Category Archives: Homicide & Manslaughter

Offender Scores Include Bail Jumping Even When the Underlying Conviction Was Dismissed Under State v. Blake

Felony Sentencing Guidelines | California Felony Attorney

In State v. Paniagua, the WA Court of Appeals held that convictions for Bail Jumping are appropriately included in the offender score even when the offender failed to appear at a scheduled hearing for a pending charge of Blake-related Drug Offense.

FACTUAL BACKGROUND

This appeal considered one of many consequences attended to the Washington Supreme Court’s landmark decision in charge of State v. Blake. The decision held Washington’s possession of a controlled substance criminal statute unconstitutional. In turn, Washington courts have removed, from offender scores, earlier convictions for possession of a controlled substance.

This appeal travels further down the path and asks whether a court should remove, from the offender score, a former conviction for bail jumping when the offender failed to appear at a scheduled hearing while on bail pending charges for possession of a controlled substance.

Victor Paniagua only challenges his sentence for his 2018 convictions for Homicide and other crimes. The relevant facts begin, however, with earlier convictions.

In 2007, the State of Washington convicted Victor Paniagua with unlawful possession of a controlled substance. In 2011, the State again convicted Paniagua with possession of a controlled substance and the additional charge of bail jumping. The bail jumping charge arose from Paniagua’s failure to appear at a court hearing on the 2011 possession charge.

In June 2018, a jury found Victor Paniagua guilty of second degree murder, second degree assault, unlawful possession of a firearm, and witness tampering. The trial court calculated Paniagua’s offender score at 8 for the murder and assault charges. It also calculated a 7 for the unlawful firearm possession and witness tampering charges. The offender score calculation included one point each for the 2007 and 2011 possession of a controlled substance convictions and one point for the 2011 bail jumping conviction. As a result, the
court then sentenced Paniagua to 453 months’ total confinement.

After the issuance of State v. Blake, Mr. Paniagua requested resentencing. He argued the superior court should resentence him and reduce his offender score by three points. Ultimately, the superior court deducted only two points from Paniagua’s offender score. The superior court resentenced Paniagua to 412 months’ total confinement.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that State v. Blake held that Washington’s drug possession statute violated the due process clause. The statute penalized one for passive, innocent, or no conduct without requiring the State to prove intent.

“The Washington Supreme Court also did not address, in State v. Blake, the retroactivity of its decision,” said the Court of Appeals. “Nevertheless, the State and other courts have operated on the assumption that Blake should be applied retroactively. If a statute is unconstitutional, it is and has always been a legal nullity.”

Next, the Court of Appeals decided whether the bail jumping conviction was invalid on its face. When a defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its face. Here, however, the State did not convict Mr. Paniagua of a nonexistent crime when convicting him of bail jumping. “The crime remains in existence today,” said the Court of Appeals. “The conviction is not facially invalid.”

Next, the court raised and dismissed Paniagua’s arguments that the State convicted him of bail jumping while facing charges brought pursuant to an unconstitutional statute:

“Still, he cites no decision supporting the proposition that being convicted or held, under an unconstitutional criminal statute, renders escaping from jail or bail jumping permissible. To the contrary, under the universal rule, the unconstitutionality of a statute under which the defendant was convicted or charged does not justify escape from imprisonment . . . We find no decision addressing bail jumping when facing charges under an unconstitutional statute.” ~WA Court of Appeals.

With that, the Court of Appeals affirm the superior court’s inclusion of Victor Paniagua’s 2011 conviction for bail jumping in his offender score and affirmed his resentencing.

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

Discarded DNA Admissible

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

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

Deliberate Cruelty

Burning Red Flare Held Up At Night by RockfordMedia | VideoHive

In State v. Burrus, the WA Court of Appeals held there was sufficient evidence the defendant demonstrated deliberate cruelty to the victim when he poured gasoline on the victim, lit a flare and set the victim on fire.

BACKGROUND FACTS

Mr. Burrus poured gasoline on victim Mr. Busch and threw a lit flare at him, causing him to catch fire. Busch suffered second and third degree burns on 30 percent of his body. The State charged Burrus with attempted first degree murder with the aggravating factor that his conduct manifested deliberate cruelty. The jury found Burrus guilty as charged.

Based on the jury’s finding of deliberate cruelty, the trial court imposed an exceptional  upward sentence. The trial court found that the aggravating factor of deliberate cruelty was a compelling reason to justify an exceptional sentence and imposed a sentence of 300 months.

On appeal, Mr. Burrus argued the the trial court erred in imposing an exceptional sentence based on the jury’s finding of deliberate cruelty.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals stated that under the Sentencing Reform Act, generally, a court must impose a sentence within the standard range. A court may depart from the guidelines and impose a higher sentence if it finds substantial and compelling reasons. The existence of an aggravating factor may support an exceptional sentence.

Next, the court addressed the issue of whether the lack of comparative evidence meant there was insufficient evidence to supported the jury’s finding of deliberate cruelty.

“Burrus says insufficient evidence supports the jury’s finding of deliberate cruelty,” said the Court of Appeals. “He contends that because the State failed to provide comparative evidence of typical attempted first degree murders, the jury had insufficient evidence to determine whether the facts here were atypical.”

However, the Court of Appeals disagreed with Burrus and held that the State is not required to provide the jury with examples of typical attempted first degree murders:

“It is within a jury’s capability, based on their common sense and common experience, to determine that dousing a person in gasoline, lighting them on fire, and then leaving them to burn is deliberately cruel.” ~WA Court of Appeals

Consequently, the Court also reasoned that Mr. Burrus cannot assert a vagueness challenge to the deliberate cruelty aggravator, either.

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.

 

FBI Releases 2019 Hate Crime Statistics

Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

Right to Present a Defense

1538.5 Motions To Suppress Evidence In California

In State v. Jennings, the WA Court of Appeals held the trial court’s exclusion of a shooting victim’s toxicology report indicating the victim had methamphetamine in his body at the time of his death did not violate the defendant’s constitutional right to present a defense.

BACKGROUND FACTS

On the date of the incident, the defendant Mr. Jennings accompanied his friend Mr. Redman to get Redman’s car from a mobile home in Puyallup, Washington. Redman had been living there, but had recently been kicked out. Drug activity occurred there. Jennings was there to defuse any hostilities between Redman and others at the house. Jennings armed himself with bear spray and a gun.

When they arrived, Jennings was on high alert. He knew violent events had recently occurred there. His friend Mr. Redman got into an argument with Mr. Burton, an individual at the house. Redman had his gun out. Jennings was familiar with the behavior of people who consumed methamphetamine. He realized that both Redman and Burton were high on methamphetamine and acting aggressively.

Burton and Redman argued about Redman’s car and then began to scuffle, wrestling in the foyer of the house. Jennings sprayed his bear spray at them to break up the fight. Burton then turned around and started walking toward Jennings, who backed up. Jennings believed Burton had Redman’s gun.

Jennings feared for his life. He was afraid Burton was reacting violently because he was high on methamphetamine. Jennings fired his gun and hit Burton twice. Burton died at the scene shortly after the shooting and before the ambulance arrived.

Jennings was arrested the next day. He was charged with second degree intentional murder (RCW 9A.32.050(1)(a)), second degree felony murder predicated on second degree assault (RCW 9A.32.050(1)(b)), and unlawful possession of a firearm.

At trial, Jennings claimed at trial that he shot Burton in self-defense. However, the judge excluded the toxicology report showing that Burton had methamphetamine in his body at the time of his death.  A jury found Jennings guilty of second degree felony murder.

Jennings appealed on numerous issues, including arguments that the trial court violated his constitutional right to present a defense by excluding a toxicology report showing that Burton had methamphetamine in his body at the time of his death.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by emphasizing that criminal defendants have a constitutional right to present a defense under the Sixth Amendment. Furthermore, evidence of self-defense must be assessed from the standpoint of the reasonably prudent person standing in the shoes of the defendant, knowing all the defendant knows and seeing all the defendant sees. Finally, the court reasoned that evidence that might impact a defendant’s assessment of the danger presented, like the victim’s prior specific violent acts, is admissible only if known to the defendant when the incident occurred.

“In analyzing the Sixth Amendment right to present a defense, we balance the State’s interest in excluding the toxicology report against Jennings’s need for evidence showing that his subjective fear was reasonable,” said the Court of Appeals.

The Court further reasoned that in this case, the toxicology report did not have extremely high probative value and it did not constitute Jennings’s entire defense. “At trial, Jennings testified that what he observed on the day of the shooting gave rise to his subjective fear . . . his belief that Burton was high on methamphetamine,” said the Court.

“Jennings has not shown that there was a reasonable probability that any additional corroboration from the toxicology report would have materially changed the result at trial,” said the Court. “We hold that even if the trial court abused its discretion by excluding the toxicology report under ER 401 and 402, this ruling was harmless error.”

With that, the Court of Appeals upheld Mr. Jennings’ conviction.

My opinion? Evidentiary and legal issues aside, these facts are terribly tragic. My heart goes out to the friends and families of all who were impacted by this. From a legal standpoint, however, It appears the WA Court of Appeals conducted a basic balancing test under Washington’s Rules of Evidence and determined that the toxicology report of the victim’s meth/blood levels was neither probative nor relevant at trial.

Under Washington’s Rules of Evidence, relevant evidence is defined in ER 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 402 provides that evidence which is not relevant is not admissible. Finally, ER 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice.

Here, the Court of Appeals was convinced that Mr. Jennings’ self-defense theory was properly supported by his testimony that he responded in self-defense to the victim’s meth-induced attack. Therefore, no other evidence was necessary to admit more evidence that the victim was high on meth. Jennings’ testimony, by itself, was enough. Any additional evidence on that issue was therefore cumulative, repetitive, unnecessary and potentially prejudicial to the State’s case under ER 403.

Please contact my office if you, a friend or family member face criminal charges and self-defense is a possible defense. It’s important to hire an experienced criminal defense trial attorney who understands the law, the rules of evidence and how both contribute to trial defenses.

Guilty Verdicts Must Be Unanimous

In Louisiana, you can be convicted of a serious crime by a 10-2 ...

In Ramos v. Louisiana, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that guilty verdicts must be unanimous.

BACKGROUND FACTS

In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts.

In this case, the defendant Mr. Ramos was convicted of second degree murder in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He appealed his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial.

COURT’S ANALYSIS & CONCLUSIONS

Justice Gorsuch delivered the opinion of the Court, which reversed Ramos’s conviction on the basis that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.

First, the Court reasoned that a “trial by an impartial jury” requires that a jury must reach a unanimous verdict in order to convict.

“Juror unanimity emerged as a vital common law right in 14th-century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified . . . Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court.” ~Justice Gorsuch, United States Supreme Court

Second, the Court reasoned Louisiana’s and Oregon’s unconventional jury trial schemes had a long history of being viewed as unconstitutional. It stated that jury unanimity was essential to the right to a fair trial guaranteed by the Sixth Amendment. Furthermore, research has demonstrated that a unanimous jury requirement strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.

Finally, the Supreme Court overturned its deeply divided decision in Apodaca v. Oregon, which concluded that jury unanimity was required in federal criminal trials but not in state criminal trials. In short, the Court reasoned that modern empirical evidence and subsequent case law have undermined Apodaca’s reasoning and conclusions.

My opinion? The Court’s decision was a major victory for protecting the rights of criminal defendants. The Court recognized that jury unanimity has historically been an essential element of the Sixth Amendment right to an impartial trial by jury in criminal cases. Also, the potential impact of Ramos v. Louisiana extends far beyond issues of criminal procedure, as the justices’ spirited debate over when and whether to overturn precedent took center stage and illustrated deep divisions within the Court.

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

Washington State Bans ‘Gay Panic’ Defense of Homicide

Kuhnhausen, 17, disappeared in early June and her remains were discovered Dec. 7, southeast of Battle Ground. A Vancouver man was charged with second-degree murder and malicious harassment, which is a hate crime in Washington. He has pleaded not guilty. Authorities said the Vancouver teenager was strangled after her assailant learned she was transgender.

The new law blocks a defendant from using a defense based on discovery or disclosure of the victim’s actual or perceived gender identity or sexual orientation and would prevent a claim of Diminished Capacity because the defendant did not fully comprehend the nature and gravity of the alleged crime.

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

A Cell Phone “Ping” Is a Search

Image result for cell phone ping

In State v. Muhammad, the WA Supreme Court held that a cell phone “Ping” is a search under the WA Constitution and the Fourth Amendment.

BACKGROUND FACTS

Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,” said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.

WA Supreme Court Invalidates “Community Caretaking” Search

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In State v. Boissellethe WA Supreme Court held a police officer’s warrantless entry into the defendant’s duplex in this case violated article I, section 7 of the WA Constitution because their emergency aid function search was a unlawful pretext for a criminal investigation as the officers were suspicious, if not convinced, that a crime had taken place before entering the unit.

BACKGROUND FACTS

Law enforcement officers were dispatched to Mr. Boisselle’s home after two anonymous 911 calls reported that a man shot and possibly killed someone at the residence. While responding to the calls, the officers learned that the residence was related to an ongoing missing person/homicide investigation. Unable to determine whether someone was alive inside the home, the officers entered the residence and conducted a warrantless search, discovering evidence of a murder therein. Boisselle  was arrested and jailed.

Boisselle moved to suppress the evidence, arguing that the officers’ warrantless search was unlawfully pretextual  under article I, section 7 of the Washington Constitution. The trial court denied Boisselle’s motion, concluding that the officers’ search fell within the emergency aid function of the community caretaking exception to the warrant requirement. Following a jury trial, Boisselle was convicted of second degree murder and second degree unlawful possession of a firearm. The Court of Appeals affirmed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

I. The Community Caretaking Exception

First, the WA Supreme Court agreed that the application of the community caretaking exception has become muddled, and took this opportunity to clarify the appropriate factors in determining whether an officer has exercised his or her emergency aid community caretaking function.

“The community caretaking exception is one such exception to the warrant requirement,” said the Court. “Under the community caretaking exception, law enforcement officers may make a limited invasion of constitutionally protected privacy rights when it is necessary for officers to perform their community caretaking functions.” The Court explained this exception recognizes that law enforcement officers are “jacks of all trades” and frequently engage in community caretaking functions that are unrelated to the detection and investigation of crime, including delivering emergency messages, giving directions, searching for lost children, assisting stranded motorists, and rendering first aid.

Next, the Court created the following multi-part test for evaluating whether an officer exercised his or her community caretaking function when conducting a warrantless search:

(1) Was the community caretaking exception used as a pretext for criminal investigation? If the court finds pretext, the analysis ends. If the court determines that the exception was not a pretext, the analysis continues is question is answered negatively, the analysis continues.

(2)(a) If the search fell within an officer’s general community caretaking function, such as the performance of a routine check on health or safety, the court must determine whether the search was “reasonable.” “Reasonableness” depends upon a balancing of a citizen’s privacy interest in freedom from police intrusion against the public’s interest in having police perform a community caretaking function.

(2)(b) If the search fell within an officer’s emergency aid function which arises from a police officer’s community caretaking responsibility to come to the aid of persons believed to be in danger of death or physical harm, the court, before determining whether the search is “reasonable,” must first determine whether: “(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.”

II. The Warrantless Search of Boisselle’s Home Was Pretextual.

The Court reasoned that an unlawful pretextual search occurs when occurs when officers rely on some legal authorization as a mere pretense to dispense with a warrant when the true reason for the seizure is not exempt from the warrant requirement. When determining whether a given search is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the objective reasonableness of the officer’s behavior.

“Viewing the totality of the circumstances, we are unconvinced that the officers’ search of Boisselle’s home was not a pretext for a criminal investigation.”

The Court reasoned that here, law enforcement’s involvement began because of two anonymous 911 calls reporting a crime. When the officers arrived at Boisselle’s duplex unit, they noticed a smell that could be attributed to a decomposing body, and they sought to confirm whether a crime had been committed or if a crime victim was inside. The officers were eventually able to see into the unit and saw signs of a struggle and missing carpet, which could be a sign that someone sought to cover up a crime scene.

“Taken together, these facts demonstrate that the officers were suspicious, if not convinced, that a crime had taken place,” said the Court. “Because of the officers significant suspicions, the search of Boisselle’s home was necessarily associated with the detection and investigation of criminal activity.”

Accordingly, the Court held the officers’ warrantless search did not fall under the emergency aid function of the community caretaking exception, and it violated article I, section 7 of the WA Constitution. Thus, the trial court erred in denying Boisselle’s motion to suppress. “We reverse the Court of Appeals and remand to the trial court for further proceedings,” said the Court.

My opinion? Grisly as the facts appear to be, the Court reached the right decision. Freedom from government intrusion lies at the very foundation of Western law and culture, and is one of our nation’s most cherished freedoms. That’s why we insist on police obtaining warrants, unless exigent circumstances dictates otherwise.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member were charges with a crime involving an unlawful pretextual search. Hiring competent defense counsel is the first and best step toward achieving justice.

Overcoming Implicit Bias

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In State v. Berhe, the WA Supreme Court held that a trial court failed to adequately oversee allegations of racism and implicit bias among jurors deliberating in a Shoreline man’s first degree murder and first degree assault trial in 2016.

FACTUAL BACKGROUND

In 2016, a King County jury convicted Tomas Berhe, then 31, of murder and assault in a shooting in Seattle’s Eastlake neighborhood. Mr. Behre is African-American. He was convicted of killing 21-year-old Everett Williams, whom Berhe thought had shot his cousin. A second man who was in the Eastlake alley with Williams was also shot.

After the trial concluded with a guilty verdict in early 2016, the sixth juror contacted both defense attorneys and the court with concern, according to the opinion. Weeks later, Berhe asked the judge for a new trial and requested an evidentiary hearing to investigate the allegations of racial bias, among other concerns.

In a written declaration presented by the defense, the sixth juror said she was the only African American on the jury in the trial of an African American defendant and described being the last holdout among four jurors who had initially leaned against conviction.

By the trial’s end, the sixth juror said she only agreed to vote for a guilty verdict because she felt “emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors,” the opinion quotes the declaration as saying.

The juror said others had mocked her as stupid and illogical when she suggested that Berhe could have taken the murder weapon from someone else. She described two jurors as taunting her, saying that she would “let him walk,” and said she felt mocked after several jurors interpreted something she’d said as commentary on police misconduct toward African Americans.

Responding to the defense’s declaration, prosecutors sent questions to several jurors asking if they themselves, or another juror, had done anything to the sixth juror that was motivated by racial bias during deliberations. Results were not conclusive, and the Superior Court judge found insufficient evidence of juror misconduct and denied a request for a new trial.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Supreme Court described how racial bias harms trial verdicts:

“Unlike isolated incidents of juror misbehavior, racial bias is a common and pervasive evil that causes systemic harm to the administration of justice. Also unlike other types of juror misconduct, racial bias is uniquely difficult to identify.”

Second, the Court reasoned that Courts must carefully oversee any inquiry into whether explicit or implicit racial bias influenced a jury verdict.

“Rather than permitting the parties alone to investigate allegations of racial bias, once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury’s verdict must be conducted under the court’s supervision and on the record,” said the Court. “Therefore, as soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified.”

Third, the Court reasoned that the unique challenge of assessing implicit racial bias requires a searching inquiry before a court can decide whether an evidentiary hearing is needed. “Implicit racial bias is a unique problem that requires tailored solutions,” said the Court. “Therefore, when it is alleged that racial bias was a factor in the verdict, the trial court must oversee and conduct a thorough investigation that is tailored to the specific allegations presented before deciding whether to hold an evidentiary hearing and before ruling on a defendant’s motion for a new trial,” said the Court.

The Court concluded that the trial court abused its discretion by failing to exercise adequate oversight over the investigations into juror 6’s allegations of racial bias and by failing to conduct a sufficient inquiry before denying Berhe’s motion for a new trial without an evidentiaiy hearing. “We therefore vacate the trial court’s order denying Berhe’s motion for a new trial and remand for further proceedings.”

My opinion? Excellent decision. Groundbreaking, even. In what could be a first-of-its-kind rule nationwide, the judges’ opinion establishes procedures for trial court judges to investigate implicit racial bias reported during jury deliberations.

This isn’t the first time our Supreme Court has openly exercised judicial activism. In April, the state Supreme Court published General Rule 37, a rule for courts saying that challenges during jury selection based on implicit, institutional and unconscious race and ethnic biases should be rejected, she noted. Now, similar protection from bias extends into the jury room.

Excellent decision.

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