Category Archives: law enforcement

Entrapment & Sex Crimes

Online sting was 'clear case of entrapment:' lawyer | CTV News

In State v. Johnson, the WA Court of Appeals held that a Defendant cannot claim Entrapment for numerous attempted sex offenses by responding to a fake Craigslist add in the “Casual Encounters” section created by police officers conducting an online sting operation.

BACKGROUND FACTS

Law enforcement created a posting in the Craigslist casual encounters section. Mr. Johnson responded to the ad. His communications with the (as-yet-unknown) police led Mr. Johnson to believe the add was posted by a 13-year-old female named “Brandi” who was home alone. Mr. Johnson was instructed to drive to a minimart and await further instructions via text. Johnson drove to the designated minimart. “Brandi” then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.

Johnson was charged with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During trial, he requested the Entrapment Defense via a jury instruction. However, the trial judge denied Johnson the defense and jury instruction. The jury found him guilty of all charges.

Johnson appealed, claiming ineffective assistance of counsel and that the trial judge erred by denying the Entrapment defense.

COURT’S ANALYSIS & CONCLUSIONS

The court explained that in order to prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. Importantly, as a matter of law, the Court also stated the following:

“Entrapment is not a defense if law enforcement merely afforded the actor an opportunity
to commit a crime.”

“Here, Johnson points to no evidence to support an entrapment instruction,” reasoned the Court. Here, law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. This add, however, was not entrapment on the part of police. The add merely presented an opportunity for Mr. Johnson to incriminate himself and commit a crime:

“Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because ‘Brandi’ was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When ‘Brandi’ suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.”

The court also rejected Johnson’s argument that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children.

“But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense,” said the Court. Instead, explained he Court, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.

The Court of Appeals concluded that because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, the trial court did not err by refusing to instruct the jury on entrapment. The court also denied Mr. Johnson’s claims of ineffective assistance of counsel.

My opinion? Entrapment is a very difficult defense to prove under these circumstances. Law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.

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

End ICE Courthouse Arrests

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Excellent article in Crosscut by  Lilly Fowler describes how the Washington state Legislature is considering a bill that would prohibit federal immigration agents without a warrant from making arrests within one mile of a courthouse.

If signed, the legislation – SB 6522 – would also require judicial warrants to be reviewed by a court before being used. And federal immigration agents would have to check in with local court staff before entering a courthouse. A website monitored by the state Administrative Office of the Courts would track all arrests made at courthouses.

Finally, the bill would prohibit court staff, including prosecutors, from sharing information with federal immigration officials. A recent report from the University of Washington Center for Human Rights revealed that county prosecutors have been sharing information with U.S. Immigration and Customs Enforcement (ICE) and Border Patrol agents to facilitate the arrests of undocumented immigrants at state and local courthouses.

As reported by Ms. Fowler, the outcry over immigrants being arrested at courthouses by plainclothes ICE and Border Patrol officials has been persistent. Washington state Attorney General Bob Ferguson sued the federal government last month in an attempt to stop such arrests, and the state Supreme Court is looking at rules that would bar the apprehensions.

At a hearing on the bill last week before the House Civil Rights and Judiciary Committee, legislators heard testimony in Spanish from a man named Carlos. He told lawmakers he and his wife recently visited the courthouse in Ephrata, Grant County, to renew his car’s license plates. While his wife waited in the vehicle, Carlos stood in line inside the courthouse and noticed a man staring at him. As Carlos exited the courthouse, another man with a gun approached him, introduced himself as a federal immigration official and, in Spanish, said, “Soy la migra” (or “I am ICE/Border Patrol”). Carlos was promptly arrested. Although he was eventually released by the ICE agent, the experience left him shaken and terrified.

Enoka Herat, an attorney with the American Civil Liberties Union of Washington, said the state would not be the first to protect its court system. In November, the Oregon Supreme Court barred warrantless arrests at courthousesCaliforniaNew York and New Jersey have also sought similar protections for immigrants. In Massachusetts, a federal judge barred courthouse arrests while a lawsuit makes its way through the court system.

My opinion?

I hope SB 6522 gains support and passes. The bill  isn’t about hampering the work of law enforcement. It’s about but ensuring the public can use courts to pay fines, serve as witnesses, seek protection orders and pursue other matters related to the justice system, without the fear of unexpected encounters with law enforcement.  Equal access to courts is something both Democrats and Republicans should be able to agree upon.

New Year’s Eve DUI Patrols

Image result for A New Year but an old truth- There’s no safe place for impaired drivers to hide. 

The WA State Patrol (WSP) issued a press release stating WSP Troopers will be out looking for impaired drivers this week in preparation for the New Year. Patrols will be increased to include Troopers brought out to supplement regularly assigned patrols. WSP has partnered with five other states to form the Western States Traffic Safety Coalition. Washington, Oregon, California, Idaho, Nevada and Arizona are working together to save lives by removing impaired drivers from all of our roadways. The message is clear; A New Year but an old truth- There’s no safe place for impaired drivers to hide.

These extra patrols will include specially trained troopers to help identify and detect drug impaired drivers. Most WSP troopers receive additional training in drug impaired driver detection. This training, Advanced Roadside Impaired Driving Enforcement (ARIDE) is specifically focused on detecting drivers impaired by drugs. Troopers trained as Drug Recognition Experts (DRE) will also be out to assist in identifying and detecting drug impaired drivers. DREs receive training to identify what drugs a driver may be impaired by.

Please contact my office if you, a friend or family member face DUI or any other alcohol-related driving crimes. It’s imperative to hire an experienced defense attorney who is knowledgeable of DUI defense.

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 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.

Fines Increase for Carpool Cheaters

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A new state law that increases fines for carpool lane cheaters goes into effect Sunday.

The base fine will go up by $50, meaning a first-time violator on freeways or in electronic toll lanes will be fined $186. Second-time violators within two years will receive a fine of $336.

Those trying to trick troopers with a dummy or mannequin will have an extra $200 added to their tickets.

The Washington State Patrol has said high-occupancy vehicle lane cheating is the top complaint by commuters in Seattle’s King County. Last year in King County alone, troopers handed out more than 11,000 tickets to violators caught in the carpool lane.

Carpool violators aren’t an uncommon sight. During an emphasis patrol last September, the Washington State Patrol cited 1,671 drivers in three counties within a week. One driver was caught three times.

HERO Program

Drivers can report HOV, HOT lane or ferry line violators online or by calling at 1-877-764-HERO. We will then mail educational materials about HOV, HOT lane and ferry line usage to the registered owner of the vehicle that was seen violating.

First-time HOV lane violators are sent an educational brochure. Second-time HOV lane violators are sent a letter from WSDOT. Third-time HOV lane violators are sent a letter from the Washington State Patrol.

Please contact my office if you, a friend or family member are pulled over for HOV lane violations.

A Police Vest Is a Uniform

Image result for police vests

In State v. Connors, the WA Court of Appeals held that a vest issued by the police department that the officer wore over “normal clothes” was, in fact, a uniform as it had a Spokane Police badge on front and clear block reflective letters across the back that said “police.”

BACKGROUND FACTS

Mr. Connors was driving a stolen car when he failed to respond to a signal to stop issued from a police vehicle. Instead of stopping, Mr. Connors sped away to an apartment complex. He then abandoned the stolen car and fled on foot until he was apprehended by the pursuing officer. The officer’s attire at the time of the incident consisted of a black external vest which fit over normal clothes, a Spokane Police patch on the front and reflective letters across the back that says “Police.”

Mr. Connors was charged with, and convicted of, attempting to elude a police vehicle and possession of a stolen motor vehicle. He appealed his eluding conviction.

COURT’S ANALYSIS & CONCLUSIONS

“A conviction for attempting to elude a police vehicle requires the State to prove, beyond a reasonable doubt, that the defendant was signaled to stop by a uniformed police officer,” said the Court of Appeals.

The Court further reasoned that when interpreting statutory text, the goal is to discern legislative intent. When a statute does not define a term, courts will give the term “ ‘its plain and ordinary meaning unless a contrary legislative intent is indicated. “Generally, courts derive the plain meaning from context as well as related statutes,” said the Court. “But a standard English dictionary may also be employed to determine the plain meaning of an undefined term.”

Here, the Court found that the clothing described during Mr. Connors’s trial readily meets the ordinary definition of a “uniform.” The vest worn by the officer was specific to the Spokane Police Department. It served to notify the public that the officer was an official member of the police department. The fact that the officer wore “normal clothes” under his police vest does not mean he was not wearing a uniform. “Some uniforms are comprehensive from head to toe,” said the Court. “Others are not. The eluding statute makes no preference.”

“So long as an officer deploying the signal to stop is attired in a distinctive garment that clearly identifies him as a member of law enforcement, the statutory requirement of a “uniform” is met.”

With that, the Court of Appeals affirmed the conviction.

Please contact my office if you, a friend or family member are charged with a crime and it’s questionable whether the law enforcement officer was appropriately and/or distinctly uniformed during the stop and arrest. Hiring competent defense counsel is the first and best step toward achieving justice.

“Am I Free To Leave?”

Image result for police cars surround vehicle

In State v. Johnson, the WA Court of Appeals held that a “seizure” of a person occurs when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure.

BACKGROUND FACTS

Officer Yates and Officer George of the Lynnwood Police Department were engaged in a proactive patrol late at night in an area known to have a high rate of criminal activity. The officers observed a silver vehicle enter a motel parking lot and park in a stall. After the vehicle came to rest, about a minute and a half passed without any person entering or leaving the vehicle. The officers became suspicious that its occupants were using drugs.

The officers, both of whom were armed and in uniform, approached the vehicle on foot and stood on opposite sides adjacent to the driver’s and passenger’s doors. They shined flashlights into the vehicle’s interior to enable them to see the vehicle’s occupants and ensure that neither was holding anything that could put the officers in danger. Because the vehicle was also flanked on both sides by cars parked in adjoining stalls, the officers had minimal space to move.

Officer Yates did not see any drugs or drug paraphernalia when he shined his flashlight inside the passenger compartment. Inside were the defendant Mr. Johnson and a female passenger.

Officer Yates stood on the passenger side while Officer George stood adjacent to the driver’s door. Yates sought to start a conversation with Johnson, who was in the driver’s seat, and did so by asking, “Hey, is this Taylor’s vehicle?” In fact, there was no “Taylor”; the ruse was intended to make Johnson feel more comfortable, in the hope that he would talk with the officer. Johnson appeared confused by the question, and Yates asked, again, whether the vehicle was “Taylor Smith’s vehicle.” In response, Johnson stated that the vehicle was his own and that he had recently purchased it.

Meanwhile, Officer George, who was leaning over the driver’s side door, noticed a handgun placed between the driver’s seat and the door.

George alerted Yates to the presence of the firearm, drew his own handgun, opened the driver’s door and removed the weapon from Johnson’s vehicle. Subsequently, Johnson was removed from the vehicle. Meanwhile, police dispatch informed the officers that Johnson’s driver’s license was suspended in the third degree, and that he had an outstanding arrest warrant and a felony conviction. The officers then informed Johnson that he was being detained but not placed under arrest and advised him of his Miranda rights.

Eventually, Johnson was charged with unlawful possession of a firearm in
the first degree.

Before trial, Johnson moved to suppress the evidence of the gun found in his possession, contending that it was found attendant to his unlawful seizure. After an evidentiary hearing, the trial court granted Johnson’s motion. However, the judge did not make a determination as to whether Johnson was seized prior to the discovery and removal of the firearm, instead ruling that the encounter was a “social contact” and that “law enforcement had an insufficient basis to initiate a social contact.” The trial court further acknowledged that granting the motion to suppress essentially terminated the State’s case. The State appeals from the order granting Johnson’s motion.

COURT’S ANALYSIS & CONCLUSIONS

“In a constitutional sense, the term “social contact” is meaningless. The term has been adopted by lawyers and judges to describe circumstances that do
not amount to a seizure.”

The Court of Appeals further reasoned that term has been adopted by lawyers and judges to describe circumstances that do not amount to a seizure. It explained, for example, that a social contact is said to rest someplace between an officer’s saying ‘hello’ to a stranger on the street and, at the other end of the spectrum, an investigative detention (i.e., Terry stop).

“Fortunately, seizure jurisprudence is well-developed,” said the Court. It said the WA Constitution does not forbid social contacts between police and citizens. A police officer’s conduct in engaging a defendant in conversation in a public place and asking for
identification does not, alone, raise the encounter to an investigative detention. Not
every encounter between a police officer and a citizen is an intrusion requiring an
objective justification. Thus, the police are permitted to engage persons in conversation and ask for identification even in the absence of an articulable suspicion of wrongdoing.

“However, officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. The test is whether a reasonable person faced with similar circumstances would feel free to leave or otherwise terminate the encounter.”

The Court of Appeals held the search and seizure unlawful. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” (5) when the officers approached the vehicle and initiated a conversation with Johnson, they saw him seated with a female passenger and neither officer observed any signs of drug use, (6) Johnson was cooperative with Officer Yates and answered his questions, and (7) beyond the aforementioned hunch, the officers were aware of nothing that constituted a reasonable, articulable suspicion of potential criminal activity.

With that, the Court of Appeals held that the trial court did not err in granting
Johnson’s motion to suppress evidence of the subsequently discovered firearm.

My opinion? Good decision. Please contact my office if you a friend or family member are arrested for a crime and believe an unlawful search or seizure happened. Hiring an experienced defense attorney is the first and best step toward justice.

Washington Crime Report Released

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The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

Please contact my office if you, a friend or family member are charged with a crime. Consultations are free. I provide effective criminal defense for people charged with felonies and misdemeanors. It is extremely important to hire an attorney like myself who is willing to devote significant attention to the case. I say this because people convicted of a crime face more than just criminal penalties. They also face a potential lifelong social stigma, as well as diminished employment, housing and educational opportunities. I proudly represent clients in Skagit and Whatcom County, Washington.

 

Car Stop & Purse Search

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In State v. Lee, the WA Court of Appeals held that a passenger’s consent to a search of her purse was not spoiled by police conduct during the traffic stop.

BACKGROUND FACTS

Defendant Ms. Lee was the front seat passenger in a car driven by Mr. Peterman. Detective Tilleson initiated a traffic stop for two traffic infractions. Detective Tilleson asked Peterman for his identification, learned his license was suspended, and arrested him for first degree driving while license suspended or revoked. Peterman consented to a search of the car.

Detective Tilleson told Ms. Lee to step out to facilitate his search of the car. She left her purse inside the car. Detective Tilleson ran Lee’s identification information to determine if she had a driver’s license so she could drive the car if it was not impounded. He learned Lee had a valid driver’s license and a conviction for possession of a controlled substance.

Lee began to pace back and forth near the car. At some point, Detective Fryberg directed Lee to sit on a nearby curb. During a conversation, Lee told Detective Tilleson the purse in the car was hers. Detective Tilleson asked Lee for permission to search her purse, telling her that he was asking “due to her prior drug conviction.” He also gave Lee warnings pursuant to State v. Ferrier that she was not obligated to consent and that she could revoke consent or limit the scope of the search at any time.

Lee consented to the search. When Detective Tilleson asked Lee if there was anything in her purse he should be concerned about, she said there was some heroin inside. Detectives found heroin and methamphetamine in her purse, advised Lee of her Miranda rights, and arrested her for possession of a controlled substance with intent to manufacture or deliver.

Before trial, Lee moved to suppress the evidence obtained from the search of her purse. The trial court denied Lee’s motion to suppress the results of the search of her purse. The court found “the testimony of the detectives involved was more credible than the defendant’s testimony. The trial court also determined that all of Lee’s statements were voluntary and that none were coerced. Finally, the court concluded that Lee validly consented to a search of her purse.

At the bench trial, the judge found Lee guilty as charged. Lee appealed on arguments that she did not validly consent to the search of her purse because the detectives unlawfully seized her.

LEGAL ISSUE

Whether police exceeded the reasonable scope and duration of the traffic stop by asking Ms. Lee’s consent to search her purse while mentioning her prior drug conviction.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals stated that both the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution prohibit a warrantless search or seizure unless an exception applies. Voluntary consent is an exception to the warrant requirement.

“But an otherwise voluntary consent may be vitiated by an unlawful seizure,” reasoned the court of Appeals. “When analyzing a passenger’s consent to search the purse she left in
the car, we start with the traffic stop that led to the search.”

Here, the Court said the Fourth Amendment and WA Constitution both recognize an
investigative stop exception to the warrant requirement as set forth in the landmark U.S. Supreme Court case, Terry v. Ohio. “The rationale of Terry applies by analogy to traffic stops applies by analogy to traffic stops,” said the Court of Appeals.

The Court of Appeals explained that the proper scope of a Terry stop depends on the purpose of the stop, the amount of physical intrusion upon the suspect’s liberty, and the length of time the suspect is detained. A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. “Once that purpose is fulfilled, the stop must end,” reasoned the Court.

Ultimately, the Court found that once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger – here, Ms. Lee – if she consented to a search of the purse she left in the car. The detectives legitimately checked Lee’s identification to determine whether she was a licensed driver and could drive the car from the scene following Peterson’s arrest. And the search of the purse occurred roughly 18 minutes after the traffic stop began.

“We conclude Lee’s voluntary consent to search her purse was not vitiated by police conduct at the traffic stop. Specifically, under the totality of the circumstances, the police did not exceed the reasonable scope and duration of the traffic stop.”

In addition, the Court reasoned that the mention of Lee’s prior drug conviction must also be considered as part of the totality of the circumstances. “Here, there was a single mention of the conviction in passing,” said the Court. “There was no physical intrusion upon Lee.”

With that, the Court of Appeals concluded that the police did not exceed the reasonable scope or duration of the traffic stop under the totality of the circumstances. Therefore, Lee failed to establish that her voluntary consent to search her purse was vitiated by police conduct. Her conviction was affirmed.

Please contact my office if you, a friend or family member are charged with a crime involving a questionable search and seizure by the police. Hiring competent and experienced defense counsel is the first and best step toward justice.

Seattle Police Accountability Report: More Use of Force Against African Americans

Excellent article by of the Seattle Times reports that Seattle police are using force at low levels but still can’t fully explain why it is used against African Americans at disproportionately higher rates, according to the department’s annual report submitted to the federal judge overseeing court-ordered reforms.

The Seattle Police Department last week filed its 2019 Use of Force report, which shows that the use of force by officers remained “extraordinarily low” last year.

Officers reported using force at a rate of less than one quarter of 1 percent out of the nearly 400,000 incidents to which they responded, the report said. That’s in line with the rate reported a year earlier.

According to Miletich, the report is part of a series to show whether federally-mandated police reforms are being sustained, with an ultimate goal of terminating a court-ordered agreement by 2020. The updates are being provided to U.S. District Judge James Robart, who last year found the city in full compliance with the main terms of a 2012 consent decree with the U.S. Justice Department.

Judge Robart’s ruling triggered a two-year period in which the city must demonstrate that it is maintaining reforms to address allegations of excessive force and issues of biased policing. The city took the lead role in carrying out a self-analysis, although the Justice Department and the court’s monitor, Merrick Bobb, scrutinize the progress.

The police department’s use-of-force reports follow Bobb’s key finding in April 2017 that the department had made a dramatic turnaround. He concluded that overall use of force was down, and that when officers used it, it was largely handled in a reasonable way consistent with department policies.

Still, as in the 2018 report, the new figures show a disparity in the use of force against African Americans. Black males represented 32 percent of cases involving males, up from 25 percent a year earlier. Cases involving black females surged to represent 22 percent of incidents where force was used against females, compared with 5 percent in 2017. African Americans make up about 7 percent of Seattle’s population.

Racial disparity is a “significant ongoing concern” requiring further discussion and analysis within the limited role of law enforcement, the report said.

Yet current sociological and criminal-justice research has not found proven reliable methodology for accounting for all the “multitude of recognized factors” that may combine to result in the disparity, including education, socioeconomic status and family structure, the report said.

“In other words, while numbers can identify a disparity, they cannot explain the disparity,” the report said. At any rate, the police department said it would continue to consult academic experts to learn more, including the possible effects of implicit bias.

Please contact my office if you, a friend or family member had a negative experience which police which turned inappropriately violent. Although police officers have difficult jobs, police misconduct still exists.