Category Archives: law enforcement

Holiday Drinking In The U.S.

Bellingham Defense Attorney, Constitutional Rights, Distracted Driving, Domestic Violence, Drowsy Driving, Drug Offenses, DUI, felony, Jail, law enforcement, marijuana, Miranda, misdemeanor, police, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Violent Crime, Washington State Patrol, Whatcom County Criminal Defense, , ,

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.

THE NORTHEAST

New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheese heads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.

THE NORTHWEST

Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.

RELIGIOUS STATES

Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.

HOLIDAY DUI PATROLS IN WASHINGTON STATE

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Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.

SEEK COMPETENT LEGAL REPRESENTATION IF YOU FACE CRIMINAL CHARGES THIS HOLIDAY SEASON.

For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

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

Happy holidays!

-Alex Ransom, Esq.

State v. Murray: Improper Implied Consent Warnings Held Unimportant

Bellingham Defense Attorney, Drug Offenses, DUI, Evidence, Implied Consent, law enforcement, Legislation, marijuana, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Washington State Patrol, Whatcom County Criminal Defense, , ,

Image result for implied consent warnings marijuana

In State v. Murray, the WA Supreme Court held that DUI breath test results should not be suppressed even though the police officers who informed defendants did not properly inform the defendants of THC warnings. In February, I discussed Robison’s Court of Appeals decision to suppress the BAC test before the WA Supreme Court re-addressed the issue on this most recent appeal.

Late one night, a state trooper observed Robison speeding through a restaurant parking lot toward a road. The trooper had to hit his brakes to avoid a collision as Robison exited the parking lot. The trooper decided a traffic stop was in order. The trooper could smell both alcohol and cannabis coming from Robison’s car. The officer investigated Robison for DUI. Robison performed poorly on field sobriety tests and agreed to take a roadside breath test.

Based on the results, the officer arrested Robison for suspected driving under the influence (DUI) and took him to a police station. At the station, the trooper read Robison an implied consent warning from a standard form’s that did not mention the new statutory language concerning THC. The form warning did warn Robison that he was subject to having his driver’s license suspended, revoked, or denied if the test revealed he was under the influence of alcohol.

Robison argued a 3.6 motion to suppress the results of the breath test, arguing that the implied consent warning was inadequate because it did not mirror the statutory language regarding the consequences of a finding of THC in his blood. The district court commissioner concluded that the warnings accurately informed the defendant that the result of a breath test would reveal the alcohol concentration of his breath and that it would be misleading to advise or imply to the defendant that the breath test could obtain a THC reading.

Robison was found guilty. Robison appealed to the superior court, which reversed, concluding the officer had no discretion to leave out a portion of the implied consent warning. The Court of Appeals affirmed the decision to suppress, and the WA Supreme Court accepted review on the State’s appeal.

Ultimately, the Court affirmed the lower courts and upheld Robison’s conviction. A driver’s implied consent to a breath test for alcohol, and the arresting officer’s duty to warn of the potential consequences of the test, have been part of our statutory system for decades. Both the legal consequences of driving while intoxicated and the details and exactitude of the warning required by the legislature have changed during that time. For example, Initiative 502, which decriminalized the recreational use of cannabis, also amended the implied consent statute. In relevant part, the amended implied consent statute said:

“(c) If the driver submits to the test and the test is administered, the driver’s license, permit, or privilege to drive will be suspended, revoked, or denied for at least ninety days if: (i) The driver is age twenty-one or over and the test indicates either that the alcohol concentration of the driver’s breath or blood is 0.08 or more or that the THC concentration of the driver’s blood is 5.00 or more.”

Robison argued that since some of the statutory language was omitted during his DUI investigation, the tests must be suppressed.

However, the WA Supreme Court disagreed:

“We find no case, and none have been called to our attention, that require officers to read an irrelevant statutory warning to a driver suspected of DUI. Instead, as acknowledged by counsel at oral argument, it has long been the reasonable practice of arresting officers to omit warnings related to underage drinking and commercial drivers’ licenses when advising those over 21 or driving on a noncommercial license.”

The Court further reasoned that the Implied Consent warnings did not omit any relevant part of the statute, accurately expressed the relevant parts of the statute, and were not misleading. Accordingly, the warnings substantially complied with the implied consent statute and the test results were properly admitted.

With that, the WA Supreme Court reversed the Court of Appeals and reinstated Robison’s convictions.

My opinion? Bad decision. Like I said before, DUI investigations involving Implied Consent Warnings must keep up with today’s legislative amendments and other changing laws. The law is the law.

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

“Common Authority” Vehicle Searches

Bellingham Defense Attorney, Common Authority Searches, Constitutional Rights, felony, Firearm, law enforcement, Privacy, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Vanhollebeke, the WA Court of Appeals Division III decided a vehicle owner’s consent to search overrode the driver’s express objections.

On the night of November 10, 2014, Sergeant Garza pulled the truck over that was facing the wrong way on a one-way street. Sergeant Garza got out of his patrol car and approached the truck. The defendant Mr. Vanhollebeke got out of the truck and started walking toward Sergeant Garza. Sergeant Garza ordered Mr. Vanhollebeke to get back in the truck. Mr. Vanhollebeke then said he had locked himself out of the truck. This unusual behavior made Sergeant Garza suspicious.

Dispatch advised that Mr. Vanhollebeke’s license was suspended. Dispatch also advised that Mr. Vanhollebeke was not the registered owner of the truck, and that the truck belonged to a man named Bill Casteel. Sergeant Garza’s plan at this point was to cite Mr. Vanhollebeke for driving with a suspended license and then release him.

However, another police officer noticed a glass pipe with a white crystal substance on it sitting in plain view near the dashboard, which he believed was drug paraphernalia. Also, the truck’s steering column was “punched,” which indicated the truck was stolen. The officers did not release Mr. Vanhollebeke and kept him in their custody.

The officers asked for permission to search the truck. Mr. Vanhollebeke refused. Sergeant Garza contacted Mr. Casteel, the actual owner of the truck, at Casteel’s home. Mr. Casteel told Deputy Barnes that Mr. Vanhollebeke had permission to use the truck. Casteel also gave police permission to search his truck and gave Deputy Barnes a key to it.

Deputy Barnes returned directly to the scene. He used the key to open the truck and began to search it. He looked under the driver’s seat and saw a revolver. The glass pipe tested positive for methamphetamine. The officers confirmed through dispatch that Mr. Vanhollebeke had a prior felony conviction.

The State charged Mr. Vanhollebeke with first degree unlawful possession of a firearm. Mr. Vanhollebeke argued a CrR 3.6 motion to suppress the physical evidence on the grounds that he had refused to give the officers consent to search the truck and also that the stop’s length and scope were unreasonable. However, the trial court admitted the evidence and denied Mr. Vanhollebeke’s motion to suppress. The jury convicted Mr. Vanhollebeke.

Vanhollebeke appealed on the issue of whether Mr. Casteel’s consent overrode Mr. Vanhollebeke’s express objection to search.

The Court of Appeals upheld the search. It reasoned that the Fourth Amendment to the United States Constitution guarantees people the right to be free from unreasonable searches and seizures. Warrantless searches are generally illegal unless they fall within one of the exceptions to the warrant requirement. However, one exception is consent to search by a person with authority over the place or thing to be searched. This exception includes consent given by a third person, other than the defendant.

The court further reasoned that to grant valid consent, the third party must have common authority over the place or thing to be searched. The court explained that common authority does not mean that the third party has a mere property interest in the place or thing being searched. Rather, to establish lawful consent by virtue of common authority, (1) a consenting party must be able to permit the search in his own right, and (2) it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search.

The court decided Mr. Vanhollebeke’s right to use the truck was dependent on the owner’s unrevoked permission:

“Here, Mr. Vanhollebeke had the actual right to exclude all others from the truck except for Mr. Casteel. For this reason, Mr. Vanhollebeke did not have a reasonable expectation of privacy if Mr. Casteel wanted to search his own truck or allow another person to do so.”

With that, the Court concluded Mr. Casteel’s consent to search his truck overrode Mr. Vanhollebeke’s objection. Therefore, the search did not violate Mr. Vanhollebeke’s reasonable expectation of privacy and the trial court did not err in denying Mr. Vanhollebeke’s CrR 3.6 motion to suppress. Vanhollebeke’s conviction was affirmed.

My opinion? Common authority search issues don’t happen very often in criminal defense. But when they do, it’s imperative to hire competent criminal defense who can leverage a strong motion to suppress the evidence and/or divide the “common parties” to the search. Perhaps the greatest lesson to learn is to simply avoid transporting illegal contraband in plain view within borrowed vehicles.

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.

Author of Confidential Informants Book Exposes the Truth

Bellingham Defense Attorney, Confidential Informants, Constitutional Rights, Evidence, Informant, law enforcement, police, Pretrial Investigations, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

 

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A new book discusses how confidential informants negatively impact the criminal justice system. In “11 Days a Snitch,” author Alexandra Natapoff discusses how removing confidential informants information from investigations bolsters law enforcement authority while reducing the ability of legislatures, the press and the public “to evaluate executive actors and hold them accountable.”

Natapoff, a professor at Loyola Law School in Los Angeles, is considered one of the nation’s leading experts in the use of confidential informants. She has testified before the U.S. House Judiciary Committee in 2007 and had a hand in writing legislation in Florida known as Rachel’s Law, which was enacted in the wake of a young drug informant’s death. Natapoff discuses the negative impacts that confidential informants have had upon the justice system:

  1. CONSTITUTIONAL RIGHTS ARE VIOLATED IN FAVOR OF KEEPING AN INFORMANT SECRET.

• The Fourth Amendment protects against unlawful search and seizure. That means, generally, police need a warrant and a judge’s signature for permission to enter a house or listen in on a private conversation. A confidential informant wearing a wire, however, does not have to jump through those hoops (though some states have barred warrantless use of informants in this regard).

• The Sixth Amendment guarantees defendants the right to confront any witnesses against them. With informant witnesses, however, judges have chipped away at this right, in some cases allowing prosecutors to keep informants’ identities a secret. In 2002, for example, the Ninth Circuit Court of Appeals tried to strike a balance by allowing a confidential informant to wear a “wig-and-mustache disguise” on the stand.

• The Fourteenth Amendment guarantees defendants due process, which includes a right to know all the evidence the state has, including evidence that could discredit the state’s witnesses. For snitches, that evidence could include criminal history and any benefit (such as leniency for their own crimes or cash) they receive in exchange for cooperating with law enforcement. However, the U.S. Supreme Court ruled in 2002 that defendants are not entitled to that information before trial. Specifically, the court was concerned that revealing those details “could ‘disrupt ongoing investigations’ and expose prospective witnesses to serious harm.'”

Natapoff argues this is significant because about 95 percent of criminal cases end in plea deals. That means most defendants are pleading guilty without knowing if the evidence against them is completely legit.

2. THE WAR ON DRUGS IS DRIVING THE USE OF INFORMANTS.

In 1995, decades into the war on drugs, lawyer and journalist Mark Curriden published an in-depth look at law enforcement’s extensive use of informants by analyzing more than 1,000 federal search warrants from 1980 to 1993. In that time frame, warrants that solely relied on information from a confidential source increased by nearly 200 percent — from 24 percent to 71 percent.

Although it’s impossible to get an accurate number of informants in the U.S., a recent audit of the DEA’s CI program cited more than 18,000 active confidential sources from October 2010 to September 2015. However, that same report found that “the DEA did not appropriately track all confidential source activity.”

3. THE RISK FOR ABUSE IS HIGH.

Natapoff discusses the case of four NYPD cops, who for decades have apparently fabricated sworn statements and arrests with the help of fictitious informants. A State Supreme Court judge in Brooklyn called one of the detectives “extremely evasive,” and did not find him “to be credible.” A judge in another federal case remarked: “I believe these officers perjured themselves. In my view, there is a serious possibility that some evidence was fabricated by these officers.”

“Given the reality that informant deals are baked into the criminal justice system, we are obligated to better regulate it,” Natapoff says. “We have fallen down in that regard. We have given such broad discretion to police and prosecutors and failed to create transparency and accountability mechanisms that would give us the confidence that these deals are being made in responsible ways.”

My opinion?
Transparency is essential to a fair and equitable criminal justice system. Knowing how we handle criminal behavior and dole out punishment allows the public to hold law enforcement accountable. The use of confidential informants, however, can pervert that premise in many ways.
As a criminal defense attorney, I’ve always believed the use of confidential informants entrap many into committing crimes they would otherwise not commit. Snitches are motivated/biased actors who are not professionally trained in law enforcement and have significant criminal histories. All of these facts decrease their credibility. Kudos to Natapoff for showing the truth.

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.

Trump On Crime.

ACLU, Bellingham Defense Attorney, Constitutional Rights, Death Penalty, Due Process, Immigration, law enforcement, Legislation, marijuana, Police Misconduct, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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Like it or not, Donald Trump won.

Criminal defense attorneys serving their clients must survey the aftermath and ponder how Mr. Trump’s administration approaches issues of criminal justice. What is Trump’s stance on the “War on Drugs?” How does his stance embrace the growing legalization of marijuana among the States? How does Mr. Trump view the Fourth Amendment’s protections against unlawful searches and seizures? How does Trump view the discord between police and communities of color? Will Trump’s administration seek the immediate deportation of illegal immigrants who commit crimes? How does he feel about the death penalty? These issues – and many others – affect many defendants facing criminal charges.

If the best predictor of future behavior is past behavior, we look no further than Mr. Trump’s comments over the years; especially his comments during his campaign.

THE WAR ON DRUGS: 1990 & 2015

In 1990, Trump argued that the only way to win the War on Drugs was to legalize drugs and use the tax revenue to fund drug education programs. As he put it, “You have to take the profit away from these drug czars.” In his 2000 book,The America We Deserve, he stated that he’d never tried drugs “of any kind.”

Fast-forward 25 years, and now Trump is opposed to legalization. “I say it’s bad,” he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado’s legal weed. “Medical marijuana is another thing, but I think recreational marijuana is bad. And I feel strongly about that.” Regarding states’ rights, Trump said, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”

Source: On the Issues: Donald Trump on Drugs.

Apparently, Trump opposes recreational marijuana and endorses medical marijuana. Unfortunately, his stances can become problematic for states like Washington, Colorado and a handful of others which have already passed initiatives allowing its citizens to possess small amounts of marijuana for recreational purposes. Will Trump’s administration reverse these State initiatives? Will Trump’s administration violate federal court opinions which have slowly de-prioritized federal prosecutions of marijuana cases in states which have legalized marijuana? How will drug prosecutions and/or convictions under Trump’s administration affect citizens receiving federal benefits to include welfare, social security and financial aid?

Only time will tell.

CRIME, THE 4TH AMENDMENT AND THE RACIAL DIVIDE BETWEEN POLICE AND COMMUNITIES OF COLOR.

Trump’s recent comments at the First Presidential Debate at Hofstra University, Sept. 26, 2016, moderated by Lester Holt of NBC News gives telling insights on these issues.

Q: What should be done about crime?

TRUMP: “Stop and frisk worked very well in New York. It brought the crime rate way down. You take the gun away from criminals that shouldn’t be having it. We have gangs roaming the street. And in many cases, they’re illegal immigrants. And they have guns. And they shoot people. And we have to be very vigilant. Right now, our police, in many cases, are afraid to do anything. We have to protect our inner cities, because African-American communities are being decimated by crime.”

Q: “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”

TRUMP: “No, you’re wrong. Our new mayor refused to go forward with the case. They would have won on appeal. There are many places where it’s allowed.”

Q: “The argument is that it’s a form of racial profiling.”

TRUMP: “No, the argument is that we have to take the guns away from bad people that shouldn’t have them. You have to have stop-and-frisk.”

Some background information and “fact-checking” is necessary to understand this discussion.

Recently, in Floyd v. City of New York, U.S. District Court Judge Shira A. Scheindlin ruled that New York City police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. Apparently, there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, Judge Scheindlin found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk. Ultimately, Judge Scheindin found the NYPD’s execution of its stop and frisk policy was unconstitutional.

My opinion?  Sure, most would agree we want guns and criminals off our streets. However, if stop and frisk policies involve systematically targeting certain racial groups, then these policies are simply unlawful. Period. Given his statements during the debates, I fear Trump’s administration may create, endorse and execute criminal justice policies which ultimately violate Fourth Amendment protections against unlawful searches and seizure.

2. How do you heal the racial divide?

TRUMP: “We need law and order. If we don’t have it, we’re not going to have a country. I just got today the endorsement of the Fraternal Order of Police. We have endorsements from almost every police group, a large percentage of them in the US. We have a situation where we have our inner cities, African- Americans, Hispanics are living in he’ll because it’s so dangerous. You walk down the street, you get shot.”

3. Do you see a crisis in the US of white police officers shooting unarmed blacks?

TRUMP: “It’s a massive crisis. It’s a double crisis. I look at these things, I see them on television. And some horrible mistakes are made. But at the same time, we have to give power back to the police because crime is rampant. I believe very strongly that we need police. Cities need strong police protection. But officers’ jobs are being taken away from them. And there’s no question about it, there is turmoil in our country on both sides.”

4. Do you understand why African Americans don’t trust the police right now?

TRUMP: “Well, I can certainly see it when I see what’s going on. But at the same time, we have to give power back to the police because we have to have law and order. And you’re always going to have mistakes made. And you’re always going to have bad apples. But you can’t let that stop the fact that police have to regain control of this tremendous crime wave that’s hitting the US.”

THE SUPREME COURT

According to Politico Magazine, Trump will probably pick ultra-conservative judges to fill anticipated vacancies in the United States Supreme Court. In an article titled, “How President Trump Could Reshape the Supreme Court – and the Country,” reporter Jeffrey Rosen surmises that Trump’s lasting legacy could be his power to shape the Supreme Court.

Apparently, during the third presidential debate, Trump described the 21 judicial candidates he has identified:

“They will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Apparently, Trump’s judicial picks are pro-law enforcement on issues involving government searches and seizures. This bodes negatively for preserving Fourth Amendment protections against search and seizure.

Also, Trump vows to give more power to police to handle the racial divide between police and communities of color. My opinion? That’s similar to dousing a forest fire with gasoline. or allowing a fox to guard your henhouse. Police aren’t experts at policing themselves. What is needed are the reinforcement of police accountability policies as well as a substantial shift with the culture of today’s police departments.

Let’s be frank: the unjustified killing of citizens at the hands of police can no longer go unpunished, especially in the face of indisputable video evidence. In those cases, police must be held accountable for the crimes they commit against the citizens they are sworn to serve and protect. It’s the only way to rebuild trust between police and the communities of color.

Equally important, we need policies which increase training on de-escalation techniques and decrease police militarization models which involves the use of military equipment and tactics by law enforcement officers. This includes decreasing the use of armored personnel carriers, assault rifles, submachine guns, flashbang grenades, grenade launchers, sniper rifles, and Special Weapons and Tactics (SWAT) teams if more reasonable alternatives are possible.

THE DEATH PENALTY

Put simply, Mr. Trump as a staunch advocate of the death penalty.

“A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go.”

“I can’t believe that executing criminals doesn’t have a deterrent effect . . . Young male murderers, we are constantly told, are led astray by violent music and violent movies. Fair enough. I believe that people are affected by what they read, see, hear, and experience. Only a fool believes otherwise. So you can’t say on one hand that a kid is affected by music and movies and then turn around and say he is absolutely not affected when he turns on the evening news and sees that a criminal has gone to the chair for killing a child. Obviously, capital punishment isn’t going to deter everyone. But how can it not put the fear of death into many would-be killers?”

Source: The America We Deserve, by Donald Trump, pp. 102-104, July 2, 2000.

JAILING AND DEPORTATION OF UNDOCUMENTED IMMIGRANTS.

According to the Huffington Post, Trump vows to immediately deport or imprison up to 3 million undocumented immigrants.  Trump said he would launch what could be the largest mass deportation effort in modern history, vowing to immediately deport a number of people comparable to the record-setting figure that President Barack Obama carried out over two terms in office.

This should come as no surprise. According to a recent article from the Washington Post, Trump’s proposal calls for the deportation of undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Although Trump’s removal of undocumented immigrants at this pace is apparently limited to convicted felons, his enthusiasm for removals suggests that overall deportations will likely rise when he takes office, after declining sharply last year.

Clearly, Trump’s presidency shall affect our nation’s approach to crime and punishment. Consequently, it’s imperative to hire defense counsel who is competent handling drug charges, death penalty crimes, violent crime, racial injustice and immigration issues. Today’s defense counsel must stay abreast of today’s ever-changing political landscape.

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.

“Knock & Announce” Was Too Short.

Bellingham Defense Attorney, Constitutional Rights, Evidence, Exigent Circumstances, felony, Ineffective Assistance, Knock & Talk, law enforcement, marijuana, police, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Ortiz, the WA Court of Appeals Division III held that police violated a defendant’s rights when they forced entry into his home after waiting only 6-9 seconds of their “knock and announce” during the early morning.

In late July 2011, Wapato Police Sergeant Robert Hubbard viewed the backyard of the defendant’s property from the vantage point of a cooperative neighbor. He saw two marijuana plants. Sergeant Hubbard was granted a search warrant for the property.

on August 11, 2011, at approximately 6:4 7 a.m., Sergeant Hubbard and 11 other police officers executed the search warrant at the property. He knocked on the door three times, announced “police search warrant,” waited one to two seconds, and repeated that process twice more. Hearing nothing inside the home, the officers breached the front door and entered the home.

Upon searching the property, the officers found 41 marijuana plants in various stages of growth and other evidence of a grow operation. Mr. Ortiz was eventually charged with one count of manufacture of a controlled substance, one count of involving a minor in an unlawful controlled substance transaction, and several other counts not relevant on appeal.

At the end of trial, the jury found Mr. Ortiz guilty.

On appeal, Mr. Ortiz argued he received ineffective assistance of counsel because his defense attorney failed to challenge the execution of the search warrant for failure to comply with the knock and announce rule.

EFFECTIVE ASSISTANCE OF COUNSEL.

The Court of Appeals began by explaining that effective assistance of counsel is guaranteed by both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. First, the defendant must show he received deficient representation. Second, the defendant must show he suffered prejudice as a result of the deficient performance.

“KNOCK & ANNOUNCE” RULE.

Next, the court explained the “knock and announce” rule. The Fourth Amendment to the United States Constitution requires that a non-consensual entry by the police be preceded by an announcement of identity and purpose on the part of the officers. This is part of the constitutional requirement that search warrants be reasonably executed.

In WA State, the parallel requirement of article I, section 7 of the Washington Constitution is codified in RCW 10.31.040. It states, “To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other enclosure, if, after notice of his or her office and purpose, he or she be refused admittance.”

The Court explained that in order to comply with the “Knock & Announce” statute, the police must, prior to a non-consensual entry, announce their identity, demand admittance, announce the purpose of their demand, and be explicitly or implicitly denied admittance. The requirement of a demand for admittance and an explicit or implicit denial of admittance have been merged into a ‘waiting period,’ often linked to whether the police officers are refused admittance.

Strict compliance with the rule is required unless the State can demonstrate that one of the two exceptions to the rule applies: exigent circumstances or futility of compliance. Finally, the proper remedy for an unexcused violation is suppression of the evidence obtained by the violation.

Here, the only disputed issue was whether the police waited long enough before they broke down the door. The answer to this question depends upon the circumstances of the case.

The Court elaborated that the reasonableness of the waiting period is evaluated in light of the purposes of the rule, which are: ( 1) reduction of potential violence to both occupants and police arising from an unannounced entry, (2) prevention of unnecessary property damage, and (3) protection of an occupant’s right to privacy.

Here, the Court believed the waiting period of 6-9 seconds was unreasonable:

“In this case, due to the early hour of the search, the occupants were foreseeably asleep. Six to nine seconds was not a reasonable amount of time for them to respond to the police, and thus no denial of admittance can be inferred. Even Sergeant Hubbard admitted it would not be a surprise that sleeping occupants would be unable to respond in that amount of time. In addition, the purposes of the rule were not fulfilled due to the property damage done by battering in the door. The police did not comply with the rule.”

Although the State presented cases where the “knock and announce” rule was adhered to after police officers breached entry quickly after announcing, the Court nevertheless reasoned that in each of those cases the defendants were both present and awake. But here, the officers did not have any indication the home’s occupants were present or awake.

Because the police violated the knock and announce rule, and there is no legitimate strategic or tactical reason for failing to challenge the search, counsel was deficient for not moving to suppress the evidence. This deficiency, reasoned the court, prejudiced the defendant.

The Court concluded that Mr. Ortiz established that he was deprived of his constitutional right to effective assistance of counsel. The court reversed his convictions and remanded the case back to the trial court with directions to suppress the fruits of the illegal search.

My opinion? Excellent decision. Search and seizure issues like this are incredibly interesting. For more information on the case law surrounding these issues please review my Legal Guide titled, Search & Seizure: Basic Issues Regarding Their Search for Weapons, Drugs, Firearms and Other Contraband.

And 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.

I-873: Police Accountability

42 U.S.C. § 1983, Bellingham Defense Attorney, Body camera, Constitutional Rights, Deadly Force, I-873, law enforcement, Legislation, police, Police Misconduct, Race & Law, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , ,

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We’ve all heard it. Killings by police in the line of duty have surged in Washington and the United States over the past decade, according to a Seattle Times analysis. During that period, only one police officer has been criminally charged in state courts with the illegal use of deadly force on the job.

In fact, that case is the only one to be brought in the three decades since Washington enacted the nation’s most restrictive law on holding officers accountable for the unjustified use of deadly force.

Not This Time! and Washington For Good Policing (W4GP) are a grass-roots movements that evolved from the  killing by the Seattle Police Department of Mr. Che Andre Taylor on February 21, 2016. The campaigns  are working to collect 350,000 signatures to put Initiative 873 in front of Washington State’s legislature in January 2017.

This is the first legislative initiative of its kind in the nation that would put forth police accountability. If passed, the legislative initiative may be a model for other states.

The initiative appears to be gaining momentum. It is endorsed by the Seattle Police Department, the ACLU of Washington, numerous state senators, Seattle Mayor Ed Murray, Seattle City Attorney Pete Holmes, Kshama Sawant and Lorena Gonzalez of the Seattle City Council, Lisa Duggaard of the Public Defenders Association, Jim Cooper and Jessica Bateman of the Olympia City Council.

Also, the following newspapers and media outlets have discussed and encouraged the passage of the bill:

It’s refreshing that I-873 has such a broad range of support, especially from the Seattle Police Department. Let’s move forward with the hope that holding officers accountable for unjustified shootings increases respect for police and professionalism within police ranks. For sure, it’s step in the right direction.

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.

Recorded Arguments & Privacy.

Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Domestic Violence, Evidence, Forensics, law enforcement, Pretrial Investigations, Privacy, Self-Incrimination, Skagit County Criminal Defense, Technology, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Smith, the WA Court of Appeals Division II held that an accidentally recorded argument between the defendant and his wife was improperly admitted at trial and violated the Washington Privacy Act.

John and Sheryl were a married couple. On June 2, 2013, they were in their residence drinking. They became intoxicated and began to argue. John began to beat and strangle Sheryl, who lost consciousness due to the strangling. Sometime during the attack, John used the residence’s landline telephone to try to locate his cell phone.

Unable to do so, he was unaware that his actions activated his cell phone’s voice mail function, which started recording part of the dispute. In that recording, John is heard yelling insults at Sheryl. Sheryl responded to these statements by screaming unintelligibly or asking him to stop or leave her alone. At one point during the recording, Sheryl tells John to “Get away,” to which he responds, “No way. I will kill you.”

Shortly after the voice mail was recorded, John left the residence. Sheryl called 911 and reported that John had beaten her. A police officer with the Vancouver Police Department arrived at the residence, and Sheryl was transported to the hospital. John’s cell phone was retrieved and taken by the police. John was later arrested and charged with first degree attempted murder (domestic violence), second degree attempted murder (domestic violence), first degree assault (domestic violence), and second degree assault (domestic violence).

Before trial, John moved to suppress the cell phone voice mail recording based on RCW 9.73.030, which applies to intercepting, recording and/or the divulging of private communications under the WA Privacy Act. The trial court held a CrR 3.6 hearing and denied his motion.

At John’s bench trial, the recorded voice mail, 911 phone calls, and photographs of Sheryl’s injuries were admitted into evidence. The trial court found John guilty of second degree attempted murder and second degree assault, both with domestic violence enhancements.

John appealed on three issues: (1) whether the recorded voice mail’s contents are a conversation; (2) if the contents are a conversation, whether it was private; and (3) if a private conversation, whether it was recorded or intercepted.

For the following reasons, the Court held that John recorded a private conversation in violation of RCW 9.73.030.

1. DID A CONVERSATION TAKE PLACE?

Amidst screaming from Sheryl, the following communications took place:

John: “You think you’re bleeding?. . . . You’re the most fucked up person. Give me back the phone.”

Sheryl: “Get away.”

John: “No way. I will kill you.”

Sheryl: “I know.”

John: “Did you want to kill me? Give me back my phone.”

Sheryl: “No. Leave me alone.”

The Court reasoned that the contents of the recorded voice mail constituted a conversation. Although Sheryl’s screams alone would not constitute a conversation, these screams were responsive to statements that John was making to Sheryl and were scattered throughout the entire dispute, which contained repeated verbal exchanges between the two individuals as outlined above. Within this context, Sheryl’s screams serve as an expression of sentiments responsive to John’s yelling and thus constitute part of a conversation.

2. WAS THE CONVERSATION PRIVATE?

The Court held that the conversation was private. Here, a domestic dispute occurred between two married persons in the privacy of their home. It reasoned that the location of the conversation, the relationship between the parties, and the absence of third parties all declare the privacy of the conversation. Therefore, reasoned the Court, John had a “subjective intention and reasonable expectation that the conversation with Sheryl would be private.”

3. IF THE CONVERSATION WAS PRIVATE, WAS IT RECORDED OR INTERCEPTED?

The Court held that the WA Privacy Act was violated when John accidentally recorded a private conversation without Sheryl’s consent. It reasoned that the WA Privacy Act requires the consent of all parties to a private conversation. Further, the case law has implied that no third party is required to record a conversation. In other words, a party to a private conversation can also be the person who impermissibly records the conversation. Thus, reasoned the Court, John’s recording of this conversation can violate the privacy act, even though he accidentally made himself a party to it.

Based on the above, the Court reversed and remanded the second degree attempted murder conviction, but affirmed the second degree assault conviction.

My opinion? Although my sympathies go out to the victim, the Court’s decision was correct. Privacy is a mysterious subject matter in our ever-changing world. Cell phones and other devices allow us to record anything, any time, anywhere. The fact is, most of us don’t know even know we’re even being recorded in our daily lives. So you can imagine a scenario where accidental recordings become the subject for intense litigation.

Many clients ask me if recorded conversations between themselves and alleged victims/witnesses are admissible at trial. Clearly, the answer is “No” under the WA Privacy Act unless the participants are (1) aware that their conversation is being recorded, and (2) expressly consent to the recording. Interesting stuff. This case was a good decision upholding our privacy rights in the face of today’s technological advancements.

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.

Deadly Force Not Justified.

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Deadly Force, law enforcement, Police Misconduct, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In A.K.H. v. City of Tustin, the Ninth Circuit Court of Appeals held the government could not justify a police officer’s use of deadly force during the officer’s attempted investigatory stop of Mr. Herrera.

FACTS & PROCEDURAL HISTORY.

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera’s hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against Officer Villarreal and the City of Tustin alleging that Villarreal used excessive force against Herrera in violation of the Fourth Amendment. Villarreal moved for summary judgment based on qualified immunity, which would have effectively dismissed the lawsuit against him. However, the federal district court denied the Officer’s motion.

Officer Villarreal brought an interlocutory appeal to the Ninth Circuit Court of Appeals. He argued that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity.

THE ISSUES.

The Ninth Circuit reasoned it must ask two questions to determine whether Officer Villarreal is entitled to summary judgment based on qualified immunity. First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment? Second, if Villarreal used excessive force, did he violate a clearly established right?

THE COURT’S ANALYSIS.

Quoting Tennessee v. Garner, the Ninth Circuit reasoned that Deadly Force is permissible only if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.

Here, the Ninth Circuit found Officer Herrera used excessive force in violation of Mr. Herrera’s Fourth Amendment rights. The Court reasoned that (1) the crime at issue was a domestic dispute that had ended before the police became involved; (2) the deceased did not pose an immediate threat to the safety of the officers or others, as the officer did not believe the deceased was armed and the officer did not see a weapon; (3) although the deceased did not comply with the officer’s commands to remove his hand from his sweatshirt pocket, he did not attempt to flee; and (4) the officer escalated to deadly force approximately 1 second after issuing the command to the deceased to remove his hand from his pocket. “Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera.”

CONCLUSION.

In its conclusion, the Ninth Circuit said the following:

“It has long been clear that a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here.”

My opinion? Great decision. Straightforward, direct, constitutionally sound and accurate. I’m happy the Ninth Circuit saw this case for what it was.

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.

“Stop & Frisk” of Friends

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, law enforcement, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Flores, the WA Supreme Court  decided that police officers may seize a defendant’s companions if officers can articulate a reason based specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.
 On November 2, 2013, an anonymous source reported to the Moses Lake Police Department that Giovanni Powell pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene of the incident. Officer McCain was familiar with Powell, and was soon updated that Powell had an arrest warrant.
 Officer McCain arrived at the reported address. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have any reason to suspect Flores of criminal activity.
 McCain parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered Powell to stop. As this was occurring, other officers arrived. Mr. Flores told officer he possessed a firearm in his pants. It was removed and secured. The State charged Flores with Unlawful Possession of a Firearm in the First Degree.
 Flores brought a CrR 3.6 motion to suppress all evidence of the gun. The judge granted the motion, which ultimately resulted in dismissal of the charges. The State appealed, and Division Three of the Court of Appeals affirmed the dismissal. The State appealed again to the WA Supreme Court.
 The court addressed the issue of whether it violates article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest.
 The court reasoned that an individual is seized when, under the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he is free to leave or decline a request due to an officer’s use of force or display of authority. State v. Rankin. This determination is made by objectively looking at the actions of the law enforcement officer.
 The court reasoned that an officer does not meet the standard required for a Terry stop in cases like this: “Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”
 Consequently, the Court gave factors from the WA Court of Appeals Div. III  decision State v. Mendes for determining what “an objective rationale” means when it comes to seizing a defendant’s companions. These Mendes factors include (but are not limited to) the arrest, the number of officers, the number of people present at the scene of the arrest, the time of day, the behavior of those present at the scene, the location of the arrest, the presence or suspected presence of a weapon, the officer’s knowledge of the arrestee or the companions and potentially affected citizens.
 “This is not an exhaustive list, and no one factor by itself justifies an officer’s seizure of non-arrested companions,” said the Court. “When determining whether there is an objective rationale, the court should look at all the circumstances present at the scene of the arrest.”
 Applying this “Objective Rationale Test,” the Court found that Officer McCain justifiably seized Mr. Flores to secure the scene of Powell ‘s arrest, and that the Officer’s actions were justified. The WA Supreme Court reversed the Court of Appeals, found the seizure was lawful and ruled the evidence of the gun should not have been suppressed.
 Justice McCloud dissented under arguments that officers must comply with Terry at the scene of an arrest, and that the new “Objective Rationale Test” adopted by the Court effectively circumvented time-tested case law:
“This holding creates a new exception to the Fourth Amendment’s warrant requirement, and we don’t have the power to create it–only the (United States) Supreme Court does. It’s also a new exception to our court’s consistent statements, for decades, that article I, section 7 provides more protection for individual privacy rights than the Fourth Amendment.”
 My opinion? The officers would have eventually found Mr. Flores’s firearm anyway if they followed protocol under a Terry stop. But they didn’t. Therefore, and similar to Justice McCloud, I’m concerned whether the “Objective Rationale Test” was wrongfully created to become another exception to the Fourth Amendment’s warrant requirement.

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.