Category Archives: law enforcement

Make New Crack Law Retroactive

Drug Offenses, felony, law enforcement, Legislation, police, Race & Law, , ,

Obama signs bill reducing cocaine sentencing gap - CNN.com

Good stuff.  Very informative article regarding Obama’s move to lighten up on federal crack cocaine laws,

Last month, President Obama signed landmark legislation title the Fair Sentencing Act. The legislation broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes ­involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams.

Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years.

The article’s authors also argue Congress should finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers’ new and enlightened perspectives about punishment for those types of offenses.

My opinion?  I totally agree with the article’s authors.  The so-called harmful effects of crack cocaine was largely demonized as the exact reason why the “War on Drugs” became so popular.  And here we are, 2-3 decades later, with overcrowded jails and the “harmful effects of crack cocaine” proven largely untrue.  Yet the war rages on, stupidly.  Congress needs to abandon the archaic drug laws relating to crack cocaine.

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

Local Roundabouts Show No Spike in Crashes/Injuries, BUT . . .

Bellingham Defense Attorney, Drug Offenses, DUI, law enforcement, misdemeanor, police, Probable Cause, Search and Seizure, Terry Stop, Whatcom County Criminal Defense, , ,
Ring Around “Rosy” – The “Magic Circle” Debacle at Wilshire and Western | Paradise Leased
Early data from the state Department of Transportation (DOT) shows there hasn’t been a spike in crashes since the new roundabouts in Whatcom County were constructed.  Of the accidents that have occurred, none have resulted in injuries, unlike many of the crashes before when traffic signals controlled some of the intersections.

My opinion?  Yes, the data appears good.  However, I’m concerned that police use roundabouts to conduct unlawful/pretextual pullovers for DUI.  “Pretext” is the arrest of a person for a minor crime (as a traffic violation) for the real purpose of getting an opportunity to investigate (as through a search) the person’s possible involvement in a more serious crime for which there are no lawful grounds to make an arrest.  Pretextual stops are unlawful.

Navigating a roundabout is confusing for inexperienced drivers.  The four most common mistakes people make are (1) not yielding to traffic already in the roundabout, (2) not using their blinkers, (3) changing lanes in the roundabout, which is not allowed; and (4) treating the yield signs entering roundabouts as stop signs.

Any one of these common mistakes can cause a police officer to initiate an unlawful pretextual pullover.

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.

Study Shows How the Innocent Confess to Crimes

Constitutional Rights, Interrogation, law enforcement, police, Police Misconduct, Pretrial Investigations, Privacy, Prosecutorial Misconduct, Race & Law, Search and Seizure, , ,

Criminal Confessions | 7plus

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article in the Stanford Law Review written by Professor Garrett of the Virginia School of Law draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.   Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

My opinion?  To defense lawyers, the new research is eye opening. In the past, if somebody confessed, that was the end.  You couldn’t imagine going forward.  Although the confession is hearsay, which is generally an out-of-court statement made to prove the truth of the matter asserted, there are over 20 exceptions to the hearsay rule.  Bottom line, a judge typically allows juries to hear confessions.

This new research calls upon defense attorneys to investigate the conditions under which the confession took place.  Was the confession recorded?  How long was it?  Was the defendant rested?  Under the influence?  Did the defendant request an attorney?  Important questions, all of them . . .

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

Whatcom County Cops Bust 63 Drivers In Latest DUI Campaign

Bellingham, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Search and Seizure, Terry Stop, Washington State Patrol, , ,

Can You Get a DUI After You are Home? | WK

Pre-holidays, no less.

Whatcom County law enforcement agencies arrested 63 people for alleged DUI during the latest enforcement campaign, which started Aug. 12 and ended Sept. 6.

Statewide, officers from 176 agencies arrested 2,672 drivers in the “Drive Hammered, Get Nailed” campaign, according to the Washington Traffic Safety Commission.

Officers, deputies and troopers from the Whatcom County Sheriff’s Office, the Washington State Patrol and the Bellingham, Ferndale and Western Washington University police departments participated in the campaign.

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. Adams: The WA Supremes On a Hot Roll With Yet ANOTHER Decision re. Illegal Car Searches

Constitutional Rights, Drug Offenses, Exigent Circumstances, felony, Jail, law enforcement, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington State Patrol, Washington Supreme Court, , ,

Can the Police Legitimately Search My Vehicle Without a Warrant? - FindLaw

“1-2-3!”

You hear this shouted in fight gyms and boxing matches around the world.  It’s a quick, concise statement of one of the deadliest 3-punch combinations in the sport.   It’s a left jab, followed by a right cross and ending with a left hook (consider opposite hands if you’re southpaw).  The jab opens the opponent’s defense and establishes punching range.  The right cross – your power hand – does damage.  The coup de gras left hook should result in more major pain, a knockdown or knockout; especially if ANY of the punches land flush on the chin or temple.  At any rate, somebody is getting hurt.  Or put to sleep.

For the month of August, the WA Supremes issued a 1-2-3 combination with State v. Tibbles, State v. Afana and now State v. Adams; all three decisions upholding the U.S. Supreme Court’s Arizona v. Gant which held that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

Lat’s talk about State v. Adams.  On May 24, 2006, Deputy Volpe observed Coryell Adams sitting in a parked car outside a casino.  Volpe checked the license plate number and learned that Adams had an outstanding arrest warrant for driving with a revoked license.

Volpe followed Adams as he drove to a Taco Bell parking lot.  Volpe drove onto the same lot, activated her emergency lights, and parked about eight feet behind Adams’ car.  As she stepped out of her patrol car, Adams stepped out from his car, stood near the driver’s side door and began yelling at Volpe, challenging the stop as racial profiling.  After Volpe repeatedly ordered Adams back into his car, Adams “took 4-5 steps away from the car” and stepped into an adjacent parking stall where he continued to yell and wave his arms.  At Volpe’s request, another deputy arrived and Adams calmed down.  He was then placed under arrest.

After Adams failed to identify himself, Volpe frisked Adams and removed his keys and his wallet, which contained documents identifying him as the registered owner of the vehicle.  The other deputy unlocked Adams’ car. After Volpe placed Adams in the back of her patrol car and read him his rights, she searched his vehicle and found a small black bag containing cocaine in the center console.  He was charged with Possession of Cocaine.  The case wound its way into the WA Supreme Court.  During that time, the U.S. Supremes decided Arizona v. Gant, which was alluded to earlier.

Similar to State v. Afana, the State argued the officer acted in “good faith” when arresting Adams.  However, the WA Supremes made short work of the case:

“Our recent decision in Afana resolves this case.  In Afana we rejected the State’s argument that “good faith” reliance on pre-Gant case law constitutes an exception to the exclusionary rule under article I, section 7 of the Washington State Constitution.  We explained the distinction between an officer’s “good faith” reliance on statutes that were subsequently declared unconstitutional to establish probable cause to arrest . . . [B]ecause the State concedes that Gant applies to the search in this case, and because we have declined to recognize a “good faith” exception based on pre-Gant case law in Afana, we reverse the conviction in this case.”

My opinion?  Criminal defense attorneys have reason to raise a glass and toast the WA Supremes.  These decisions are a fitting end to the summer of 2010.  Take notice, prosecutors: Gant and its Washington progeny are here to stay.  These cases won’t be skirted by “exigent circumstances.”  They won’t be distinguished by “good faith.”  Hurray to a new millennium in cases involving car searches and seizures. 🙂

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. Afana: ANOTHER Awesome Decision re. Illegal Car Searches

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, DUI, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, United States Supreme Court, Washington Supreme Court, , ,

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

In State v. Afana, the WA Supreme Court held the warrantless search of a vehicle incident to passenger arrest was unlawful, and there is no “good faith” exception under the Washington Constitution.

BACKGROUND FACTS

At 3:40 a.m., Deputy Miller noticed a car which was legally parked on a city street in Spokane County.  He became suspicious, parked his cruiser behind the vehicle, shone his spotlight on it, and made contact.  Two people were inside.  The driver said they were watching a movie on his portable DVD player.  Deputy Miller ran warrant checks on both individuals.  He discovered a warrant existed for the passenger, Ms. Bergeron, for the crime of Criminal Trespass.  He arrests her.

Deputy Miller searched the car and found a black cloth bag behind the driver’s seat.  The bag contained a crystalline substance which looked like methamphetamine.  He also found a glass marijuana pipe, needles, and plastic scales.  Deputy Miller arrested Mr. Alfana, the driver, on Drug Charges.

The case wound up for review before the WA Supreme Court.  in the meantime, the U.S. Supreme Court issued its decision in Arizona v. Gant, 129 S. Ct. 1710 (2009).  There, the Court said that police may search a vehicle incident to arrest “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”

The Court reasoned that, pursuant to Gant, nothing justified the search that happened after arrest.  Although the warrant for Bergeron’s arrest gave Deputy Miller a basis to arrest her, he had no reason to believe that the vehicle she occupied contained evidence of her underlying crime, namely, Criminal Trespass.  The deputy also lacked reason to believe that she posed a safety risk because she was already in custody in the backseat of the patrol vehicle.

Furthermore, the fact that the driver, Afana, was unsecured at the time of the search does not justify the search.  This is so because he was not under arrest at the time the search was conducted, and Gant held that “police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search.”  Here, the only arrestee was Bergeron; who was already in the backseat of the police cruiser.

The Court addressed the State’s “Good Faith” exception to warrantless searches.  Historically, this exception allows an otherwise unconstitutional search or seizure if the police officer believes the search was constitutional/reasonable at the time.  Here, the court rejected the State’s “Good Faith” argument because there was no probable cause to conduct the illegal search in the first place.  The evidence was suppressed.

My opinion?  August is a BIG month for handing down post Gant-related decisions (please refer to my blog on State v. Tibbles).  I’m really impressed with how the WA Supremes are handling Gant.  They aren’t chipping away at Gant with BS opinions.  They are, in fact, honoring Gant.  Afana was a unanimous decision, with only one Justice dissenting.  Horray!  🙂

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. Maddox: Great Decision on Unlawful Vehicle Searches

Constitutional Rights, Drug Offenses, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Terry Stop, Washington State Patrol, Washington Supreme Court, , ,

Vehicle Inventory and Community Caretaker - Daigle Law Group

In State v. Maddox, the Ninth Circuit Court of Appeals Evidence found during an inventory search was suppressed, as no statute specifically authorized impounding the vehicle for Reckless driving or DWLS 3, the vehicle was not impeding traffic, it was not abandoned, and the driver offered to have his friend pick up the vehicle.

Officer Bonney pulled Neal Maddox over for driving suspiciously.  Upon contact, Officer Bonney noticed the vehicle’s tags were expired and Maddox’s license was suspended.  Officer Bonney placed Maddox under arrest, handcuffed him, and escorted him to the patrol car.  He search Maddox and found $358 cash.  Maddox posed no threat to officer safety and there was no danger of evidence destruction.

Nevertheless, Officer Bonney returned to Maddox’s vehicle, reached inside, and retrieved a key chain.  Hanging on the key chain was a metal vial with a screw top.  Officer opened the vial’s top and found methamphetamine.  He searched the vehicle, found a computer case, and discovered a handgun and more methamphetamine.

The court reasoned the officer’s search of Maddox’s keychain was unlawful.  Since Maddox was handcuffed in the backseat of the car, there was no possibility of Maddox concealing or destroying the key chain and the items contained therein.  There was also no sighting of weapons or threats to use one.

The court also reasoned the vehicle impoundment was unlawful.  The police were not performing community caretaking, the vehicle was not abandoned, impeding traffic, or threatening public safety or convenience.  Also, because Maddox offered to have his friend move the vehicle, the officer did not rightfully consider any alternatives before impounding it.  Consequently, The officer’s impoundment of the vehicle did not qualify as a valid inventory search and violated the Fourth Amendment.

My opinion?  Obviously, I’m pleased.  Some may argue the court wrongfully decided the case because RCW 46.55.113(1)  specifically authorizes an impound when a driver is arrested for Driving While License Suspended (DWLS).  Nevertheless, there were larger issues at stake transcending a mere DWLS.  The officer’s unlawful search of the keychain itself moved this issue beyond statutory obligations imposed on DWLS.

Good 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. Tibbles: “Exigent Circumstances” for Warrantless Search = Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Exigent Circumstances, felony, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Supreme Court, , ,

Haddonfield Criminal Defense Lawyers | Illegal Search and Seizure

In State v. Tibbles, the WA Supreme Court held the search  of a defendant was not justified by exigent circumstances and the marijuana/paraphernalia evidence obtained as a result of  the search should have been suppressed.

Micah Tibbles was pulled over following a traffic stop.  During the stop, Trooper Norman Larsen detected a strong odor of marijuana coming from Tibbles’s car.  Though he did not arrest Tibbles or seek a warrant, he searched the car and found the contraband.  Trooper Larsen and the prosecutors argued that although they lacked a search warrant, “exigent circumstances” justified the search nonetheless.  Tibbles was convicted of for possession of marijuana and drug paraphernalia.  The case wound up in the WA Supreme Court.

The Court reasoned the Trooper had probable cause to arrest Tibbles based on the odor of marijuana alone under the Plain View Doctrine.   However, the existence of probable cause, standing alone, does not justify a warrantless search. The Court also reasoned that because Trooper Larsen did not arrest Tibbles, and did not have a warrant when he searched Tibbles’s car, the search must be justified by one of our recognized warrant exceptions; such as “exigent circumstances.”

Here’s the law on exigent circumstances: basically, the exigent circumstances exception to the warrant requirement applies where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence.

Under State v. Tibbles, there are five circumstances types of exigent circumstances: (1) hot pursuit; (2) fleeing suspect; (3) danger to arresting officer or to the public; (4) mobility of the vehicle; and (5) mobility or destruction of the evidence.”  A court must look to the totality of the circumstances in determining whether exigent circumstances exist.

Here, the WA Supremes decided the State failed to show that exigent circumstances justified the warrantless search of Tibbles’s car.  Tibbles was outside the vehicle when Trooper Larsen searched it and the State has not established that the destruction of evidence was imminent.  Additionally, the State failed to establish that obtaining a warrant was otherwise impracticable.

“For example, we do not know whether Larsen could have used a cell phone or radio to procure a telephonic warrant or whether he could have called backup to secure the scene while Larsen went to procure a warrant,” said Justice Debra Stephens of WA Supremes.

Additionally, regarding the safety concerns, the facts do not establish that Trooper Larsen felt he or anyone else was in danger as a result of Tibbles’s actions.  Tibbles was not stopped on suspicion of impaired driving, but rather for a defective taillight.   Tibbles was alone, was compliant with the  trooper’s requests, and moreover, was released rather than arrested and allowed to drive away even after Trooper  Larsen searched the car and seized the marijuana and drug paraphernalia.  For these reasons, the WA Supremes reversed the WA Court of Appeals which upheld Tibbles conviction.

My opinion?  BEAUTIFUL.  The State’s “exigent circumstances” arguments were totally baseless.  Let’s boil it down: exigent circumstances should be found only where obtaining a warrant is not practical because the delay inherent in securing a warrant would compromise officer safety, facilitate escape, or permit the destruction of evidence.  If these situations do not exist, then neither does exigent circumstances.  PERIOD.

Well done, WA Supremes.  Thank you.

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.

Debate Continues Over Putting New Jail Outside of Bellingham

Bellingham, Bellingham Defense Attorney, Jail, law enforcement, Whatcom County Criminal Defense, , ,

Australia's largest prison will be big business on the New South Wales north coast - ABC News

The debate continues over the location of the new jail.

The county has been working since 2003 to choose the site of a new jail as the current facility has become dilapidated and overcrowded.  The downtown jail was built to handle 147 inmates.  Now, due to double bunking, between 250 and 300 inmates are crammed inside. The new sites being considered are outside of city limits near Bellingham International Airport.

Voters in 2004 approved a sales tax increase to start saving up for a new facility.  Several years ago, costs were estimated to be between $55 million and $60 million.  Those estimates are now up to potentially $144.4 million if construction were to begin in 2015.
My opinion?  Do something.  We’ve waited too long.  Although I’d rather have a downtown jail for ease of access to incarcerated clients (I work downtown), any solution at this point is preferable.  The present jail is disgusting.  Dirty, smelly, old and dangerous in the face of an earthquake.
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.

Domestic Violence Brutality Increasing in Whatcom County

Assault, Bellingham, Bellingham Defense Attorney, Domestic Violence, felony, Jail, law enforcement, misdemeanor, police, Studies, , ,

Domestic violence is now out in the open but the figures show just how endemic it is

It appears DV cases are increasing in Whatcom County. An unprecedented series of domestic-violence slayings in the last 15 months has set off alarms across the county and left community leaders scrambling to gauge the problem’s extent and root causes.
The Bellingham Police Department and the Whatcom County Sheriff’s Office handle the majority of domestic-violence assaults in the county.  Although both agencies had an overall decrease in the number of such assaults per capita reported to them since 2004,
Sheriff Bill Elfo says the severity of the crimes have, in fact, increased.
Some other interesting facts:
* Whatcom County law enforcement agencies have investigated eight deaths believed to be related to or caused by domestic violence since March 2009.
* Workers in victim-care agencies confirmed the trend of increasing violence.
* The number of women and children who stayed at least one night in the shelter’s 18 beds increased by 17 percent from 2008 to 2009, according to agency statistics.
* Calls to Womencare’s helpline increased 28 percent last year.
Why has the problem increased?  The article cites the poor economy adding to the problem and hampering criminal-justice and victim-care agencies’ ability to prevent more violence.  The economy also hampers efforts to confine abusers as the justice system, from police to jails to courts, struggles under budget cuts.  For victims trying to leave abusive relationships, which is when they’re at the highest risk, emergency shelter and long-term transitional housing are getting scarcer as demand for them increases.

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