Category Archives: law enforcement

State v. Mitchell: Bus Fare Officers

Bellingham Defense Attorney, Detention, felony, Firearm, law enforcement, Search and Seizure, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Sound Transit, King County Metro suspending fare enforcement to improve safety during novel coronavirus response | Mass Transit

In State v. Mitchell the WA Court of Appeals Division I decided that a fare enforcement officer (FEO) may detain a passenger for a period of time necessary to identify a bus rider and may also issue a notice of civil infraction when a passenger fails to pay the required fare or produce proof of payment when asked, if the infraction occurs in the officer’s presence. Finally, a “passenger” includes a person that the FEO observes stepping off the bus.

Here, Mitchell was convicted of Unlawful Possession of a Firearm in the First Degree. The firearms were discovered when a fare enforcement officer stopped him to check proof of fare payment after he exited a Metro bus. Mitchell argues he was unlawfully detained and the trial court erred by not suppressing evidence of the firearms.

The Court of Appeals reasoned that RCW 35.58.585(1) allows metropolitan municipal corporations to designate individuals to monitor fare payment. These persons have all the powers granted to enforcement officers under RCW 7.80.050 and 7.80.060. This means an FEO can issue a notice of civil infraction when the infraction occurs in the officer’s presence, request identification, and detain a person for a period of time reasonably necessary to identify the person. Also, under RCW 35.58.585(2)(b) the law specifically grants FEOs the additional authority for the following:

(i) Request proof of payment from passengers; (ii) Request personal identification from a passenger who does not produce proof of payment when requested; (iii) Issue a citation and (iv) Request that a passenger leave the bus or other mode of public transportation when the passenger has not produced proof of payment after being asked to do so by a person designated to monitor fare payment.

Here, the defendant challenged the legality of the stop. He argued that the word “passenger” includes only those persons physically present on a mode of public transportation. Under this theory, an FEO may request proof of payment from someone currently traveling on a bus, because that traveler’s freedom of movement is already restricted by his or her presence on a moving vehicle. However, once the person disembarks the bus, additional authority is needed to request proof of payment, because to do so an FEO must first stop the person.

Unfortunately for Mitchell, the WA Court of Appeals disagreed. They said that here, there is no question Mitchell was a passenger. The FEO witnessed Mitchell disembarking the bus. He asked Mitchell and the other departing passengers for their proof of payment as they stepped off the bus. By using the bus, as a passenger, Mitchell had already incurred the obligation to display proof of payment when asked. Under these facts, the FEO acted within the scope of his statutory authority by requesting proof of payment from Mitchell. Additional authority to detain was unnecessary.

Also, because Michell did not have ID on himself, the FEO had the authority to detain Mitchell for the time reasonably necessary to identify him. Accordingly, the FEO radioed for assistance and, within minutes, police arrived and confirmed Mitchell’s identity. At each step of this encounter, the FEO acted within the scope of his statutory authority.

The Court of Appeals upheld Mitchell’s conviction for Unlawful Possession of a Firearm First Degree.

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. Besola: Overbroad Search Warrant

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, law enforcement, Search and Seizure, Search Warrant, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Federal Warrants and Search and Seizure Lawyer | Eisner Gorin LLP

In State v. Besola, the Washington Supreme Court held that a search warrant was overbroad. Because the warrant failed to meet the Constitution’s “particularity” requirement, the court reversed the Defendant’s convictions for Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Mark Besola and Jeffrey Swenson lived together in Besola’s house. After a friend of Swenson’s, Kellie Westfall, was arrested, she told police that she had seen drugs and child pornography at Besola’ s house. Based on the information provided by Westfall, a judge issued a search warrant for illegal drugs but declined to issue a search warrant related to child pornography at that time.

At the scene, police saw CDs and DVDs with handwritten titles that implied that they contained child pornography. On the basis of this observation, police requested and obtained an addendum to the search warrant.

The language of that amended warrant (and whether it was sufficiently particular) is at the heart of the legal issue in this case.

The warrant indicated that the crime under investigation was “Possession of Child Pornography R.C.W. 9.68A.070.” Clerk’s Papers (CP) at 312 (boldface omitted). The warrant indicated that “the following evidence is material to the investigation or prosecution of the above described felony”:

1. Any and all video tapes, CDs, DVDs, or any other visual and or audio recordings; 2. Any and all printed pornographic materials; 3. Any photographs, but particularly of minors; 4. Any and all computer hard drives or laptop computers and any memory storage devices; 5. Any and all documents demonstrating purchase, sale or transfer of pornographic material.

Police seized a number of computers, memory storage devices, CDs, and DVDs. They ultimately found child pornography on one computer and on 41 disks with handwritten titles. They also found a DVD duplicating device (also known as a DVD burner) attached to the computer. Some disks contained duplicated copies of the child pornography.

A handwriting expert testified that Besola’s handwriting was on at least one of the disks containing child pornography and that indications of both Besola’s and Swenson’s handwriting were on multiple other disks. Both defendants were charged with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct and Dealing in such depictions.

Although the Court of Appeals affirmed the convictions, the WA Supreme Court granted review on the issue of whether the search warrant meet the Fourth Amendment’s particularity requirement.

The Court reasoned that the Fourth Amendment to the United States Constitution requires warrants to “particularly describe the place to be searched, and the persons or things to be seized.” That requirement is heightened if the warrant authorizes a search for materials protected by the First Amendment to the United States Constitution.

For guidance, the court reviewed a 1992 case, State v. Perrone, that involved similar circumstances. In Perrone, the Court decided that the warrant in that case failed to meet the particularity requirement of the Fourth Amendment, in part because it provided for the seizure of items that were legal to possess, such as adult pornography.

Here, the Court decided the decision in Perrone is binding in this case. Under Perrone, the court concluded that many provisions of this search warrant were similarly overbroad. As in Perrone, the descriptions of the items to be seized expressly included materials that were legal to possess, such as adult pornography and photographs that did not depict children engaged in sexually explicit conduct.

Similar to Perrone, these descriptions could easily have been made more particular by adding the precise statutory language, “depictions of a minor engaged in sexually explicit conduct.” As in Perrone, the police in this case failed to add that language to their search warrant. Therefore, under Perrone, these provisions were insufficiently particular and thus invalid.

The WA Supreme Court denied the State’s arguments that the warrant in this case is saved by a citation to the child pornography statute at the top of the warrant. The Court reasoned the State was incorrect because the statutory citation does not modify or limit the items listed in the warrant, so it does not save the warrant from being overbroad. More importantly, said the Court, the State’s position conflicts with Perrone and would hinder the goals of the warrant particularity requirement.

Because the warrant fails to meet the Constitution’s particularity requirement, the WA Supreme Court reversed these convictions.

My opinion? Good decision. Yes, possessing child porn is illegal. However, so are illegal searches. Warrants must particularly describe the items believed to found. Otherwise, they become a meaningless ticket allowing police to engage a fishing expedition of our bodies, property, vehicles and homes. 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.

Police Roll Out Mobile DUI Processing Vehicle

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They took this show on the road.

Law enforcement officials in Rhode Island are rolling out a new tool to combat drunk driving over the holidays.

Providence and state police officials unveiled Friday a new Blood Alcohol Testing Mobile Unit, which will allow officers to process drunk drivers on the scene rather than bringing them back to the police station.

The 40 foot long, approximately $350,000 vehicle is equipped with four computer work stations, two breathalyzer stations, a portable fingerprint and booking station and internal surveillance cameras.

Police say having two breathalyzer stations is a luxury not present in most police stations.

The vehicle was purchased using a federal grant awarded to Providence police and is expected to be deployed on weekends, holidays and special events across the state starting this weekend.

My opinion? These “vehicles” are not worth the money. It doesn’t take long for officers to simply transport DUI suspects back to the jail for DUI processing. The amount of times this is used versus the amount of time it would take those cases to go back to the station, I just can’t see justifying the savings. Also, will the breathalyzer (BAC) machines on these mobile units be maintained and tested similar to the BAC machines at jails? Too many questions, too much expense.

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. Mayer: Officer Gives Confusing Miranda Warnings

Bellingham Defense Attorney, Constitutional Rights, Due Process, Exclusionary Rule, felony, law enforcement, Miranda, Robbery, Self-Incrimination, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Mayer, the WA Supreme Court decided that a deputy sheriff inadequately advised the defendant of his Miranda rights when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court.

Here, defendant Nicholas Mayer was suspected of robbing KC Teriyaki,  a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day’s sales. The apparent motive for the robbery was because Mr. Mayer’s sister, Emily Mayer, was a disgruntled ex-employee.

Police stopped Mr. Mayer’s vehicle, detained Mayer and the vehicle’s other occupants, and transported them to the police station for questioning regarding the robbery. Deputy Tom Dennison of the Clark County Sheriff’s Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording.Once recording began, Dennison again advised Mayer of his Miranda rights:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: “Do you understand each of these rights as I’ve explained them to you?”

MR. MAYER: Yes. Um, If I wanted an attorney and I can’t afford one, what — what would — ?

DEPUTY DENNISON: If you wanted an attorney– you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn’t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be– how it– how I–

DEPUTY DENNISON: You’re not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you’d go before a judge and then he would ask you whatever at that point, if you were being charged, you would afforded an attorney if you couldn’t hi — you know, if you weren’t able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees “give me the money”; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

Based on the confession, Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including Robbery in the First Degree. Mayer moved to suppress the incriminating statements he made during his interview with Officer Dennison, but the superior court denied the motion after a CrR 3.5 hearing.

The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. The WA Supreme Court granted review on his Miranda challenge.

For those who don’t know, the explanation of Miranda rights must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Here, the WA Supreme Court ruled that Mayer’s confession should have been suppressed. They reasoned that Officer Dennison’s linkage of Mayer’s right to appointed counsel to conditional future events (arrest, jail, charge, and arraignment) contradicted his earlier statements that Mayer could have access to appointed counsel “before questioning” and that he could exercise his rights “at any time.” Critically, Officer Dennison did not tell Mayer that despite the fact that no appointed attorney was immediately available, Mayer’s other Miranda rights remained in full effect and he could protect his right to the presence of counsel by remaining silent until he could speak to an attorney.

Under these circumstances, ruled the court, Officer Dennison’s explanation of Mayer’s rights was deficient, and the State has failed to meet its burden of establishing that Mayer knowingly and intelligently waived his rights. Mayer’s subsequent confession therefore should have been suppressed. However, the Court further reasoned that because any error in admitting the confession was harmless, the court affirmed Mayer’s conviction.

My opinion? Good decision. This Miranda advisement from the police officer was contradictory and confusing. The deputy should have clarified that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. Again, good decision. Unfortunately for the Defendant, however, the WA Supreme Court also decided the error was harmless. In other words, he was still convicted of the charges and must serve his sentence.

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. Rooney: Unlawful Search of Bedroom, Yet Valid Frisk of Pants.

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What to Know About Unlawful Search and Seizure

In State v. Rooney, the WA Court of Appeals Division II gave interesting results on a multi-layered search & seizure case. First, an officer who lawfully entered a parolee’s room in order to arrest him, properly conducted a Terry frisk of a roommate’s pair of pants before giving them to the roommate. The frisk was justified by the presence of several swords, an axe and multiple knives in the room. However, the officer’s search of a room over the objection of the roommate, who was not on community custody, violated the roommate’s Constitutional rights.

Alexandria White, who was serving a term of community custody, began living with the defendant, Norman Rooney, in his home in December 2013 shortly after her release from prison. Her parole officer Chris Napolitano supervised White’s community custody. Napolitano knew that Rooney and White had lived together like a married couple and they had always lived in the same room together.

After White moved in with Rooney again that December, Napolitano discovered White had changed her address without notifying him, which violated her community custody conditions.

Napolitano obtained an arrest warrant for White and, with a team of law enforcement officers, went to Rooney’s house to arrest her on December 30, 2013. As Napolitano walked into the bedroom, White was standing in the bedroom with Rooney, who appeared to be asleep in bed. Napolitano observed swords and axes hanging on the bedroom wall and a couple of knives laying on the shelves. He observed additional weapons on Rooney’s nightstand. Napolitano advised White that by failing to report her new address and not being available for contact she had violated her community custody. White acknowledged that Napolitano would arrest her for the violation.

After Napolitano arrested White and placed her in the living room, Napolitano told White that he was going to search the bedroom. White responded that she lived in the living room, not the bedroom, but Napolitano did not see any sleeping arrangements or anything that appeared to be White’s belongings in the living room. Napolitano ordered Rooney to leave the bedroom so the officers could search it. Rooney objected to the search because he was not currently on community custody, but he began to physically comply.

Rooney, who was dressed in what appeared to be boxer shorts, asked to put on pants. Napolitano replied that he would have to search the pants “for safety reasons” before Rooney could put them on and leave the room. Given the other weapons in the room, Napolitano was concerned that Rooney might have a weapon in the pants. Rooney grabbed a pair of pants, and when Napolitano took hold of the pants, he immediately felt a firearm.

After Rooney was arrested and placed in the living room, Napolitano and Harvey searched the bedroom and found methamphetamine, heroin, and clonazepam. The State charged Rooney with three counts of Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam) and one count of First Degree Unlawful Possession of a Firearm. Rooney moved to suppress evidence of the controlled substances and the firearm. The trial court denied Rooney’s motion and found him guilty as charged at a bench trial. On appeal, Rooney argues that the trial court erred when it denied his motion to suppress.

The Court of Appeals reasoned that warrantless searches and seizures are generally unreasonable and violate the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution. However, consent is one well-recognized exception to this rule. The State bears the burden of proving by clear and convincing evidence that a warrantless search falls into one of the exceptions to the warrant requirement.

The Court further reasoned that, in searches involving a cohabitant who consents to a warrantless search, Washington has adopted the Common Authority Rule; which says that a cohabitant may grant consent to search a residential area that each cohabitant has equal authority to control. This rule is based on the Washington Constitution’s guarantee of each individual’s expectation of privacy and the theory that a person assumes risk that his or her cohabitant may allow “outsiders” into a shared space.

Finally, the Court reasoned that the consent of only one person with common authority over the place to be searched when multiple cohabitants are present is NOT sufficient to conduct a lawful search of shared space.  “We have never held that a cohabitant with common authority can give consent that is binding upon another cohabitant with equal or greater control over the premises when the non-consenting cohabitant is actually present on the premises,” said the Court. “When a cohabitant who has equal or greater authority to control the premises is present, his consent must be obtained and the consent of another of equal or lesser authority is ineffective against the non-consenting cohabitant.”

With that, the court held that under application of the common authority rule, because Rooney was present and objected, the officers’ search of Rooney’s room was unlawful. The fact that White was serving a community custody term does not undermine Rooney’s right to object to a warrantless search of his bedroom. Therefore, the officers’ warrantless search of Rooney’s bedroom was unlawful as to Rooney, and the trial court erred in denying Rooney’s motion to suppress the methamphetamine, heroin, and clonazepam evidence found during the unlawful search.

Regarding the frisk of Rooney’s pants, the Court of Appeals reached an entirely different decision. They decided the trial court did not error in denying Rooney’s motion to suppress evidence of the firearm found in Rooney’s pants. The Court reasoned that an officer may conduct a non-consensual protective Terry frisk for weapons if the officer can articulate specific facts that create an objectively reasonable belief that the person is armed and dangerous. The officer need not be certain that the person is armed before he or she conducts a protective frisk.

Here, Napolitano and other law enforcement officers saw “several swords, an axe, and multiple knives” in Rooney’s bedroom. Because he was aware of the number of weapons, Napolitano was concerned for his safety. Also, Rooney’s behavior following Napolitano’s warning that the pants would be searched, together with Napolitano’s observation of the weapons in plain view in his bedroom, gave Napolitano articulable suspicion that the pants Rooney wanted to wear might have contained a weapon.

The court concluded that the officers’ warrantless search of Rooney’s bedroom over his objection was unlawful, and therefore, the evidence of the controlled substances must be suppressed. But Napolitano’s frisk of Rooney’s pants was lawful and based on reasonable suspicion. Therefore, the court reversed Rooney’s three convictions for Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam), and affirmed his conviction for First Degree Unlawful Possession of a Firearm.

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: Youth Tolerance Of Marijuana May Increase Chances of DUI

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Study offers support for the notion of e-cigarettes as a gateway drug

A new study from the journal Pediatrics suggests ways to reduce the risk that children will drive under the influence of alcohol or drugs as teenagers.

The study found that 12-year-old children who believed marijuana could help them relax or was otherwise beneficial were more likely to drive under the influence when they were 16. The study also showed these minors were also significantly more likely to ride with someone else who was buzzed, drunk or high behind the wheel.

“Youth view marijuana use as less dangerous than drinking,” the study authors wrote. “We must begin to address how changing views of marijuana might increase risk for not only marijuana use, but other behaviors.”

Driving under the influence is common among American teenagers. The Centers for Disease Control and Prevention estimates that 10% of high school students do so in any given month, and more than 20% have been passengers of someone driving under the influence.

So researchers from Rand Corp. in Santa Monica and Arlington, Va., went looking for risk factors in middle school that could predict these dangerous behaviors in high school. They turned to data from a substance use prevention program called CHOICE that was tested in 16 middle schools in greater Los Angeles.

The Rand researchers focused on 1,124 students who completed detailed surveys in 2009 (when their average age was 12.2 years old), 2011 (when their average age was 14.3) and 2013 (when their average age was 16.3 and 88% were eligible to drive in California). The majority of these students (57%) were girls, and half were Latino.

Using statistical models to control for the students’ age, gender, race and ethnicity, school and whether their mothers had graduated from high school, the researchers identified several factors that seemed to predict unsafe driving at age 16.

According to the study, those who held more tolerant ideas about marijuana when they were 12 (in sixth or seventh grade) were 63% more likely than their peers to admit either driving under the influence themselves or to ride with someone who was under the influence

Additionally, 12-year-olds who felt most confident that they could resist marijuana use wound up being 89% more likely to mix alcohol and drugs with cars, motorcycles or other vehicles. This finding surprised the researchers, they wrote.

By the time the students were 14, some of the risk factors had changed. Those who said they had used alcohol in the last month were more than twice as likely as their peers to drive under the influence or ride with an intoxicated driver two years later.

Also, those whose friends used marijuana were 2.4 times more likely to be involved in unsafe driving later, and those whose family members used marijuana were 54% more likely to do the same.

And positive beliefs about marijuana still mattered — 14-year-olds who had them were still 67% more likely to mix alcohol, drugs and motor vehicles at age 16.

The researchers noted that marijuana has taken on a benign image among middle schoolers “as medical and recreational marijuana legalization increases in our country, adolescents are becoming more accepting of marijuana use,” they wrote. “This highlights the need to address these types of beliefs as early as sixth grade.”

My opinion? If these studies are accurate, they merely reveal our need to EDUCATE our youth about drugs, alcohol and vehicles. In short, DRUGS/ALCOHOL AND VEHICLES DON’T MIX. It doesn’t matter what type of drug you’re taking; whether it be prescription, medical marijuana or street drugs. Don’t do drugs and drive. And it doesn’t matter what type of alcohol you’re drinking. Don’t drink and drive.  If your doctor informs you that taking your prescription medication may affect your ability to operate a motor vehicle, then please think twice about operating a motor vehicle.

I’ve assisted many clients facing DUI charges of varying degrees. However, studies like this show that society is becoming less tolerant and sympathetic toward individuals charged with DUI. It takes a very competent and experienced defense attorney to reveal the science, forensics and idiosyncrasies of DUI litigation in today’s anti-drug climate.

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.

States With Weird Liquor Laws

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Weird Liquor Laws, Beer ABV Legal Limits, and Blue Laws – Southern Drinking Club

A news report from time.com discusses how many states have bizarre, outdated and just plain weird laws regarding the sale and consumption of alcohol.

Texas
Texas prides itself on its business-friendly, free-market ethos. But when it comes to alcohol, Texas has some pretty elaborate regulations. Wal-Mart is feuding with Texas over the state’s refusal to let it stock liquor in its aisles. The issue? A 1995 law preventing public companies with more than 35 shareholders from selling hard liquor in the state. Walmart, which argues the law is unconstitutional, sued. Earlier this week, a court date was set for Sept. 2016.

Pennsylvania
For sheer strangeness alone it’s hard to beat Pennsylvania v. 2,447 Bottles of Wine. With its Quaker roots, Pennsylvania has some of the strictest alcohol rules in the nation, allowing sales of wine and liquor only through 600 special-state run stores. When a Chester County attorney was recently charged with importing more than 2,400 bottles of wine and selling some without a license, he struck a deal that let him keep about 1,000 bottles. But state law requires the remainder, more than 1,300 bottles, to be destroyed.

Massachusetts
Pennsylvania has Quakers, Massachusetts has Puritans. If that conjures an image of dour finger waving, you’re not far off the mark. Massachusetts law bans happy hours and drink specials, not to mention drinking games, and severely restricts when supermarkets can sell beer and wine. Some think the Bay State may interpreting its heritage too seriously. The Boston Globe,citing a colonial historian who noted that early settlers opened plenty of taverns, recently argued “Drinking Laws in Massachusetts Aren’t Puritanical — They’re Worse.”

Maine
Like many states, Maine restricts the sale of liquor on Sundays, in this case prohibiting it before 9 a.m. There is an important exception, however. In 2013, sharp-eyed Mainers realized St. Patrick’s Day would fall on a Sunday that year. Not to worry: Gov. Paul LePage signed an emergency law allowing liquor to be served as early as 6 a.m. when the holiday falls on a Sunday. Crisis averted.

 Louisiana

A state also known for its traditions, though not necessarily puritanical ones. Louisiana was the last state to raise its drinking age to 21 from 18. It has taken certain additional steps to combat drunk driving, including an open-container law, which discourages drinking in a vehicle, at least in theory. The law acknowledges the state’s ubiquitous drive-by daiquiri stands with a provision that considers a container closed so long as the straw hasn’t been put in the opening on the lid of the cup. One recent transplant describes the apparent logic of this:

As my friend once said, during my inaugural drive through daiquiri run, “We’re not going to drink it while we’re driving, we’re just going to go get it.”

“Then what are we going to do with it?”

“Then we’re going to go stop and drink it,” she said.

Nevada
In Nevada, bars can (and do) stay open 24 hours, and liquor can be sold at supermarkets and convenience stores. Open containers are permitted in Las Vegas and the nearby Strip. Also, state law explicitly states that it is not a crime to be drunk in public because drunkenness is a health problem—and obviously what all those people sipping gin and tonics on the patio of the Bellagio’s pool need most is the Nevada State Legislature’s support and sympathy.

New Jersey
Several states, including Massachusetts, Pennsylvania, and Idaho, set quotas for the number of liquor licenses they issue to bars and restaurants. That can lead to licenses being traded on the secondary market and changing hands for hefty sums. There are reports of sales in Montana for as much as $1 million. But no one does a shakedown like New Jersey. One New Jersey license reportedly sold for as much as $1.6 million.

Idaho
While Idaho’s liquor licenses may not sell as for as much as New Jersey’s, the state’s quota system has drawn attention for a different reason. The quotas, which allow for just one license for every 1,500 people, are designed to be strict: Temperance is written into the state’s constitution, which calls it a “first concern” of good government. But granting exceptions has proved pretty tempting too. The result: a spate of laws that seem to open the door, if only a crack, like this one highlighted by the Institute for Justice.

For example, in order to grant an exception to Clark House, a historic bed and breakfast on Hayden Lake, the Legislature passed an amendment lifting the rural license ban on any hotel that ‘has been in existence for at least 75 years and has been on the historic register for a minimum of 10 years, is situated within 500 yards of a natural lake containing a minimum of 36,000 acre feet of water when full with a minimum of 32 miles of shoreline, and is located in a county with a minimum population of 65,000.’

Utah
If there’s one thing you know about Mormons it may be that they don’t drink alcohol (or coffee for that matter.) So it’s not a huge surprise that Utah’s attitude toward liquor is more like Pennsylvania’s than that of its next door neighbor Nevada. In fact, Utah’s regulations are so strict, the Salt Lake City tourism board has a whole page devoted just to debunking Utah drinking law myths. The “Zion curtain,” in which the bartender mixes drinks out of sight, really exists—although only in restaurants opened after July 2012, not in bars or clubs, we are reassured. You can have more than one drink in front of you at a time, although indeed it is not permitted to order a double. If you order a drink in a restaurant, you also have to order food, at least an appetizer (which can be shared). Sounding not a little defensive, the tourism board concludes: “But let’s be honest: there are lots of weird liquor laws in the world.”

Washingtonians, if you think we’ve got it bad, there is worse.

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.

New App Tries Reducing Drunk Driving Deaths

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A news article from NR Today, an Oregon newspaper, reported the Oregon Department of Transportation is pushing a new smartphone application that hopes to help impaired drivers get home safely. Read more here.

In short, the app, titled SaferRide, is a mobile phone program developed by the NHTSA and allows users to call a taxi or a friend. It shows the app users their location so they can easily be picked up.

New data from NHTSA shows that drunk driving deaths declined by 2.5 percent in 2013. Yet, even with this decrease from the previous year, 10,076 people died in crashes involving a drunk driver in 2013 — one death every 52 minutes. December 2013 was the month with the lowest number of drunk driving fatalities, 733 lives lost.

“This app easily and simply helps someone who is impaired get a ride or summon friends and do what it takes to get home safely,” said Dan Estes, DUII program manager for ODOT, in a release. “This app can accomplish a lot, and people need to know it’s available.”

Impaired driving can come from alcohol, over the counter or prescription drugs, illegal or recreational drugs, or other substances.

Representatives from ODOT, Clackamas County, Washington County, Oregon Impact, the City of Portland, OLCC, TriMet, OHSU ThinkFirst, AAA, Oregon Health Authority and Trauma Nurses Talk Tough came up with the idea while brainstorming ideas to tackle Oregon’s rise in crashes.

The app is available for Android devices on Google Play and Apple devices on the iTunes store.

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.

Stingray “Spy” Devices

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This undated handout photo provided by the U.S. Patent and Trademark Office shows the StingRay II, manufactured by Harris Corporation, of Melbourne, Fla., a cellular site simulator used for surveillance purposes. (AP Photo/U.S. Patent and Trademark Office)

Intimidating, no?

This suitcase-sized device, called Hailstorm or Stingray, is a controversial cellular phone surveillance device manufactured by the Harris Corporation. It is designed to sweep up basic cellphone data from a neighborhood and identify unique subscriber numbers. That data is then transmitted to the police, allowing them to locate a phone without the user even making a call or sending a text message. It’s the newest, most advanced technology in spyware which essentially allows police to observe, record and otherwise pinpoint your cell phone activity. And, of course, a growing number of police departments are purchasing these devices.

Stingrays cost as much as $400,000 and acts as a fake cell tower. The system, typically installed in a vehicle so it can be moved into any neighborhood, tricks all nearby phones into connecting to it and feeding data to police. In some states, the devices are available to any local police department via state surveillance units. The federal government funds most of the purchases, via anti-terror grants.

These devices are used to spy on people’s words, locations and associations. Stingrays can capture everything from metadata (who called whom, when, and sometimes from where) to the content of calls.

A news article from USA Today titled, Cellphone Data Spying: It’s Not Just the NSA describes how numerous police agencies across the country refuse to admit whether they’ve used Stingrays in surveillance. According to the article, most police agencies deny public records requests, arguing that criminals or terrorists could use the information to thwart important crime-fighting and surveillance techniques. Police maintain that cellphone data can help solve crimes, track fugitives or abducted children or even foil a terror attack.

The American Civil Liberties Union (ACLU) has investigated the use of Stingrays and has also successfully identified 54 agencies in 21 states and the District of Columbia that own Stingrays. Many agencies continue to shroud their purchase and use of Stingrays in secrecy.

A growing number of courts and legal authorities are increasingly wary on whether Stingrays violate citizen’s rights against unlawful search under the Fourth Amendment to the U.S. Constitution. For example,  in FROM SMARTPHONES TO STINGRAYS: CAN THE FOURTH AMENDMENT KEEP UP WITH THE TWENTY-FIRST CENTURY? attorney Brittany Hampton wrote a Note in the University of Louisville Law Review which discussed the questionable use of the Stingray devices by police agencies.

In her article, Ms. Hampton argues that individuals have a reasonable expectation of privacy in their movements when using their cellphones; therefore, the use of the Stingray constitutes a search within the meaning of the Fourth Amendment. She also discusses the need for the United States Supreme Court to develop a clear warrant requirement for the monitoring of an individual using the Stingray device. Ultimately, Hampton advocates a warrant requirement for utilizing the Stingray devices for police tracking purposes because the warrantless use of the Stingray is an unreasonable search under the Fourth Amendment.

My opinion? I wholeheartedly agree with Ms. Hampton, the ACLU and other legal experts on this issues. Using Stingrays is an unlawful search. Quite frankly, the government should not have carte blanche secret access to people’s cell phone use and information. It’s overly intrusive and distasteful that the government can, without warning, essentially use people’s cell data as pretextual evidence to investigate our whereabouts, listen to our conversations and ultimately charge us with crimes.

Even worse – and speaking as a criminal defense attorney – it’s disturbing that police agencies can use the information obtained from Stingrays as probable cause to obtain search warrants of people’s homes and seize evidence therein. Moreover, if I move to suppress the evidence gained from the search warrant as the fruits of an unlawful search, local police agencies deny and circumvent my Motions to Compel Evidence and Public Disclosure Requests by simply having the feds conduct the Stingray search. This is bad.

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. Martines: WA Supreme Court Finds Defendant Guilty of DUI on Blood Test Case

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Bad news.

In State v. Martines, the Washington Supreme Court reversed the WA Court of Appeals Division I. I blogged about this case last year in State v. Martines: More Good Caselaw on Blood tests Taken After DUI Arrests. There, the WA Court of Appeals version of State v. Martines held that the blood test performed on Martines was an unlawful warrantless search. The Court of Appeals also reasoned that drawing blood and testing blood constitute separate searches, each of which requires particular authorization, and that the warrant here authorized only a blood draw.

The original Martines opinion appeared strong. It was rooted in the United States Supreme Court’s decision in Missouri v. McNeely; which requires police officers to obtain search warrants for blood draws in DUI cases when exigent circumstances do not otherwise exist. It also followed Washington State legalizing marijuana, thus necessitating stronger regulations and monitoring of blood tests performed during DUI investigations.

The WA Supreme Court decided differently in a short, scathing opinion signed by all justices.

First, the Court held that a warrant authorizing the testing of a blood sample for intoxicants does not require separate findings of probable cause to suspect drug and alcohol use so long as there is probable cause to suspect intoxication that may be caused by alcohol, drugs, or a combination of both.

Second, the Court  further held that the search warrant lawfully authorized testing Martines’s blood sample for intoxicants because it authorized a blood draw to obtain evidence of DUI. In other words, the search of Martines’s blood did not exceed the bounds of the search warrant when a sample of Martines’s blood was extracted and tested for intoxicants anyway.

My opinion?

Bad decision. I’m amazed the WA Supremes didn’t discuss Missouri v. McNeely at all. Not once. McNeely profoundly and significantly evolved search and seizure law concerning blood draws in DUI investigations. Indeed, McNeely was the underpinnings for Division One Court of Appeals case State v. Martinez. Yet the WA Supremes ignore McNeely as if it didn’t exist. Ignoring case precedents violates stare decisis, plain and simple.

Hopefully, this case gets appealed to the U.S. Supreme Court for further review.

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.