means an FEO can issue a notice of civil infraction when the infraction occurs in the officer’s presence, request identification, and detain a person for a period of time reasonably necessary to identify the person. Also, under RCW 35.58.585(2)(b) the law specifically grants FEOs the additional authority for the following:

(i) Request proof of payment from passengers; (ii) Request personal identification from a passenger who does not produce proof of payment when requested; (iii) Issue a citation and (iv) Request that a passenger leave the bus or other mode of public transportation when the passenger has not produced proof of payment after being asked to do so by a person designated to monitor fare payment.

Here, the defendant challenged the legality of the stop. He argued that the word “passenger” includes only those persons physically present on a mode of public transportation. Under this theory, an FEO may request proof of payment from someone currently traveling on a bus, because that traveler’s freedom of movement is already restricted by his or her presence on a moving vehicle. However, once the person disembarks the bus, additional authority is needed to request proof of payment, because to do so an FEO must first stop the person.

Unfortunately for Mitchell, the WA Court of Appeals disagreed. They said that here, there is no question Mitchell was a passenger. The FEO witnessed Mitchell disembarking the bus. He asked Mitchell and the other departing passengers for their proof of payment as they stepped off the bus. By using the bus, as a passenger, Mitchell had already incurred the obligation to display proof of payment when asked. Under these facts, the FEO acted within the scope of his statutory authority by requesting proof of payment from Mitchell. Additional authority to detain was unnecessary.

Also, because Michell did not have ID on himself, the FEO had the authority to detain Mitchell for the time reasonably necessary to identify him. Accordingly, the FEO radioed for assistance and, within minutes, police arrived and confirmed Mitchell’s identity. At each step of this encounter, the FEO acted within the scope of his statutory authority.

The Court of Appeals upheld Mitchell’s conviction for Unlawful Possession of a Firearm First Degree.

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. Rooney: Unlawful Search of Bedroom, Yet Valid Frisk of Pants.

Bellingham Defense Attorney, Common Authority Rule, Constitutional Rights, Drug Offenses, Evidence, felony, Firearm, law enforcement, Search and Seizure, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

What to Know About Unlawful Search and Seizure

In State v. Rooney, the WA Court of Appeals Division II gave interesting results on a multi-layered search & seizure case. First, an officer who lawfully entered a parolee’s room in order to arrest him, properly conducted a Terry frisk of a roommate’s pair of pants before giving them to the roommate. The frisk was justified by the presence of several swords, an axe and multiple knives in the room. However, the officer’s search of a room over the objection of the roommate, who was not on community custody, violated the roommate’s Constitutional rights.

Alexandria White, who was serving a term of community custody, began living with the defendant, Norman Rooney, in his home in December 2013 shortly after her release from prison. Her parole officer Chris Napolitano supervised White’s community custody. Napolitano knew that Rooney and White had lived together like a married couple and they had always lived in the same room together.

After White moved in with Rooney again that December, Napolitano discovered White had changed her address without notifying him, which violated her community custody conditions.

Napolitano obtained an arrest warrant for White and, with a team of law enforcement officers, went to Rooney’s house to arrest her on December 30, 2013. As Napolitano walked into the bedroom, White was standing in the bedroom with Rooney, who appeared to be asleep in bed. Napolitano observed swords and axes hanging on the bedroom wall and a couple of knives laying on the shelves. He observed additional weapons on Rooney’s nightstand. Napolitano advised White that by failing to report her new address and not being available for contact she had violated her community custody. White acknowledged that Napolitano would arrest her for the violation.

After Napolitano arrested White and placed her in the living room, Napolitano told White that he was going to search the bedroom. White responded that she lived in the living room, not the bedroom, but Napolitano did not see any sleeping arrangements or anything that appeared to be White’s belongings in the living room. Napolitano ordered Rooney to leave the bedroom so the officers could search it. Rooney objected to the search because he was not currently on community custody, but he began to physically comply.

Rooney, who was dressed in what appeared to be boxer shorts, asked to put on pants. Napolitano replied that he would have to search the pants “for safety reasons” before Rooney could put them on and leave the room. Given the other weapons in the room, Napolitano was concerned that Rooney might have a weapon in the pants. Rooney grabbed a pair of pants, and when Napolitano took hold of the pants, he immediately felt a firearm.

After Rooney was arrested and placed in the living room, Napolitano and Harvey searched the bedroom and found methamphetamine, heroin, and clonazepam. The State charged Rooney with three counts of Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam) and one count of First Degree Unlawful Possession of a Firearm. Rooney moved to suppress evidence of the controlled substances and the firearm. The trial court denied Rooney’s motion and found him guilty as charged at a bench trial. On appeal, Rooney argues that the trial court erred when it denied his motion to suppress.

The Court of Appeals reasoned that warrantless searches and seizures are generally unreasonable and violate the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution. However, consent is one well-recognized exception to this rule. The State bears the burden of proving by clear and convincing evidence that a warrantless search falls into one of the exceptions to the warrant requirement.

The Court further reasoned that, in searches involving a cohabitant who consents to a warrantless search, Washington has adopted the Common Authority Rule; which says that a cohabitant may grant consent to search a residential area that each cohabitant has equal authority to control. This rule is based on the Washington Constitution’s guarantee of each individual’s expectation of privacy and the theory that a person assumes risk that his or her cohabitant may allow “outsiders” into a shared space.

Finally, the Court reasoned that the consent of only one person with common authority over the place to be searched when multiple cohabitants are present is NOT sufficient to conduct a lawful search of shared space.  “We have never held that a cohabitant with common authority can give consent that is binding upon another cohabitant with equal or greater control over the premises when the non-consenting cohabitant is actually present on the premises,” said the Court. “When a cohabitant who has equal or greater authority to control the premises is present, his consent must be obtained and the consent of another of equal or lesser authority is ineffective against the non-consenting cohabitant.”

With that, the court held that under application of the common authority rule, because Rooney was present and objected, the officers’ search of Rooney’s room was unlawful. The fact that White was serving a community custody term does not undermine Rooney’s right to object to a warrantless search of his bedroom. Therefore, the officers’ warrantless search of Rooney’s bedroom was unlawful as to Rooney, and the trial court erred in denying Rooney’s motion to suppress the methamphetamine, heroin, and clonazepam evidence found during the unlawful search.

Regarding the frisk of Rooney’s pants, the Court of Appeals reached an entirely different decision. They decided the trial court did not error in denying Rooney’s motion to suppress evidence of the firearm found in Rooney’s pants. The Court reasoned that an officer may conduct a non-consensual protective Terry frisk for weapons if the officer can articulate specific facts that create an objectively reasonable belief that the person is armed and dangerous. The officer need not be certain that the person is armed before he or she conducts a protective frisk.

Here, Napolitano and other law enforcement officers saw “several swords, an axe, and multiple knives” in Rooney’s bedroom. Because he was aware of the number of weapons, Napolitano was concerned for his safety. Also, Rooney’s behavior following Napolitano’s warning that the pants would be searched, together with Napolitano’s observation of the weapons in plain view in his bedroom, gave Napolitano articulable suspicion that the pants Rooney wanted to wear might have contained a weapon.

The court concluded that the officers’ warrantless search of Rooney’s bedroom over his objection was unlawful, and therefore, the evidence of the controlled substances must be suppressed. But Napolitano’s frisk of Rooney’s pants was lawful and based on reasonable suspicion. Therefore, the court reversed Rooney’s three convictions for Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam), and affirmed his conviction for First Degree Unlawful Possession of a Firearm.

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. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, Firearm, Informant, Juvenile, law enforcement, marijuana, Obstructing, police, Search and Seizure, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, WA Supremes!

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. Flores: WA Court of Appeals Decides Frisk for Gun Was Unconstitutional

Bellingham, Bellingham Defense Attorney, Constitutional Rights, Dismissal, Evidence, felony, Firearm, law enforcement, police, Privacy, Search and Seizure, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

 

In State v. Flores, Division III of the WA Court of Appeals UPHELD the suppression of a gun that officers found on an individual who was walking with a known-gang member and fugitive who had just threatened another person with a firearm. The reason for the suppression? There were no grounds to frisk the defendant because he made no furtive movements, had no known violent propensities, and was compliant with all of the officer’s directions.

Here, Moses Lake police were responded to an anonymous report that Giovanni Powell held a gun to somebody’s head. Dispatch also reported an outstanding warrant for the arrest of Powell. He was a known gang member and a fugitive.

The defendant, Cody Flores, was with Powell. Although Flores had no warrants for his arrest and did not point a firearm at anyone, Flores did, in fact, possess a firearm on his person. Unfortunately, he possessed the firearm unlawfully because a prior felony conviction barred his possession.

Police apprehended both Powell and Flores. Although Flores complied with officers, had no known violent propensities and was compliant with all of the officer’s directions, Flores was nevertheless frisked. Officers found his firearm. He was charged with Unlawful Possession of a Firearm in the First Degree in violation of RCW 9.41.040(1)(a). However, Flores’ his defense attorney prevailed in a 3.6 Motion to suppress the firearm due to an unlawful search.

Among other findings, the trial court found that the officers lacked individualized articulable suspicion to suspect Cody Flores of criminal activity. The trial court granted Cody Flores’ motion to suppress evidence of the gun found on his person and dismissed the charge against him. The State filed an appeal.

The WA Court of Appeals sided with the trial court’s suppression. It reasoned that the Washington Constitution, not the Fourth Amendment to the United States Constitution, is the controlling law. Article I, section 7 of the WA Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” The Court reasoned that WA’s protection encompasses and exceeds the protection guaranteed in the Fourth Amendment of the United States Constitution.

The Court further reasoned that, as a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment and article I, section 7 of the Washington State Constitution. There are five exceptions to the warrant requirement. They include (1) exigent circumstances, (2) searches incident to a valid arrest, (3) inventory searches, (4) plain view searches, and (5) Terry investigative stops. The State bears the burden of demonstrating that a warrantless seizure falls into a narrow exception to the rule. “This is a strict rule.” said the Court. “Exceptions to the warrant requirement are limited and narrowly drawn.

“Merely associating with a person suspected of criminal activity does not strip away the protections of the constitution,” said the Court. “In order for police to lawfully seize an otherwise innocent individual present with an arrestee, the arresting officer must articulate an ‘objective rationale’ predicated specifically on safety concerns.”

Finally, the court reasoned that automatically authorizing the search of non-arrested individuals because those individuals happen to be associated with the arrestee, or within the vicinity of the arrest, would distort the narrow limits of the warrant exceptions and offend fundamental constitutional principles. Because the privacy interest of a non arrested individual remains largely undiminished, full blown evidentiary searches of non-arrested individuals are constitutionally invalid even when officers may legitimately fear for their safety. “A generalized concern for officer safety has never justified a full search of a non-arrested person,” said the court.

With that, the Court of Appeals affirmed the trial court’s suppression of evidence and dismissal of charges against Cody Flores.

My opinion? This is a well-reasoned case. It’d be different if the defendant was doing something unlawful, being uncooperative and/or raising safety concerns with the police. Here, the situation was purely mathematics. Again, there can search incident to arrest if there is no arrest. And there can be no arrest without probable cause. Here, there was no probable cause to arrest and search Mr. Flores. Period.

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.

State v. Jones: Slight Lane Travel = Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Due Process, DUI, felony, Firearm, law enforcement, police, Search and Seizure, Washington Court of Appeals, , ,

On the Road: Changing lanes in an intersection may be legal — but it's not necessarily safe – Press Enterprise

Good case. In State v. Jones, The WA Court of Appeals decided a police officer does not have reasonable suspicion to stop a vehicle that crosses the fog line three times in a mile for violating the safe lane travel statute, RCW 46.61.140(1).

Anacortes Police Officer Jacqueline Richter saw Donald Jones driving within the city limits of Anacortes, Washington. As she followed Jones in her patrol car for about a mile, she observed Jones’s vehicle “pass over the fog line approximately an inch” three times, each time “correcting its position with a slow drift.” She stopped Jones and told him that she had stopped his vehicle “due to erratic lane travel.” There were no other vehicles on the roadway at the time. Jones agreed to perform field sobriety tests. There was no indication of intoxication.

Officer Sam King arrived to assist Richter. King saw a rifle in the backseat of Jones’s truck. Jones consented to a vehicle search “for the sole purpose of recovering the rifle.” A records check revealed that Jones did not have a valid driver’s license. In the course of their conversation, Jones told King that he had a felony conviction in Idaho for possession of a controlled substance. The State charged Jones with one count of Unlawful Possession of a Firearm in the Second Degree.

Jones moved to suppress the fruits of the vehicle search. Citing State v. Prado, Jones challenged the lawfulness of the stop. The trial court denied Jones’s motion. At trial he was found guilty. He appealed.

The Court of Appeals held that stopping Jones’s vehicle was unlawful under RCW 46.61.040(1) and State v. Prado. the trial court erred by not suppressing the evidence of the firearm. The Court of Appeals reversed the conviction and remanded the case back to the trial court.

The Court reasoned that a traffic stop is a seizure. The Fourth Amendment to the United States Constitution guaranties against unreasonable searches and seizures, and requires either a warrant or proof that the seizure qualifies under one of the few “‘jealously and carefully drawn'” exceptions to the warrant requirement.

Here, said the Court, there was no evidence of “reasonable suspicion of criminal activity” to support a stop and search of Jones’s vehicle. The State presented no evidence about Officer Richter’s training and experience in identifying impaired drivers. Officer Richter did not testify that she suspected Jones was impaired or that she stopped him for this reason. The State presented no evidence of dangerous driving or any other traffic infraction. Finally, the trial court did not find that Officer Richter stopped Jones because of a reasonable suspicion that he was DUI.

Because the State failed to justify its warrantless seizure of Jones, the trial court should have suppressed the evidence discovered because of that seizure.

My opinion? Good decision. I’m happy that the Court of Appeals is finally supporting its decision in State v. Prado. In that case, a police officer stopped a car that had crossed a lane divider line in an exit lane by approximately two tire widths for one second. The State charged the driver with driving under the influence of an intoxicant. The district court denied Prado’s motion to suppress, and Prado was convicted.  He appealed.

Ultimately, in deciding Prado the Court of Appeals held that “minor incursions over a lane line” do not, by themselves, constitute a sufficient basis for an investigatory stop. Also, “a vehicle crossing over a lane once for one second by two tire widths does not, without more, constitute a traffic violation justifying a stop by a police officer.”

Prado was an excellent decision in 2008. Unfortunately, Prado hasn’t been well-supported by other court decisions. Indeed, in my own practice, judges deciding suppression issues seem to have turned a blind eye to Prado decision. Hopefully, State v. Jones shall reinforce Prado and give it the respect it deserves.

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. Manlove: “Deliberate Cruelty” Enhancements Apply to Property Crimes.

Bellingham, Bellingham Defense Attorney, Burglary, Exceptional Sentencing, felony, Firearm, Jury Trial, law enforcement, Legislation, Property Crimes, Search Warrant, Sentencing, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Manlove, the Division III Court of Appeals held that a upward sentencing enhancement applies to Residential Burglary and other property crimes if a jury finds the defendant’s conduct during the commission of crime manifested deliberate cruelty to the victim.

In 2005, Paula Parker and her then-husband purchased a remote cabin on forty acres in Stevens County, Washington. The couple became acquainted with their neighbor, David Manlove, whose home lay a half mile from Parker’s cabin.

Paula Parker divorced in 2011, and she retained sole custody of the cabin. Parker and Manlove occasionally joined one another at each other’s homes for dinner. The two enjoyed a pastoral, idyllic, and platonic relationship, until . . .

Paula Parker went on vacation from June 19 to July 2, 2013 and returned to her cabin the morning of July 3. Once inside her home, Parker discovered her cabin was ransacked. Property was destroyed. The intruder left a hand-rolled cigarette. Paula realized her neighbor, David Manlove, smoked similar cigarettes.

Parker contacted police and informed them she believed the culprit was Manlove. She avoided her home for a few days.

On July 7, she returned home. Again, her house was ransacked. The damage was even more extensive this time. The intruder shredded Paula Parker’s medical records, high school diploma, and college degree. Parker kept her mother’s ashes in an urn, and the prowler dumped the ashes onto the floor.

After surveying the damage at Paula Parker’s cabin on July 8, 2013, Stevens County sheriff deputies traveled to David Manlove’s home. When asked why he damaged Paula Parker’s home, Manlove responded, “It’s my mountain.” When arrested, Manlove repeated several times: “It’s my mountain so there’s no crime.”

Law enforcement obtained two search warrants for David Manlove’s home. Officers seized many items that belonged to Paula Parker, including a hatchet, a chainsaw, a veil for a belly dancing costume, a mortar and pestle, journals, and jewelry. Officers also found marijuana plants and a rifle.

David Manlove was charged with Residential Burglary, Unlawful Possession of a Firearm in the Second Degree, Possession of more than Forty Grams of Marijuana, Possession of Stolen Property in the Third Degree, and Malicious Mischief in the First Degree. The State further alleged that Manlove committed Residential Burglary with deliberate cruelty in violation of RCW 9.94A.535(3)(a).

The trial court found Manlove competent to stand trial after an evaluation by Eastern State Hospital. At the close of trial, the trial court instructed the jury that: “Deliberate cruelty” means gratuitous violence ,or other conduct which inflicts physical, psychological, or emotional pain as an end in itself, and which goes beyond what is inherent in the elements of the crime or is normally associated with the commission of the crime. Clerk’s Papers (CP) at 177. The jury found David Manlove guilty as charged.

On appeal, the issue was whether the aggravating factor of deliberate cruelty under RCW 9.94A.535(3)(a) applies to Residential Burglary.

The Court of Appeals decided, “Yes.” They gave two reasons why, under appropriate circumstances, the deliberate cruelty aggravating factor may apply to a property crimes. First, when the legislature desired to limit the application of an aggravating factor to certain offenses, it expressly provided that limitation in the statute. Second, the statute allows a sentence enhancement when the current offense is a burglary and the victim ofthe burglary was present in the building or residence when the crime was committed.

The Court affirmed Manlove’s convictions and sentence, including the enhancement for deliberate cruelty.

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. Henderson: Lesser Included Jury Instructions

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In State v. Henderson, the Washington Supreme Court decided that the jury of a defendant charged with first degree murder by extreme indifference should have been instructed on the lesser included offense of first degree manslaughter.

Some background on “Lesser Included” Crime is necessary. In short it is a lesser crime whose elements are encompassed by a greater crime. 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 defendant Marsele Henderson fired gunshots at a house party on November 16, 2008. One of the most important – and disputed – facts in this case is how many people were in the area in front of the house at this time just prior to shots being fired toward the house. Was it a small group of people or a large group? Witness testimony on this point varied significantly.  This question mattered because whether Henderson shot into a large crowd of people or whether he shot toward an area with very few people determined the nature of the crime.

A month after the shooting, prosecutors charged Henderson with Murder in the First Degree by Extreme Indifference under RCW 9A.32.030(1)(b). At trial, Henderson asked that the jury be instructed on the lesser included charge of Manslaughter in the First Degree under RCW 9A.32.060.  Initially, the Prosecutor agreed. However, the Prosecutor later changed its position. The trial court denied the defendant’s motion for a lesser included jury instruction. The jury convicted Henderson of Murder in the First Degree by Extreme Indifference. Henderson appealed, contending that the trial court erred when it refused to instruct the jury on Manslaughter in the First Degree. The Court of Appeals decided that Henderson should have been granted the lesser-included jury instruction. The state appealed.

Ultimately, the Washington Supreme Court decided the issue of whether Henderson was entitled to a jury instruction on Manslaughter First Degree as a lesser included charge to Murder in the First Degree by Extreme Indifference.

The WA Supremes upheld the Court of Appeals and decided that Henderson should have been granted the lesser-included jury instruction. It affirmed the Court of Appeals and reversed Henderson’s conviction.

In reaching this decision, the court reasoned that under State v. Workman, a defendant is entitled to an instruction on a lesser included offense 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. Under this framework, the court based their conclusion on two unique aspects of the case.

First, this crime involved a shooting outside a house party and the evidence consisted largely of eyewitness testimony that varied widely and was often conflicting. Thus, viewing the evidence in the light most favorable to the defendant results in a much more significant shift than it would in cases with uncontroverted evidence.

Second, the definitions of the lesser crime (disregarding a substantial risk that a homicide may occur) and the greater crime (creating a grave risk of death) are very close to each other-much closer than is typical.

As a result, the WA Supremes could not say that no jury could have rationally found that the defendant committed the lesser crime rather than the greater crime. Thus, the court held that the jury should have been allowed to determine whether Henderson committed the greater or lesser crime.

My opinion? Good decision.

In criminal trials, juries are given the option of convicting defendants of lesser included offenses when warranted by the evidence. Giving juries this option is crucial helps our criminal justice system because when defendants are charged with only one crime, juries must either convict them of that crime or let them go free. In some cases, that will create a risk that the jury will convict the defendant despite having reasonable doubts.

To minimize that risk, courts prefer to err on the side of instructing juries on lesser included offenses. Under State v. Fernandez-Medina, a jury must be allowed to consider a lesser included offense if the evidence, when viewed in the light most favorable to the defendant, raises an inference that the defendant committed the lesser crime instead of the greater crime. If a jury could rationally find a defendant guilty of the lesser offense and not the greater offense, the jury MUST be instructed on the lesser offense.

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. Walker: WA Supreme Court Decides Prosecutor’s Powerpoint Presentation Violates Defendant’s Right to Fair Trial

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EXCELLENT opinion. In State v. Walker, the Washington Supreme Court decided the Prosecutor improperly used a PowerPoint presentation during closing argument to convey egrigious misstatements which violated the defendant’s right to a fair trial.

At his jury trial, defendant Odies Delandus Walker was convicted as an accomplice to Murder in the First Degree, Assault in the First Degree, Robbery in the First Degree Solicitation and Conspiracy. The WA Supreme Court addressed the issue as whether those convictions must be reversed in light of the Power Point presentation the prosecuting attorney used during closing argument.

The Prosecutor’s presentation repeatedly expressed the prosecutor’s personal opinion on guilt-over 100 of its approximately 250 slides were headed with the words “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER,” and one slide showed Walker’s booking photograph altered with the words “GUILTY BEYOND A REASONABLE DOUBT,” which were superimposed over his face in bold red letters. The prosecutor also appealed to passion and prejudice by juxtaposing photographs of the victim with photographs of Walker and his family, some altered with the addition of inflammatory captions and superimposed text (please click the above link to the Walker opinion for a look at the specific Powerpoint slides and images).

In reaching its decision, the court reasoned that while the prosecutor is entitled to draw the jury’s attention to admitted evidence, those slides, as presented, served no legitimate purpose. Their prejudicial effect could not have been cured by a timely objection, and we cannot conclude with any confidence that Walker’s convictions were the result of a fair trial. Consistent with both long-standing precedent and our recent holding in In re Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 (2012), the court reversed Walker’s convictions and remanded for a new trial.

The Court also gave some powerful language regarding how the prosecution committed serious misconduct in the portions of the PowerPoint presentation discussed above:

“We have no difficulty in holding the prosecutor’s conduct in this case was improper. Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered version of admitted evidence to support the State’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt. Furthermore, RPC3.4(e) expressly prohibits a lawyer from vouching for any witness’s credibility or stating a personal opinion ‘on the guilt or innocence of the accused.’”

My opinion? Good decision. It’s very encouraging for trial attorneys to learn from these opinions. For example, we can argue Motions in Limine asking that the State’s PowerPoint presentations are disclosed in advance of closing arguments. The Walker opinion expressly endorses this approach.

Furthermore, this is the second opinion this month handed down by the WA Supremes regarding Prosecutorial Misconduct during closing arguments (please read my blog on State v. Allen). It appears the WA Supremes are on a roll.

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.