Category Archives: law enforcement

State v. Allen: Prosecutor Commits Misconduct With Phrase, “Should Have Known.”

Accomplice, Constitutional Rights, Due Process, Evidence, Exceptional Sentencing, felony, Firearm, Homicide & Manslaughter, Jury Trial, law enforcement, police, Prosecutorial Misconduct, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Prosecutorial Misconduct in Texas: Right Now, it's an Appellate Fight - Dallas Justice Blog

In State v. Allen, the WA Supremes ruled that the Prosecuting Attorney committed prejudicial misconduct by misstating the standard upon which the jury may convict an accomplice.

This case involves the Lakewood police officer shootings.

The defendant Mr. Allen was friend and co-worker of Maurice Clemmons, who fatally shot four police officers in a coffee shop on November 29, 2009. Mr. Allen’s involvement transpired on the days leading up to the shooting.

This tragic story began in May 2009 when officers responded to reports that Clemmons was throwing rocks through his neighbors’ windows. Clemmons responded violently when officers arrived at the scene, and he was arrested for punching officers. He posted bail in November 2009, the month of the shootings.

Shortly after his release, Clemmons attended Thanksgiving dinner at his aunt’s house, where he expressed animosity toward the police. Specifically, he announced that if the police arrived to look for him, he would kill them and then go across the street to the elementary school and commit further acts of violence. Clemmons brandished a handgun while he described these acts. Allen, who was a friend and employee of Clemmons, was present at that dinner.

Three days later, Clemmons contacted Allen and told him they were going to wash the company truck. With Allen driving, Clemmons directed him to a car wash near a coffee shop in Lakewood. Upon arriving at the car wash, Allen parked the truck, got out, and walked across the street to a minimart.

During that time, Clemmons also left the car wash and entered the coffee shop, where the shootings occurred. When Allen returned to the truck, Clemmons appeared and told Allen that they had to leave. Allen claimed he drove only a few blocks until he left the truck upon discovering Clemmons was wounded. Allen also claimed that he did not know Clemmons was going to commit the murders.

Clemmons eventually ended up at his aunt’s house, and the truck was abandoned in a nearby parking lot. A few days later, Clemmons was killed by a Seattle police officer. Allen was arrested shortly afterward.

Allen was charged with four counts of Aggravated Murder in the first Degree. During trial, several spectators wore T -shirts that said, “‘You will not be forgotten, Lakewood Police,”‘ followed by the names of the four murdered officers. Allen objected to these T-shirts and asked that the shirts be covered. The trial court denied Allen’s motion.

At closing argument, the State was required to prove that Allen had actual knowledge that Clemmons would commit the murders. During closing argument, the prosecuting attorney initially stated the correct definition of “knowledge” as it was used in the jury instruction. However, immediately afterward, the prosecuting attorney stated that “for shorthand we’re going to call that ‘should have known.'” Also, the prosecuting attorney went on to repeatedly and improperly use the phrase “should have known” when describing the definition of “knowledge.”

The prosecuting attorney also presented a slide show simultaneously with his closing argument. This slide show repeatedly referred to the incorrect “should have known” standard. One slide even stated, “You are an accomplice if: … you know or should have known,” with the words “should have known” in bold. The prosecuting attorney made several more “should have known” comments in rebuttal argument.

The jury received instructions that correctly stated the law regarding “knowledge.” Particularly, instruction 9 said the following:

A person knows or acts knowingly or with knowledge with respect to a fact or circumstance when he or she is aware of that fact or circumstance. If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.

 Allen was convicted of four counts of Murder in the First Degree. Based on the aggravating circumstance, the trial court imposed an exceptional sentence of 400 years.

ISSUES ON APPEAL

The Court granted review on three issues: (1) Did the prosecuting attorney commit prejudicial misconduct by misstating the standard upon which the jury could convict Allen? (2) Does the “aggravator” found in RCW 9.94A.535(3)(v) apply to a defendant charged as an accomplice? (3) Was Allen prejudiced when spectators at trial wore T -shirts bearing the names of the murdered officers?

1. DID THE PROSECUTOR COMMIT MISCONDUCT?

The court ruled the Prosecutor committed prejudicial misconduct by misstating the standard upon which the jury could find Allen guilty. Here, the prosecuting attorney repeatedly misstated that the jury could convict Allen if it found that he should have known Clemmons was going to murder the four police officers.

The Court reasoned that, for example, the prosecuting attorney stated that “under the law, even if he doesn’t actually know, if a reasonable person would have known, he’s guilty.” As noted above, the “should have known” standard is incorrect; the jury must find that Allen actually knew Clemmons was going to murder the four police officers. Consequently, the Court concluded that the remarks were improper.

Furthermore, the improper comments prejudiced the defendant. First, the Prosecutor misstated a key issue of the case – knowledge. Second, the misstatement of law was repeated multiple times. Repetitive misconduct can have a “cumulative effect.” Third, the trial court twice overruled Allen’s timely objections in the jury’s presence, potentially leading the jury to believe that the “should have known” standard was a proper interpretation of law.

Fourth, and perhaps most important, the record reveals that the jury was influenced by the improper statement of law during deliberations. Finally, the misconduct by the State was particularly egregious. Based on the foregoing factors, the Court found that there was a substantial likelihood that the Prosecutor’s misconduct affected the jury verdict and thus prejudiced Allen.

 2. DOES THE “AGGRAVATOR” SENTENCING ENHANCEMENT APPLY TO AN ACCOMPLICE?

The Court answered “Yes” to this question. Here, the court sentenced Allen to an exceptional sentence based on the sentencing aggravator found in RCW 9.94A.535(3)(v). That statute contains no express triggering language automatically authorizing an exceptional sentence for accomplices. Therefore, Allen’s own misconduct must form the basis upon which the exceptional sentence applies.

The operative language of the statute here allows the court to sentence Allen above the standard range if the offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim’s status as a law enforcement officer is not an element of the offense.” Consequently, an exceptional sentence under RCW 9.94A.535(3)(v) may be imposed on remand if the jury finds the required elements based on Allen’s own misconduct.

3. DID THE SPECTATORS WEARING T-SHIRTS IN THE COURTROOM PREJUDICE ALLEN’S CASE?

The court decided that, based on the limited information in the record, it was unlikely that the t-shirts were inherently prejudicial. The T-shirts bore a message that said, “‘You will not be forgotten, Lakewood Police”‘ followed by a list of the victims’ names. The court said this message does not advocate for a message of guilt or innocence. Rather, the shirts were merely a silent showing of sympathy for the victims. Contrary to Allen’s arguments, the mere presence of words does not make a spectator display inherently prejudicial.

In conclusion, the prosecuting attorney committed prejudicial misconduct by misstating the proper standard upon which the jury could find Allen acted with knowledge. Based on that, the WA Supreme Court reversed the Court of Appeals and remanded for a new trial.

My opinion?

The shootings were exceptionally tragic. These officers left friends and family in the wake of their senseless death. That said, the Prosecutor in this case clearly committed misconduct. I’ve been in jury trials where Prosecutors will bend and stretch the the law when it comes to whether a defendant had knowledge they were committing a crime. Similar to the Prosecutor in this case, they’ll say “Well, the defendant should have known they were committing a crime.”

This is an ABSOLUTE misstatement of the law. “Knowing” and “Should Have Known” are two very, very different levels of understanding. Here, saying Mr. Allen “Should Have Known” that Clemmons would commit murder implies that Mr. Allen had a legal duty to know what Clemmons was thinking about before committing the heinous murders he committed. That’s wrong, and an improper statement of the law.

 Again, I extend my deepest condolences to the families and friends of the police officers who lost their lives. 

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. Davis: Unlawful Possession of Firearms, Rendering Criminal Assistance and Exceptional Sentences.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, Exceptional Sentencing, felony, Firearm, Homicide & Manslaughter, Jury Trial, law enforcement, Mount Vernon Criminal Defense Attorney, police, Probable Cause, Rendering Criminal Assistance, Sentencing, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Sherrard man to serve 7 years in prison for possession of stolen guns | wqad.com

WA Supremes gave an interesting opinion touching upon the defendants who were allegedly involved in the Lakewood police officer shootings from last year. In short, the Supreme Court could not reach a 5-4 majority opinion on the issue of whether the State lacked evidence to support the defendant’s convictions for Possession of a Stolen Firearm. However, the State reached a majority “No” decision on the issue of whether Exceptional Sentence applied to this case. 

The underlying facts of State v. Davis are notorious and undisputed. On Sunday, November 29, 2009, Clemmons entered a coffee shop just before 8:00 a.m. with two handguns and began shooting at four Lakewood police officers, fatally wounding three. The fourth officer struggled with Clemmons and shot Clemmons once in the side, but Clemmons wrested the fourth officer’s gun from him, fatally shot him, and left with the stolen gun.

While on the run, Clemmons contacted defendants Eddie Lee Davis and Letrecia Nelson shortly after the murders. Clemmons went to Davis’ home, requested a ride to a house in Auburn, and said he had been shot while killing four police officers. Davis drove Clemmons to Nelson’s home. Nelson let Clemmons and Davis inside. Clemmons told Nelson he had killed four police officers, been shot in the process, and stolen one officer’s gun.

At Clemmons’ request, he was given fresh clothing and help treating his gunshot wound. Nelson put some clothes and the stolen gun in a shopping bag that was left on a counter. Just before leaving, Clemmons asked where the gun was. Davis replied that it was in the bag on the counter and gave the bag to Clemmons. He left the home with the gun, and remained a fugitive from justice. On December 1, 2009, 2-3 days after the incident, Clemmons was gunned down by a Seattle Police Officer who pulled his car over.

Based on their actions following that contact, Davis and Nelson were charged by the Prosecutor and convicted at jury trial of Rendering Criminal Assistance and Possession of a Stolen Firearm. Davis was also convicted of Unlawful Possession of that self-same firearm. The conviction was appealed, and found its way to the WA Supreme Court.

The Court addressed the issues of whether (1) sufficient evidence supported Davis’ and Nelson’s convictions relating to possession of a firearm, and (2) whether the exceptional sentences for rendering criminal assistance factually were legally justified.

1. UNLAWFUL POSSESSION OF A FIREARM

The 4-person “majority” Court answered “Yes” to the question of whether sufficient evidence existed to support the convictions. The court reasoned there are two types of control: actual and constructive. A person actually possesses something that is in his or her physical custody, and constructively possesses something that is not in his or her physical custody but is still within his or her “dominion and control.”

For either type, to establish possession the prosecution must prove more than a passing control; it must prove actual control. The length of time in itself does not determine whether control is actual or passing, and whether one has actual control over the item at issue depends on the totality of the circumstances presented.

In light of the totality of the circumstances, the Court was convinced that the State presented sufficient evidence to support a finding that Clemmons temporarily relinquished control over the stolen gun to Davis and Nelson while his wound was treated and he changed clothes. There was no testimony that Clemmons made any specific requests or orders as to what should be done with the stolen gun while he was at Nelson’s home, and he did not even know where the gun was until he was ready to leave about 15 minutes later.

t is reasonable to infer that someone else decided what to do with the gun and that the decision-makers were Nelson and Davis because Nelson retrieved the shopping bag and put the gun inside it and Davis immediately responded when Clemmons asked where the gun was. Furthermore, both Nelson and Davis retained the ability to take further actions as to the gun until the time Davis gave it back to Clemmons because they knew where it was and Clemmons did not. Therefore, the court believed there was actual control sufficient to establish constructive possession.

2. EXCEPTIONAL SENTENCES

The Court answered “No” to the issue of whether the defendants should receive an exceptional upward sentence for their convictions. The Court said Exceptional Sentences are intended to impose additional punishment where the particular offense at issue causes more damage than that contemplated by the statute defining the offense. In that situation, the standard penalty for the offense is insufficient and an exceptional sentence based on an “aggravating factor” found by the jury remedies that insufficiency.

Here, the Court reasoned that, as a matter of law, the “aggravating factor” at issue cannot apply to Rendering Criminal Assistance charges.  Here, the “victim” was the public at large. However, Exceptional Sentences apply where there is “a destructive and foreseeable impact on persons other than the victim.” Because Rendering Criminal Assistance victimizes the general public, every member of the public is part of the victim class. There is no “other.” Therefore, the exceptional sentences imposed on Davis and Nelson were not legally justified.

The WA Supreme Court was highly divided on this issue. Justice Wiggins appeared to be the swaying vote. He concurred with the dissenting opinion that the evidence was insufficient to sustain Davis’s and Nelson’s firearm possession convictions. However, Justice Wiggins concurred with the majority opinion as far as the decision that the Exceptional Sentences imposed for Eddie Davis’s and Letricia Nelson’s convictions for Rendering Criminal Assistance were not legally justified.

Ultimately, the WA Supreme Court reversed the Court of Appeals and remand for further proceedings.

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. Huffman: Crossing the Centerline = DUI Arrest

Constitutional Rights, Due Process, DUI, law enforcement, misdemeanor, police, Terry Stop, Traffic Infractions, Uncategorized, Washington Court of Appeals, Washington State Patrol, , ,

Crossing A Double Yellow Line - i am traffic

Division I of the WA Court of Appeals decided that a single crossing of the centerline is sufficient to justify a traffic stop for a violation of RCW 46.61.100 Keep Right Except When Passing.

In State v. Huffman, defendant Sarah Huffman was arrested for driving under the influence of alcohol (DUI) after being pulled over for weaving in her lane, jerking back from the centerline and crossing the centerline on State Route 9. The two-mile section of the roadway is relatively straight, with a painted yellow line in the center that is at times a double solid line.

Police reports indicate the Trooper Eberle saw Huffman’s vehicle touch the centerline three times, each time immediately jerking back to the right side of the road. On the fourth occasion, the vehicle crossed the centerline by approximately one full tire width. Trooper Eberle did not recall any oncoming traffic at the time the vehicle crossed over the centerline. He stopped the vehicle and subsequently arrested the driver, appellant Sarah Huffman, for driving under the influence.

Huffman claimed the stop was unlawful because her single crossing of the centerline did not give rise to reasonable, articulable suspicion that she committed a traffic infraction under RCW 46.61.100. The district court agreed and granted her motion to suppress all evidence obtained after the stop. On appeal, the superior court reversed, concluding the stop was valid because Huffman committed a traffic infraction by crossing the centerline in violation of RCW 46.61.100.

Huffman appealed her case to Division I of the WA Court of Appeals. She argued that under State v. Prado, and its interpretation of RCW 46.61.140 Driving on Roadways Laned For Traffic, her momentary crossing of the centerline was not a traffic infraction and thus, there was no lawful basis for the stop.

Some background on RCW 46.61.140 and State v. Prado is necessary. In Prado, a law enforcement officer witnessed Mr. Tonelli-Prado’s vehicle cross an eight-inch white dividing the exit lane from the adjacent lane by two tire widths for one second. The Trooper pulled over Prado’s vehicle for violating RCW 46.61.140. This traffic statute addresses the safe changing of lanes (right or left or turn) and the use of a center lane, but does not mention a centerline. RCW 46.61.140(1) states:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The trial court found that that Prado’s motion to suppress was not appropriate because the vehicle actually crossed the lane line, rather than merely touching the lane line. Upon review, however, the Superior Court found that under a totality of the circumstances argument, that a brief incursion not resulting in a “safety problem” was not sufficient grounds to pull over the vehicle. The Prosecutor appealed the ruling of the Superior Court to Division I Court of Appeals. On appeal, Division I upheld the Superior Court and ruled that a vehicle crossing over the line for one second by two tire widths on an exit lane does not justify a belief that the vehicle was operated unlawfully under RCW 46.61.140(1).

In light of this background, Division I granted Huffman’s appeal to decide whether (1) State v. Prado applies and (2) whether the “as nearly as practicable” language of RCW 46.61.140 also applies to RCW 46.61.100.

The Court decided “No,” and “No.” The plain reading of the two statutes and their different objectives leads one to believe that the “nearly as practicable” qualifying language from RCW 46.61.140(1) does NOT apply to RCW 46.61.100. “Our decision in Prado is limited to its facts which involved only a violation of RCW 46.61.140, not RCW 46.61.100. Because it is undisputed that Huffman crossed the centerline, the officer was justified in stopping her to investigate a violation of RCW 46.61.100.” Based on that, the Court of Appeals vacated and reversed the trial court’s orders suppressing all evidence and dismissing the prosecution. The Court also reinstated the charges against Huffman and remanded this matter back to the district court for trial.

My opinion? The Huffman opinion is an attempt to limit the scope and applicability of Prado’s reasoning to RCW 46.61.140. Ever since Prado was decided 7 years ago, the Prosecutors and Judges in district courts have rallied against it. Prado took too much discretionary power out of the hands of police officers who follow and pull over motorists suspected of DUI. Here, the Court of Appeals “stopped the insanity” of Prado and limit its reasoning to violations of RCW 46.61.140 only.

Unfortunately, a pendular swing in one direction often gives momentum to a pendular swing in the opposite direction. More specifically, I fear that the reasoning of Huffman might be applicable to violations of RCW 46.61.670 Driving With Wheels Off Roadway. The statute says the following:

It shall be unlawful to operate or drive any vehicle or combination of vehicles over or along any pavement or gravel or crushed rock surface on a public highway with one wheel or all of the wheels off the roadway thereof, except as permitted by RCW 46.61.428 or for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement, gravel or crushed rock surface thereof.

Therefore – and worst-case scenario – under Huffman, a motorist who briefly/unlawfully drives on a road with one or more wheels off the roadway can be pulled over and investigated for DUI.

Is this fair?

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. Goggin: Implied Consent Warnings for Blood Test & Crawford Issues

Blood Test, Constitutional Rights, Due Process, DUI, Evidence, felony, law enforcement, police, Terry Stop, Washington Court of Appeals, Washington Supreme Court, , ,

DUI Blood Test (A Former DA Explains How To Beat It In Court)

In State v. Goggin, Division II of the Court of Appeals held that when a blood test is collected pursuant to a search warrant, the officer is not required to advise the defendant that the defendant has a right to additional tests. Also, proof of the defendant’s prior DUI conviction from Idaho was admissible; and the admission did not violate the confrontation clause. 

Mr. Goggin was arrested for DUI. After taking Mr. Goggin in for a blood alcohol concentration (BAC) test, Officer Marcus read Mr. Goggin his implied consent warnings, including his right to have additional tests performed by a person of his own choosing. Mr. Goggin indicated he understood his rights and signed the implied consent form. Officer Marcus obtained a search warrant to draw a sample of Mr. Goggin’s blood. It was taken about three hours after his arrest and without any further independent-testing advisement. 

Mr. Goggin was charged with Felony DUI because he allegedly had four prior DUI convictions.

At trial, Goggin moved to suppress the results of the blood test based on the officer’s failure to advise him of his right to an additional test after obtaining the warrant. The trial court said, “This was a blood draw authorized by a search warrant. The trooper did not have to advise the defendant of the right to additional tests.” Later, Goggin was found guilty. He appealed.

During cross-examination, defense counsel asked Trooper Marcus whether he re-read the implied consent warnings to Mr. Goggin after obtaining the search warrant:

Defense counsel: Did you at any time advise him as part of any warnings related to the blood test that he could get an additional blood test?

Trooper Marcus: That was in part of the implied consent warnings for breath. It states in there that you have the right to additional tests administered by a qualified person of your own choosing.

Defense counsel: You have separate warnings for blood; do you not?

Trooper Marcus: We do, but implied consent warnings for blood weren’t read in this case.

Later in trial, the Prosecutor admitted evidence of the defendant’s prior DUI from Idaho. Although no witnesses actually testified that Mr. Goggin actually had a prior DUI from Idaho, the prosecutor successfully admitted into evidence the Judgment and Sentence conviction data from the Idaho court. Mr. Goggin tried dismissing the case based on the State’s failure to produce a witness from Idaho who could provide evidence that he had been arrested in Idaho. The court denied the motion, finding sufficient circumstantial evidence to go to the jury. The jury found Mr. Goggin guilty of felony OUI. He appealed.

The Court of Appeals held that the arresting officer was not required to advise Mr. Goggin of the right to additional tests because the blood draw was authorized by a search warrant, not the implied consent statute. The Court reasoned that City of Seattle v. Robert St. John, and  RCW 46:20.308(1) allows officers to “obtain a search warrant for blood alcohol tests regardless of the implied consent statute.”

In St. John, the motorcyclist refused to take the voluntary test; but, the evidence that the motorcyclist was driving under the influence constituted sufficient probable cause to justify a warrant. Similarly here, the search warrant and subsequent blood alcohol test were the result of evidence showing Mr. Goggin was driving under the influence. Thus, the State was not required to re-advise Mr. Goggin of his right to additional tests after issuance of the search warrant.

The Court also held that Goggin’s constitutional right to confront a witness under Crawford v. Washington were not violated when the State failed to produce a witness who could testify about Goggin’s prior DUI from Idaho. Here, the State met its burden of proving Mr. Goggin was the same Joseph Goggin convicted of the 2009 DUI in Idaho by submitting Mr. Goggin’s 2007 to 2011 Washington State Identification card.

his photographic identification card included Mr. Goggin’s height and weight, hair and eye color, and his address. This information matched the identifying information in the 2009 Idaho judgment and sentence. The identification card was issued in 2007 and was valid until 2011; thus, it corresponded with the date of the Idaho conviction. Accordingly, the State provided sufficient evidence of this fourth DUI to support the conviction for felony DUI.

Also, Mr. Goggin’s Idaho judgment and sentence was inherently trustworthy. It was not created in anticipation of litigation or to prove a fact at trial; therefore, it was not necessary to cross-examine the clerk who certified the document. A certified record not prepared for use in a criminal proceeding but created for the administration of an entity’s affairs is not testimonial evidence under Crawford v. Washington. Accordingly, the admission of the Idaho judgment and sentence did not violate Mr. Goggin’s confrontation rights.

The Court of Appeals upheld Mr. Goggin’s conviction.

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

State v. Witherrite: Ferrier Warnings Do Not Apply to Car Searches

Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, Knock & Talk, law enforcement, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Unreasonable Search and Seizure - Passengers, Tire Chalking, Warrantless Searches

Interesting. In State v. Witherrite, the Court of Appeals decided that law enforcement officers need not give Ferrier warnings for car searches because an automobile should not be treated in the same manner as a home.

A deputy sheriff stopped Ms. Witherrite for a traffic violation and had her perform field sobriety tests. The deputy then received permission to search Ms. Witherrite’s car after advising her that at any time she could stop or limit the scope of the search. The deputy did not tell her that she had the right to refuse consent.

The vehicle search turned up marijuana, methamphetamine, and drug paraphernalia. The prosecutor ultimately charged Drug Offenses for each of those items. She moved to suppress the evidence, arguing that her consent was invalid due to the absence of the warnings required by State v. Ferrier, 136 Wn.2d 103,960 P.2d 927 (1998). The trial court disagreed, concluding that Ferrier did not extend to vehicles and that Ms. Witherrite had consented to the search. The court found her guilty as charged. Ms. Witherrite timely appealed.

The issuel presented on appeal was whether the Court would extend Ferrier warnings to vehicle searches.

Some background on Ferrier is necessary. In Ferrier, the Washington Supreme Court faced a situation where officers wanted to get inside a house to see if they could smell growing marijuana which they suspected was present on the basis of an unsupported tip. The officers did not tell the occupant that she had the ability to refuse consent. After being invited into the home, the officers asked for consent to search the residence. A detective explained that this “knock and talk” procedure was used in order to avoid seeking a search warrant. The defendant consented to the search and was convicted of the charges.

The Washington Supreme Court reversed the conviction, ruling that because the woman had a heightened right of privacy in her home. Under article I, section 7 of the WA Constitution, officers could not enter a home to seek voluntary consent to search the dwelling without first informing her that she did not need to consent to the entry. The court’s analysis repeatedly emphasized the heightened protection given the home under our constitution. The court then adopted the following rule:

When police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.

Despite the above rule, the WA Court of Appeals in this case decided Ferrier warnings are NOT applicable outside of the home because the Washington Supreme Court has long distinguished houses from vehicles in the search and seizure context.

One particularly instructive case the court examined was State v. Vrieling, 144 Wn.2d 489,28 P.3d 762 (2000). There, a deputy sheriff stopped a motor home and arrested the driver, Ms. Vrieling. A search of the motor home was conducted incident to the arrest. The question before the court was whether the then-existing vehicle search doctrine applied to the search of the motor home, which is essentially a house-like vehicle. The court ultimately concluded that when a motor home is used as a vehicle, the vehicle search doctrine applied and apparently, Ferrier warnings do not.

The treatment of the home as most deserving of heightened protection under the WA constitution led the court to conclude that Ferrier warnings need not be given prior to obtaining consent to search a vehicle.

My opinion? Sad as it seems, this opinion makes sense. There certainly are differences between a car and a home. Simply put, homes have more privacy protections than cars.

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. Quaale: WA Supreme Court Upholds WA Court of Appeals & Grants Mistrial Due To Trooper’s Opinion Testimony

Constitutional Rights, Drug Recognition Expert, Due Process, DUI, Evidence, Jury Trial, law enforcement, misdemeanor, police, Terry Stop, Uncategorized, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Lay Witnesses and Opinion Testimony: Admissible?

Excellent opinion from the WA Supreme Court. In State v. Quaale, the WA Supreme Court decided that a Washington State Trooper’s opinion testimony regarding the defendant’s sobriety violated the defendant’s rights at trial.

Trooper Stone pulled the defendant Ryan Quaale over for Eluding and DUI. Trooper Stone then performed the Horizontal Gaze Nystagmus Test (HGN test) on Quaale.

Some explanation of the HGN test is necessary. The HGN test is a routinely used field sobriety test in which the administrator tells the subject to follow a pen or fingertip with his or her eyes as the administrator moves the stimulus from side to side. After consuming alcohol, a person will have difficulty smoothly following the stimulus; the person’s eyes will jerk or bounce as they move from side to side.

For those who don’t know, “Nystagmus” is this very involuntary oscillation of the eyeballs – the jerking – which results from the body’s attempt to maintain orientation and balance. HGN is the inability of the eyes to maintain visual fixation as they turn from side to side or move from center focus to the point of maximum deviation at the side.

Here, Trooper Stone testified that in his opinion, the HGN test is very important to determining impairment because, unlike the walk the line test, which a person can practice, the HGN test measures an involuntary reflex. Trooper Stone did not perform any other sobriety tests on Quaale in the field.

During the HGN test, Trooper Stone observed Quaale’s eyes bounce and have difficulty tracking the stimulus. Trooper Stone placed Quaale under arrest for DUI, Reckless Driving, and Attempting to Elude. At the station, Trooper Stone informed Quaale of the implied consent warnings for a breath test. Quaale refused to take the test. Quaale was charged with Attempting to Elude a police vehicle and with Felony DUI. The DUI was charged as a felony because Quaale had been previously convicted of Vehicular Homicide While Under the Influence. RCW 46.61.502(6)(b)(i).

Quaale was tried twice. At the first trial, the jury convicted him of attempting to elude but could not agree on a verdict for the DUI charge. During a second trial on the DUI charge, the State concluded its direct examination of Trooper Stone with the following questions:

Q. In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not Mr. Quaale’s ability to operate a motor vehicle was impaired? [Defendant’s objection that the question goes to the ultimate issue is overruled]
Q …. Did you form an opinion?
A. Absolutely. There was no doubt he was impaired.

The WA Supremes reasoned that Trooper Stone’s testimony that he had “no doubt” the defendant was impaired was an improper opinion on the defendant’s guilt and therefore inadmissible. Trooper Stone based his opinion solely on a HGN test, which can indicate physical signs consistent with alcohol consumption. The test, however, cannot establish impairment by itself, and testimony to the contrary violates the limitations imposed by the Supreme Court’s decision in State v. Baity.

An explanation of State v. Baity is necessary. In Baity, the WA Supreme Court considered whether drug recognition protocol employed by police officers to detect behavior associated with certain drugs constituted novel scientific evidence generally accepted in the scientific community, satisfying the Frye test for admissibility of expert testimony.  Police officers trained to use this protocol are often referred to as Drug Recognition Experts (DREs).

DREs use a 12-step procedure to classify behavioral patterns associated with seven categories of drugs. Officers employ the HGN test as one ofthe 12 steps. In Baity, the Court analyzed whether the HGN test satisfied Frye when used for drug detection. The Court held that it did. It reasoned that the underlying scientific basis of the test-an intoxicated person will exhibit nystagmus was undisputed. T

he Court also noted that officers perform the test in the same way whether the officer tests for alcohol or drug impairment and that the officer also looks for the same result: involuntary jerking in the driver’s eyes. Thus, the Court’s analysis of the HGN test in the DUI drug detection context, as discussed in Baity, applies equally to the DUI alcohol detection context in this case.

Although the Baity Court heard testimony on the HGN test admissible as evidence that a person was intoxicated on drugs, the Court also placed limits on that testimony because the HGN test merely shows physical signs consistent with ingestion of intoxicants. The Court said that an officer may not testify in a manner that casts an “aura of scientific certainty to the testimony.”

The officer also cannot predict the specific level of  drugs present in a suspect.  Furthermore, the Baity court held that a DRE officer, properly qualified, could express an opinion that a suspect’s behavior and physical attributes are consistent or inconsistent with those behaviors and physical signs associated with certain categories of drugs.

With that background, the Quaale Court reasoned that the Trooper’s testimony that Quaale was “impaired” parroted the legal standard contained in the jury instruction definition for “under the influence.” The word “impair” means to “diminish in quantity, value, excellence, or strength.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1131 (2002).

Thus, the trooper concluded that alcohol diminished Quaale in such an appreciable degree that the HGN test could detect Quaale’s impairment. Because the Trooper’s inadmissible testimony went to the ultimate factual issue-the core issue of Quaale’s impairment to drive-the testimony amounted to an improper opinion on guilt.

With that, the WA Supremes affirmed the Court of Appeals, reversed the judgment and sentence, and remanded Mr. Quaale’s case for a new trial.

Great decision.

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

State v. Gunderson: Court Decides Prior “Bad Acts” of Domestic Violence Are Inadmissible

911 Call, Assault, Domestic Violence, Evidence, Jury Trial, law enforcement, police, Prior Bad Acts, Washington Court of Appeals, , ,

Prior Bad Acts of DV | Law offices of Alexander Ransom

Good opinion. In State v. Gunderson, the Court of Appeals decided a trial judge improperly allowed evidence of the defendant’s “prior bad acts” of Domestic Violence under Evidence Rule (ER) 404(b) at the defendant’s jury trial.

Here, the State charged defendant Daniel Scott Gunderson with Domestic Violence Felony Violation of a Court Order for a September 2010 altercation between himself and Christina Moore, his ex-girlfriend. At trial, Ms. Moore testified that no assault occurred. Although she made no prior statements about the incident, let alone an inconsistent statement, the State sought to introduce evidence of a 911 Call to police and also Gunderson’s prior domestic violence against Ms. Moore to impeach her credibility and show that she was a “recanting” domestic violence victim who was unduly influenced by the defendant.

The trial judge admitted this evidence over Gunderson’s ER 404(b) objection. Gunderson argued that the trial court should have excluded evidence of his prior bad acts under ER 404(b).

Some background is necessary. Under ER 404(b), evidence of a defendant’s “Prior Bad Acts” is inadmissible for the purpose of proving a person’s character and showing that the person acted in conformity with that character. The same evidence may, however, be admissible for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.

For evidence of prior bad acts to be admissible, a trial judge must ( 1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Here, the Court of Appeals reasoned that the probative value of the prior DV evidence was outweighed by its significant prejudicial effect. It stated the following:

“Much like in cases involving sexual crimes, courts must be careful and methodical in weighing the probative value against the prejudicial effect of prior acts in domestic violence cases because the risk of unfair prejudice is very high. To guard against this heightened prejudicial effect, we confine the admissibility of prior acts of domestic violence to cases where the State has established their overriding probative value, such as to explain a witness’s otherwise inexplicable recantation or conflicting account of events. Otherwise, the jury may well put too great a weight on a past conviction and use the evidence for an improper purpose.”

The Court of Appeals further reasoned that the trial court’s error was not harmless, and that it is reasonably probable that the admission of the two domestic violence convictions materially affected the outcome of the trial. Consequently, and given the above analysis the Court of Appeals revered the defendant’s conviction and remanded the case to a new trial.

My opinion? This decision was very reasonable, even-handed opinion which was effectively based on the law. The logic makes sense. Because the victim did not make conflicting statements and did not recant and the State did not articulate some other compelling justification, the probative value of this evidence is limited in comparison to its significant prejudicial effect. Not only was it manifestly unreasonable for the trial court to admit this evidence, it was also reasonably probable that the jury would have reached a different outcome. 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.

Washington State Patrol Upgrades its DUI Breath-Test Machines

Blood Test, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, Search and Seizure, Terry Stop, Washington State Patrol, , ,

Measurement of the ethanol level with the Alcotest 9510 (Dräger,... | Download Scientific Diagram

The Washington State Patrol is replacing its old breath-test machines (BAC Machines) with sleek, fast, new $9,500 devices that are used to test drivers arrested on suspicion of driving under the influence of alcohol.

While both BAC machines can measure the alcohol in a person’s system by analyzing a breath sample, the much smaller and sleeker replacement features a touch screen and Microsoft Windows software and can process information faster.

The State Patrol will place 83 of the new Dräger Alcotest 9510 machines in police and sheriff’s stations, jails and State Patrol divisions in northeast and southeast Washington before enough are available to use statewide. The machines will be used to test drivers arrested on suspicion of driving under the influence of alcohol.

Whatcom County, Skagit County, Island County and San Juan County’s present BAC machines shall be replaced by the newer models.

Like the old devices, the new one measures alcohol in the lungs by analyzing exhaled breath. However, the new machines utilize a dry gas standard instead of a liquid solution to verify that the instrument is working properly. For years, liquid solutions have had to be mixed locally by scientists, monitored for temperature, and checked regularly by technicians. The Dräger’s dry gas contains a known concentration of alcohol, allowing the instrument to verify that a suspect’s breath alcohol is being measured accurately and reliably, the State Patrol says.

Only troopers, sheriff’s deputies and police officers certified in the Alcotest will be allowed to use the machines.

My opinion? Competent defense attorneys should investigate whether the police officers who arrest our clients for DUI and later operate these machines on our clients are, in fact, certified to operate these machines. If they’re not, then perhaps the BAC result can be suppressed.

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

WA Attorney General Says Police Do NOT Need Consent to Record Citizen Activities With Body Cameras

Bellingham, Body camera, Evidence, felony, law enforcement, police, Privacy, Search and Seizure, , ,

Axon rolls out police body cameras with live-streaming capability - GeekWire

Bad decision.

Conversations between law enforcement and members of the public may be recorded on police body cameras without citizen consent, according to an opinion issued today by Washington State Attorney General’s Office. Here’s the opinion is linked below, as well as news articles describing the recent decision:

The AG’s opinion said conversations between law enforcement and the public are generally considered public, even if they take place inside a private residence. Washington law requires two-party consent to record private conversations, but that standard does NOT apply to public ones.

Legal precedent is less clear about an officer recording a conversation between two members of the public, since no case law addresses the subject directly. But the AGO said the Washington State Supreme Court has “strongly indicated” conversations between two people are not private when they know a police officer is present.

Recently, Bellingham Police officers are being outfitted with body cameras, which would record all official interactions with citizens, even inside private residences.

The main issues of the AG’s opinion are stated below:

  1. The Washington Privacy Act, RCW 9.73, does not require the consent of a law enforcement officer to use body cameras attached to police uniforms. A local collective bargaining agreement, however, might limit or prohibit such use.
  2. Conversations between law enforcement officers and members of the public are not generally considered private for purposes of the Privacy Act.
  3. As a general matter, the Privacy Act does not require a law enforcement officer to cease recording a conversation at the request of a citizen, because such conversations are not private to begin with.
  4. In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Laws relating to the retention and disclosure of public records, including records retention schedules, would govern retention and disclosure of recordings.
  5. RCW 9.73.090 does not limit the use of body cameras to the use of such cameras in conjunction with vehicle-mounted cameras.   

My opinion? I was on board with the body cameras until the AG’s Office basically gave police officers permission to circumvent the privacy rights of citizens. Look, the average citizen on the street does NOT assert their Constitutional right to refuse to speak to police officers. Nor does the average citizen refuse to grant an officer’s request to search the citizen’s home or car.

Police can be very persuasive in exercising their authority. So this AG opinion said conversations between law enforcement and the public are generally considered public? Even if the conversations are NOT consensual and take place inside a private residence? Bad decision.

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

Bellingham Police Start Using Body Cameras

Bellingham, Body camera, Evidence, law enforcement, police, Search and Seizure, , ,

Three ways police can use body cameras to build community trust | Urban Institute

Finally, a step in the right direction.

In an effort to reduce use-of-force complaints, Bellingham Police officers are now wearing Body-Worn Cameras to record audio and video of their interactions with the public. The department is among the first to use the new equipment that now allows citizens to see crimes from an officer’s perspective.

Officers are wearing two cameras — one on their chests and another mounted on collars, glasses or hats.

The Bellingham Police Department has provided officers with guidelines for when they should activate the cameras. Some include traffic stops, arrests, or situations involving aggressive suspects.

Police don’t need to ask for permission to record  if they’re in public but they will tell you if the camera is on. However, if an officer is in a private residence he or she is required to get the homeowner’s permission to record.

My opinion? Excellent decision. My hat is off to the Bellingham Police for making a pro-active decision toward this effort. I strongly believe having body cameras makes EVERYONE — both cops and citizens — behave better. even better, the cameras should provide evidence of whether police misconduct happens in some cases. Very good.

My only concern is the privacy issues. Will police will secretly turn these cameras on when searching people’s houses? And if so, can the police attempt to use the surveillance video captured by the cameras as evidence of possession of contraband/weapons? As long as police are informing citizens that conversations and searches are being recorded (and as long as the police get the citizen’s consent to search ON CAMERA) then the searches are probably not intrusive and/or violations of a citizen’s constitutional rights. We’ll see.

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.