Category Archives: Methamphetamine

Meth Hurts Opioid Treatment

Image result for meth and opioids

The Journal of Substance Abuse Treatment  published a new study which found that methamphetamine use was associated with more than twice the risk for dropping out of treatment for opioid-use disorder.

The origins of the study are interesting. Apparently, Judith Tsui, a UW Medicine clinician specializing in addiction treatment, was seeing more and more patients she was treating for opioid-use disorder also using methamphetamines, a powerful, highly addictive stimulant that affects the central nervous system.

She would start the patients on buprenorphine, a medication to treat opioid use disorder, but they would often drop out. So she and colleagues wanted to see if this was a common problem. They conducted a large study (799 people) at three sites — Harborview Adult Medicine Clinic in Seattle and Evergreen Treatment Services in Olympia and Grays Harbor.

“This study confirms anecdotally what we sensed,” said Tsui. “The next step is to build into treatment models how we can help those patients who struggle both with opioids and methamphetamines to be successful.”

“A substantial proportion of these patients are homeless and may use meth to stay awake at night just to stay safe and keep an eye on their belongings.”              ~Judith Tsui, UW Medicine Clinician

Dr. Tsui also said patients also tell her the streets are flooded with the drug and it’s hard for them to say no. Some patients have requested treatment with prescribed stimulant medications like Adderall and Ritalin to help them stop using methamphetamines.

Please contact my office if you, a friend or family member face criminal charges for illegal possession and/or distribution of unlawful drugs. The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures by the government. In many cases – including drug cases in particular – the legality of how law enforcement officials obtained the evidence used to support the State’s case is a central and debatable issue. If the government’s conduct violated a person’s rights, the evidence is deemed inadmissible. And without the necessary evidence to prove the criminal charges, the judge may dismiss the State’s case.

New Year’s Eve DUI Patrols

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

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

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

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

Rape By Forcible Compulsion or Consent?

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In State v. Knapp, the WA Court of Appeals held a defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.

BACKGROUND FACTS

Mr. Knapp and Ms. Spaulding met in high school and were friends for more than a decade. On February 7, 2016, Ms. Spaulding was preparing to watch the Super Bowl when Knapp came to her home. Ms. Spaulding let him in. The events following this were disputed.

According to Ms. Spaulding, Knapp began to make sexual comments toward her and expressed an interest in having sex. Ms. Spaulding denied his advances. Knapp then left, but soon returned to the home, claiming he forgot his bandana. Ms. Spaulding let him in again and while she was sitting on the couch, Knapp threw her to the ground and pulled down her pants.

Ms. Spaulding screamed for her neighbors, but they did not hear her. Knapp then used his bandana to gag her. The struggle continued until Knapp pinned her against a wall and raped her. Ms. Spaulding continued to say, “No,” “Stop,” and “Don’t do this.” Knapp left, and Ms. Spaulding called her mother and then the police. Ms. Spaulding was taken to the hospital where she underwent a sexual assault examination.

According to Knapp, he and Ms. Spaulding were “friends with benefits” for years and engaged in sex together on and off. After Ms. Spaulding let him in the first time, Ms. Spaulding realized Knapp was high on methamphetamine and she hinted that she wanted some. Knapp refused to give her any. Ms. Spaulding became upset, and Knapp decided to leave.

After he left, Knapp realized he forgot his bandana and returned to retrieve it. Ms. Spaulding let him in again, and she pressed Knapp to get her high. Eventually, Ms. Spaulding offered sex for drugs. At that point, Knapp “gave in” and they had sex. Afterward, Knapp could not find the methamphetamine to give to her. Ms. Spaulding became upset and threatened to call the police and falsely accuse him of rape. Knapp left and was later arrested. The State charged Knapp with rape in the second degree by forcible compulsion.

THE TRIAL

At trial, Knapp requested a jury instruction that told the jury the State had the burden of proving an absence of consent beyond a reasonable doubt. The State opposed this instruction, arguing it was not a correct statement of the law. The State instead proposed Washington pattern jury instruction 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse.”

The trial court declined to give Knapp’s proposed instruction and instead gave the State’s. The jury found Knapp guilty of second degree rape. The trial court sentenced Knapp to a midrange sentence—110 months to life.

Knapp appealed on the issue of whether the jury was properly instructed on the issue of consent.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that at trial, each party is entitled to have the jury instructed on its theory of the case when there is sufficient evidence to support that theory.

“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law,” said the Court. “Read as a whole, the jury instructions must make the legal standard apparent to the average juror.”

Here, both parties relied heavily on State v. W.R., a case which apparently offers confusing interpretations of which party in a criminal sex case has the burden of proving consent.

The Court acknowledged that Knapp argued that W.R. stands for the proposition that the burden to prove consent has now shifted to the State, and the State must prove a lack of consent beyond a reasonable doubt. Knapp’s proposed jury instruction read: Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The Defendant has no burden to prove that sexual intercourse was consensual. It is the State’s burden to prove the absence of consent beyond a reasonable doubt.”

However, the Court of Appeals disagreed with Knapp:

“The court in W.R. focused on whether the burden to prove consent was correctly placed on the defendant. It did not hold that the State must prove the absence of consent.”

The Court ruled that the trial court did not commit legal error when it denied Knapp’s proposed instruction. “Knapp’s proposed instruction was an incorrect statement of the law,” it said. “W.R. did not hold that the burden to prove an absence of consent shifted to the State. Instead, it held that the burden to prove consent cannot be placed on the defendant.”

Furthermore, when read as a whole, the trial court’s instructions allowed Knapp to argue his theory of the case. “Knapp claimed the sexual intercourse was consensual,” said the Court of Appeals. “The court’s instructions on the elements of the offense and consent allowed Knapp to argue his theory of the case—that Ms. Spaulding consented to sexual intercourse and the State failed to prove forcible compulsion beyond a reasonable doubt.”

With that, the Court of appeals affirmed Knapp’s conviction.

Please contact my office if you, a friend or family member face criminal sex charges. Consent is a viable defense, and evidence of consent may be considered by the jury. Therefore, it’s imperative to hire a defense attorney knowledgeable of the law surrounding these issues.

Inventory Searches, Automatic Standing, & Stolen Vehicles.

Image result for meth in car

In State v. Peck, the WA Supreme Court found that persons found in possession of a stolen vehicle may challenge the search of that vehicle.  However, closed containers, other than items that “possess the same aura of privacy as a purse, shaving kit, or personal luggage” and locked containers, may be opened  during an inventory search of a stolen vehicle.  The search, of course, must not be used as a pretext for an investigatory search.

BACKGROUND FACTS

Two Kittitas County sheriffs deputies responded to a suspected theft in progress at a home in rural Ellensburg. When the deputies arrived, they discovered two individuals outside the home, along with a pickup truck stuck in the driveway’s unplowed snow. The deputies handcuffed the two men and eventually learned that they were Mr. Peck and Clark Tellvik. Two more deputies then arrived. One of them entered the pickup truck’s license plate into a law-enforcement database and learned that the truck had been reported stolen.

Officers impounded the vehicle. They searched the pickup without obtaining a search warrant because they believed that Peck and Tellvik did not have a reasonable expectation of privacy in a stolen vehicle. Police discovered methamphetamine and drug paraphernalia inside the vehicle.

Peck and Tellvik were charged with several crimes, including possession of a stolen vehicle and possession of a controlled substance with intent to deliver. The defendants moved to suppress the contraband found in the black zippered nylon case. The trial court denied the motion to suppress, finding the inventory search to be proper and finding no evidence of pretext. A jury subsequently convicted each defendant of the charged drug possession and stolen vehicle offenses. Peck and Tellvik were subsequently convicted. Both appealed their controlled substance convictions. The Court of Appeals reversed the trial court’s denial of the motion to suppress. The WA Supreme Court granted review.

ISSUES

  1. Whether defendants have standing to challenge the scope of a warrantless inventory search of a vehicle when that vehicle is stolen.
  2. Whether a proper inventory search extends to opening an innocuous, unlocked container of unknown ownership found in a stolen vehicle associated with defendants who were apprehended while burglarizing a home.

COURT’S ANALYSIS & CONCLUSIONS

  1. Defendants have standing to challenge the scope of a warrantless inventory search of a vehicle, even when that vehicle is stolen.

First, the WA Supreme Court held the defendants have standing to challenge the search. It reasoned that a defendant has automatic standing to challenge a search if (1) possession is an essential element of the charged offense and (2) the defendant was in possession
of the contraband at the time of the contested search or seizure. And a defendant
has automatic standing to challenge the legality of a seizure even though he or
she could not technically have a privacy interest in such property.

“Peck and Tellvik have automatic standing to challenge the inventory search,” said the Court. It reasoned that the first prong of the test was satisfied because both were charged with possession of a controlled substance with intent to deliver. Furthermore, the second prong is satisfied because Peck and Tellvik were in possession of the truck up until the time of the search. “As such, Peck and Tellvik have automatic standing to
challenge the warrantless inventory search of the black zippered nylon case.”

2. A proper inventory search extends to opening an unlocked container of unknown ownership found in a stolen vehicle.

The WA Supreme Court began by saying that warrantless searches are unreasonable. Despite that rule, a warrantless search is valid if one of the narrow exceptions to the warrant requirement applies. One of those narrow exceptions is a noninvestigatory inventory search. Inventory searches have long been recognized as a practical necessity.

“To be valid, inventory searches must be conducted in good faith and not as a pretext for an investigatory search.”

The court explained that Inventory searches are also limited in both scope and purpose. They are permissible because they (1) protect the vehicle owner’s (or occupants’) property, (2) protect law enforcement agencies/officers and temporary storage bailees from false claims of theft, and (3) protect police officers and the public from potential danger. Unlike a probable cause search and search incident to arrest, officers conducting an inventory search perform an administrative or caretaking function.

The Court reasoned that under these circumstances, it was proper for police to do more than merely inventory the unlocked nylon case as a sealed unit. First, the police knew the vehicle was stolen. Second, Peck and Tellvik were arrested while in the process of burglarizing a home and were observed taking items from the home and its surroundings. Responding officers testified that a purpose in conducting an inventory search of the truck was to determine ownership of both the truck and its various contents. Third, the search was not pretextual. And finally, the innocuous nature of the container at issue is important: a nylon case that looked like it contained CDs does not possess the same aura of privacy as a purse, shaving kit, or personal luggage.

“Here, where the vehicle was stolen, Peck and Tellvik were arrested immediately outside of a home that they were currently  burglarizing, and the trial court explicitly found no evidence of pretext, the search was proper.”

The WA Supreme Court concluded that under the facts of this case, the search was a lawful inventory search. Accordingly, it reversed the Court of Appeals and upheld the denial of the motion to suppress. Justices Gordon McCloud, Madsen, Yu, and Chief Justice Fairhurst dissented.

Please contact my office if you, a friend or family member face criminal charges involving vehicle searches. It is imperative to hire an experienced criminal defense attorney who will defend your rights.

Credit Card Value

Image result for cancelled credit card

In State v. Sandoval, the WA Court of Appeals held that an access device (credit card) need not be able to obtain something of value at the time it is found on a defendant. The access device need only be able to obtain something of value at the time it was last in the possession of its lawful owner.

BACKGROUND FACTS

Ms. Sandoval entered into an agreement with a car dealership. The agreement allowed Sandoval to take home and use a vehicle for three days to determine whether she wanted to purchase it. After three days, the dealership lost contact with Sandoval and made unsuccessful attempts to retrieve the vehicle. The dealership reported the vehicle stolen.

Eventually, the police found Sandoval and her husband in the stolen vehicle at the address
listed in the agreement. The police arrested Sandoval for possession of a stolen vehicle and
searched her incident to that arrest. In Sandoval’s purse, the police found a credit card with somebody else’s name on it, Sandoval’s sister’s birth certificate, and a pipe with methamphetamine residue.

The credit card had been stolen in early February. At that time, the card was active and could have been used to buy goods. Shortly thereafter, the card’s owner cancelled the card.

The State charged Sandoval with possession of a stolen vehicle, possession of stolen property in the second degree, identity theft in the second degree, and possession of a controlled substance.

At trial, the court instructed the jury on the elements of possession of stolen property in the second degree. The court told the jury that the State had to prove beyond a reasonable doubt that the stolen property was an access device.

The court defined an access device as, “any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value. In the same instruction, the court stated, “The phrase ‘can be used’ refers to the status of the access device when it was last in possession of its lawful owner, regardless of its status at a later time.

The jury convicted Sandoval on all charges except identity theft in the second degree. The
State dismissed that charge.

Sandoval appealed on the argument that an access device must be able to obtain something of value at the time it is found on a defendant, not at the time it was last in the possession of its lawful owner.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that RCW 9A.56.010(1) defines “access device” as any card, plate, code, account number, or other means of account access that can be used alone or in conjunction with another access device to obtain money, goods, services, or anything else of value, or that can be used to initiate a transfer of funds, other than a transfer originated solely by paper instrument.

Here, the Court of Appeals upheld the trial court’s definition containing the phrase “can be
used,” a phrase which is not statutorily defined. It reasoned that under State v. Schloredt, it was irrelevant whether a victim cancelled his or her account prior to a defendant’s arrest in determining whether stolen credit cards were “access devices” under the statute. Similar to the facts in Schloredt, it was irrelevant that the credit cards Ms. Sandoval possessed were cancelled by its lawful owner.

Also, the Court of Appeals rejected Sandoval’s argument that she received ineffective assistance of counsel when her attorney failed to request a jury instruction for unwitting possession as an affirmative defense for her possession of a controlled substance charge.

The Court reasoned that the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee the right to effective assistance of counsel. Furthermore, in an ineffective assistance of counsel claim, prejudice exists if there is a reasonable probability that, except for counsel’s errors, the results of the proceedings would have differed.

Here, the Court reasoned that Sandoval testified that she obtained the credit card and methamphetamine pipe at the same time, and both items were found on Sandoval in the same location. Therefore, if the jury found that the State carried its burden in showing beyond a reasonable doubt that Sandoval knowingly possessed the credit card, then it is doubtful that Sandoval could have carried her burden to show, by a preponderance of the evidence, that she unwittingly possessed the methamphetamine pipe.

“Thus, we conclude that it was not reasonably probable that the jury would have found Sandoval not guilty of possession of a controlled substance if they had been instructed on the unwitting possession defense.”

Therefore, the Court reasoned that Sandoval was not prejudiced by her counsel’s failure to request the instruction. Because Sandoval has not met her burden to prove prejudice, her ineffective assistance of counsel claim fails.

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

Expert Witnesses & Meth

Image result for methamphetamine aggression

In State v. Richmond, the WA Court of Appeals held that a defense expert witness’s proposed testimony regarding the effects of methamphetamine was properly barred at trial because the expert never met or examined the victim and increased aggression is only one possible effect of methamphetamine ingestion.

BACKGROUND FACTS

Dennis Higginbotham went to Joseph Richmond’s property with two other individuals, Veronica Dresp and Lonnie Zackuse. Ms. Dresp was Mr. Richmond’s estranged girlfriend. Ms. Dresp had asked Mr. Higginbotham and Ms. Zackuse to accompany her to Mr. Richmond’s property so that she could remove some of her belongings.

A verbal argument ensued between Mr. Richmond and Mr. Higginbotham. After the verbal argument, Mr. Richmond went into his house. His return to the house was a relief. It appeared the hostility had come to an end.

Unfortunately, this turned out not to be true. Instead, Mr. Richmond ran out of his house, armed with a two-by-four piece of lumber that was nearly four feet in length. Mr. Richmond and Mr. Higginbotham then started exchanging more words. Mr. Richmond warned Mr. Higginbotham not to come any closer to him. When Mr. Higginbotham took a step forward, Mr. Richmond struck Mr. Higginbotham with the two-by-four. According to Ms. Dresp and Ms. Zackuse, Mr. Richmond held the two-by-four like a baseball bat and swung it at Mr. Higginbotham’s head. After he was hit, Mr. Higginbotham spun around and fell face first on the ground.

When emergency personnel arrived at the scene, it was determined Mr. Higginbotham had suffered severe head trauma. He was unconscious and eventually transported to
Harborview Medical Center in Seattle. He died shortly thereafter.

Mr. Richmond was charged with second degree murder.

Mr. Richmond lodged a self-defense theory against the State’s murder charges. In support of this theory, Mr. Richmond sought to introduce testimony from several experts. One of the experts was David Predmore. Mr. Predmore was offered to testify about the general effects of methamphetamine consumption on human behavior. According to the defense, this testimony was relevant because high levels of methamphetamine had been found in Mr. Higginbotham’s system at the time of his death.

Although Mr. Richmond was not aware of Mr. Higginbotham’s methamphetamine consumption at the time of the assault, the defense theorized that Mr. Predmore’s testimony was relevant to corroborate Mr. Richmond’s claim that Mr. Higginbotham was behaving aggressively the night of the attack. However, the trial court excluded Mr. Predmore’s testimony as speculative and irrelevant. The jury convicted Mr. Richmond of second degree murder. He appealed.

ISSUE

On appeal, the issue was whether the trial court violated Mr. Richmond’s constitutional right to present a defense by excluding his expert’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

“Mr. Richmond argues the trial court violated his constitutional right to present a
defense by excluding expert testimony,” said the Court of Appeals. “We disagree.”

The Court of Appeals reasoned that Evidence Rule 702 governs the admissibility of expert testimony. “Under this rule, a witness may provide expert opinion testimony to the jury if (1) the witness is qualified as an expert, and (2) the witness’s testimony would help the trier of fact,” said the Court of Appeals.

“Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. A proposed expert’s testimony is not helpful or relevant if it is based on speculation.”

Furthermore, the Court of Appeals reasoned that the trial court properly excluded Mr. Predmore’s proposed testimony regarding the effects of methamphetamine because it was not shown to be potentially helpful to the jury. “Mr. Predmore had never met or examined Mr. Higginbotham. He had no basis to assess how Mr. Higginbotham’s body may have processed methamphetamine,” said the Court of Appeals. It further reasoned that according to Mr. Predmore’s proposed testimony, methamphetamine can have a wide range of effects. Increased aggression is only one possibility. “It is therefore nothing but speculation to connect Mr. Higginbotham’s methamphetamine use with Mr. Richmond’s claim of victim aggression,” said the Court of Appeals. “The evidence was properly excluded, consistent with long standing case law.”

With that, the Court of Appeals upheld the conviction.

Please contact my office if you, a friend or family member are charged with a crime after responding in self-defense. Hiring competent and experienced counsel is the first step toward receiving a just resolution.

The Particularity Requirement for Search Warrants

Image result for cell phone search

In State v. McKee, the WA Court of Appeals held that a search warrant that authorized the police to search and seize a large amount of cell phone data, including images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, and tasks, and authorized a “physical dump” of “the memory of the phone for examination,” violated the particularity requirement of the Fourth Amendment.

BACKGROUND FACTS

In 2012, A.Z. lived with her older brother and her mother in Anacortes. All parties were addicted to heroin, methamphetamine or both. A.Z. was using heroin and methamphetamine on a daily basis during 2012.

In January 2012, A.Z.’s mother introduced A.Z. to 40-year-old Marc Daniel McKee during a “drug deal” for methamphetamine. McKee started spending a lot of time with the family and supplied them with methamphetamine. They would often “get high” together. At the end of June, McKee left to go to Alaska for work.

When McKee returned two months later, he immediately contacted A.Z. McKee told A.Z. he had heroin and methamphetamine. McKee and A.Z. spent three days together at a Burlington motel using the drugs and engaging in consensual sex.

Eventually, A.Z’s mother confronted McKee about the sexual encounters between A.Z. and McKee. Bringing another male with her A.Z.’s mother confronted McKee at a hotel room, beat him up, took his cell phone, and pulled A.Z out of the room. Later, A.Z.’s mother scrolled through the phone. She found pictures and videos of her daughter A.Z tied naked to a bed as well as videos of McKee and A.Z. having sex.

After A.Z.’s mother looked at the video clips and photographs on the cell phone, she contacted the Mount Vernon Police Department. On October 30, A.Z.’s mother met with Detective Dave Shackleton. A.Z.’s mother described the video clips and photographs she saw on the cell phone. She left the cell phone with Detective Shackleton. Later, A.Z.’s mother contacted Detective Shackleton to report that J.P., another minor female, told her that McKee gave J.P. drugs in exchange for sex. Brickley obtained a restraining order prohibiting McKee from contacting A.Z.

Application for a Search Warrant

On October 31, Detective Jerrad Ely submitted an application and affidavit (Affidavit) in support of probable cause to obtain a warrant to search McKee’s cell phone to investigate the crimes of “Sexual Exploitation of a Minor RCW 9.68A.040” and “Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct RCW 9.68A.050.” The court issued a search warrant.

The warrant allowed the police to obtain evidence from the cell phone described as an LG cell phone with model VX9100 currently being held at the Mount Vernon Police Department for the following items wanted:

“Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/internet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.”

The search warrant authorizes the police to conduct a “physical dump” of the memory of
the cell phone for examination. On November 7, 2012, the court filed a “Receipt of Execution of Search Warrant.” The Receipt of Execution of Search Warrant states the police conducted a “Cellebrite Dump” of the cell phone on November 6. Cellebrite software obtains all information saved on the cell phone as well as deleted information and transfers the data from the cell phone to a computer.

Criminal Charges

The State charged McKee with three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the first Degree in violation of RCW 9.68A.070(1) based on the three cell phone video clips, one count of Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct in the Second Degree in violation of RCW 9.68A.070(2) based on the cell phone photographs, one count of Commercial Aex Abuse of J.P. as a minor in violation of RCW 9.68A.100, three counts of Distribution of Methamphetamine and/or Heroin to a person under age 18 in violation of RCW 69.50.406(1) and .401(2), and one count of Violation of a No-Contact Order in violation of RCW 26.50.110(1).

Motion to Suppress

McKee filed a motion to suppress the evidence the police seized from his cell phone. McKee asserted the search warrant violated the Fourth Amendment requirement to describe with particularity the “things to be seized.” McKee argued the warrant allowed the police to search an “overbroad list of items” unrelated to the identified crimes under investigation. McKee also argued probable cause did not support issuing a search warrant of the cell phone for the crime of dealing in depictions of a minor engaged in sexually explicit conduct.

The court entered an order denying the motion to suppress. The court found the allegations in the Affidavit supported probable cause that McKee committed the crimes of sexual exploitation of a minor and dealing in depictions of minors engaged in sexually explicit conduct. The court concluded the citation to the criminal statutes established particularity and the search warrant was not overbroad.

At trial, the jury found McKee not guilty of distribution of methamphetamine and/or heroin. The jury found McKee guilty as charged on all other counts.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals held that the search warrant violated the particularity requirement of the Fourth Amendment, and that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

The Court reasoned that the Fourth Amendment was adopted in response to indiscriminate searches and seizures conducted under the authority of ‘general warrants.’

“The problem posed by the general warrant is not that of intrusion per se, but of a general,
exploratory rummaging in a person’s belongings,” said the Court. “The Fourth Amendment
addresses the problem by requiring a particular description of the things to be seized . . .

The court further reasoned that by limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and would not take on the character of the wide-ranging exploratory searches the Framers of the Constitution intended to prohibit.

“The degree of specificity required varies depending on the circumstances of the case and the types of items,” said the Court. “The advent of devices such as cell phones that store vast amounts of personal information makes the particularity requirement of the Fourth Amendment that much more important.” The Court also quoted language from the U.S. Supreme Court’s Riley v. California and the WA Supreme Court’s State v. Samilia; both cases strongly supporting the notion that cell phones and the information contained therein are private affairs because they may contain intimate details about individuals’ lives.

“Here, the warrant cites and identifies the crimes under investigation but does not use the language in the statutes to describe the data sought from the cell phone,” said the Court. “The warrant lists the crimes under investigation on page one but separately lists the “Items Wanted” on page two.” Consequently, the Court reasoned that the description of the “Items Wanted” was overbroad and allowed the police to search and seize lawful data when the warrant could have been made more particular.

Furthermore, the Court held that the warrant in this case was not carefully tailored to the justification to search and was not limited to data for which there was probable cause. The warrant authorized the police to search all images, videos, documents, calendars, text messages, data, Internet usage, and “any other electronic data” and to conduct a “physical dump” of “all of the memory of the phone for examination.”

“The language of the search warrant clearly allows search and seizure of data without regard to whether the data is connected to the crime,” said the Court. “The warrant gives the police the right to search the contents of the cell phone and seize private information with no temporal or other limitation.” As a result, reasoned the Court, there was no limit on the topics of information for which the police could search. Nor did the warrant limit the search to information generated close in time to incidents for which the police had probable cause:

“The warrant allowed the police to search general categories of data on the cell phone with no objective standard or guidance to the police executing the warrant. The language of the search warrant left to the discretion of the police what to seize.”

With that, the Court of Appeals held the search warrant violated the particularity requirement of the Fourth Amendment. The Court reversed and dismissed the four convictions of Possession of Depictions of a Minor Engaging in Sexually Explicit Conduct.

My opinion? For the most part, courts look dis favorably on the searches of people’s homes, cars, phones, etc., unless the probable cause for the search is virtually overwhelming, and/or an emergency exists which would spoil the evidence if it was not gathered quickly; and/or a search warrant exists. Even when search warrants are drafted and executed, they must be particular to the search. In other words, law enforcement can’t expect that a general, non-specific search warrant is going to win the day for them and allow a fishing expedition to take place.

Here, the Court of Appeals correctly followed the law. In this case, limiting the search to the crimes cited on the first page of the warrant was insufficient. The descriptions of what to be seized must be made more particular by using the precise statutory language to describe the materials sought.

Please contact my office if you, a friend or family member’s person, home, vehicle or cell phone was searched by police and evidence was seized. The search may have been unlawfully conducted in violation of your Constitutional rights.

Witness Tampering

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In State v. Gonzalez, the WA Court of Appeals decided there was sufficient evidence that the defendant attempted to influence a witness to testify falsely where he asked the witness to give a different story than the one she told the police.

BACKGROUND FACTS

The defendant Leonel Gonzalez was in a relationship with Nona Hook for several years. Hook lived with her mother, Carol Salyers, and several other family members, and Gonzalez was frequently in the home. Salyers owned a Jeep and permitted Hook, but not Gonzalez, to drive it.

In the early morning hours of September 21, Gonzalez called Hook, and she asked him if
he had taken her Jeep. According to Hook, Gonzalez denied knowing anything about the Jeep, but he told her that he was “coming home.” At some point after this call, someone contacted the police.

The police were waiting when Gonzalez arrived at Hook’s home in the Jeep. Upon seeing
the police, Gonzalez drove away, jumped out of the Jeep while it was still moving, and attempted to flee on foot. The Jeep rolled into and damaged a parked vehicle. The police caught and arrested Gonzalez. Following his arrest, officers discovered a white substance that later tested positive for both methamphetamine and cocaine in Gonzalez’s back pocket.

Jail Call

While in jail following his arrest, Gonzalez called Hook. This call was recorded.

During the call, Gonzalez insisted that Hook listen to him and told her that some people
were trying to contact her and that when his “investigator” or “somebody” called her, she was to tell them that she “gave him permission.” Hook responded, “Tell them that I gave you permission,” and Gonzalez interrupted her and told her to “listen” and said adamantly, “That’s it.”

Hook responded by chuckling and saying, “That’s gonna be a little bit hard for me to do.”  Gonzalez appears to respond, “Well, then don’t do it.” The rest of Gonzalez’s response is unclear.

Hook replied, “I mean, for one thing, I was—you already know what the deal was.” And Gonzalez told her aggressively to “listen” and that they were not “going to talk about all that.” He then stated, “You know what to do, so.” Gonzalez and Hook then talked about when Hook could visit so they could talk about their relationship and whether they would marry even if he was in prison. During this part of the conversation, Hook commented about how hard it was for her to be away from him, and Gonzalez responded by asking her whether she “would rather deal with” 6 or 15 years.

Criminal Charges

The State charged Gonzalez with theft of a motor vehicle, unlawful possession of a controlled substance (methamphetamine), hit and run, and tampering with a witness.

Jury Trial & Appeal

At trial, Ms. Hook testified about the jail calls. Ultimately, the jury found Gonzalez guilty of unlawful possession of a controlled substance and tampering with a witness.

Gonzalez appealed under arguments that the evidence was insufficient to support the witness tampering conviction because (1) he asked Hook to speak to his investigator and never discussed her testimony and (2) there was no evidence he was asking Hook to testify falsely.

COURT’S ANALYSIS & CONCLUSIONS

Gonzalez argues that the State failed to prove that he was attempting to influence Hook to
testify falsely because he asked her to tell the defense investigator only something different than she told the police. He asserts that speaking to the defense investigator is not the equivalent of testimony.

“We disagree,” said the Court of Appeals. The Court reasoned that Gonzalez’s request that Hook tell the defense investigator a different story than she told the police would have little effect if it did not also imply that Hook needed to also be willing to testify consistently with what she told the defense investigator. “Thus, a rational finder of fact could have easily found that Gonzalez was attempting to influence Hook’s potential testimony,” said the Court.

Gonzalez also argued that there was insufficient evidence to establish that he asked Hook
to testify falsely.

“Again, we disagree,” said the Court of Appeals. “At no point in her testimony did Hook testify that she had given Gonzalez permission to take the Jeep on September 18th,” said the Court. Instead, she testified that she dropped Gonzalez off, drove the Jeep home and parked it, and left the keys near the back door. Although Gonzalez came into her bedroom the next morning, Hook did not testify that he asked for or that she gave him permission to drive the Jeep.

The Court of Appeals further reasoned that taking this evidence in the light most favorable to the State, the jury could find that Hook’s testimony established that Gonzalez took the Jeep without her permission and that Hook’s testimony was truthful.

“Given that Gonzalez asked Hook to state that she had given him permission, a rational finder of fact could have easily found that Gonzalez was asking Hook to testify falsely. Accordingly, Gonzalez’s insufficient evidence arguments fail, and we affirm his witness tampering conviction.”

In sum, the Court of Appeals affirmed Gonzalez’s convictions, but remanded for re-sentencing on the unlawful possession of a controlled substance conviction consistent with this opinion.

Corpus Delicti & Drugs

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In State v. Hotchkiss, the WA Court of Appeals held that, despite the corpus delicti defense, the discovery of 8.1 grams of methamphetamine and $2,150 in cash during a search of the defendant’s home, provided sufficient corroborating evidence of possession of methamphetamine with intent to deliver.

BACKGROUND FACTS

Law enforcement officers executed a search warrant on Hotchkiss’s residence in Vancouver. During the search, Hotchkiss admitted that he had an “8-ball” – approximately 3.8 grams – of methamphetamine in a safe and provided the officers with the code. He also stated that he procured about one 8-ball of methamphetamine every day and broke it down, and estimated that he had about 10 customers. Inside the safe, officers found 8.1 grams of methamphetamine and $2,150 in cash.

The State charged Hotchkiss with possession of a controlled substance with intent to deliver – methamphetamine. At a bench trial, officers testified about finding the methamphetamine and cash and about Hotchkiss’s statement that he had 10 methamphetamine customers. After the State rested, Hotchkiss requested that the trial court disregard the testimony regarding his incriminating statement under the corpus delicti rule because there was insufficient evidence corroborating his statement. The court reserved its ruling on the corpus delicti issue.

Hotchkiss then testified that he and a woman who lived with him used three or four grams of methamphetamine per day. He also testified that the cash in the safe came from other people living at his residence, who paid rent of $1,150 per month in cash, and from his employment. He claimed that any statement he made to the officers about selling methamphetamine referred to his actions 20 years earlier.

On rebuttal, an officer with extensive experience dealing with methamphetamine users
and sellers testified that a typical methamphetamine dose is 0.2 to 0.4 grams. He also testified that it would be very rare that someone would possess eight grams of methamphetamine solely for personal use.

The trial court found that the quantity of methamphetamine in Hotchkiss’s possession
combined with the amount of cash recovered with the drugs was sufficient corroborating
evidence to satisfy the corpus delicti rule. The court then found Hotchkiss guilty of possession of methamphetamine with intent to deliver. Hotchkiss appeals his conviction.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the corpus delicti rule prevents the State from establishing that a crime occurred solely based on the defendant’s incriminating statement. The State must present corroborating evidence independent of the incriminating statement that the charged crime occurred. Without such corroborating evidence, the defendant’s statement alone is insufficient to support a conviction.

The Court then addressed the question of whether there was enough independent evidence to support the conviction for possession of methampetamine with intent to deliver.

“The general rule is that mere possession of a controlled substance, including quantities greater than needed for personal use, is not sufficient to support an inference of intent to deliver,” said the Court. Here, the State presented evidence that (1) Hotchkiss had 8.1 grams of methamphetamine in his possession; (2) given an average dose size of 0.2 to 0.4 grams, such an amount typically would produce 20 to 40 doses; and (3) it would be very rare for a person to possess that amount merely for personal use.

The Court reasoned that under the general rule, this evidence standing alone would not be sufficient either to convict Hotchkiss of possession of methamphetamine with intent to deliver or to provide corroborating evidence under the corpus delicti rule.

“But the State presented evidence of an additional factor suggestive of intent to deliver –
$2,150 of cash in Hotchkiss’s safe next to the methamphetamine,” said the Court. “This methamphetamine and cash evidence would be sufficient to support a conviction for possession of methamphetamine with intent to deliver.”

With that, the Court of Appeals concluded that the State satisfied the corpus delicti rule and affirmed Hotchkiss’ conviction of possession of methamphetamine with intent to deliver.

My opinion? Corpus Delicti is a tricky defense. It usually works best in cases where there is a gaping hole between the corroborating evidence and the defendant’s statements.

For example, let’s say that police received a 911 call about a red truck driving around in your neighborhood swerving in an out of traffic. The police respond to the call, drive to your neighborhood, and look a for a red truck. They find one parked at your home. They knock on your door. You open the door. You’re intoxicated from drinking alcohol.

“Were you driving?” asked the police.

“Yes,” you say. Police immediately arrest you for DUI.

Corpus delicti would be the appropriate defense in a case like this. Under our current DUI laws, the State must prove that not only were you driving that particular red truck, but that you were under the influence of alcohol when driving. In short, corpus delicti ensures that your statements and admission shall not be used against you in cases where there is a lack of independent evidence supporting your statements.

Please contact my office if you, a family member of friend face criminal charges with weak and/or questionable evidence supporting the charges. No matter what a person’s admissions are, we have the constitutional right to question the sufficiency of the evidence supporting the charges and perhaps argue the corpus delicti defense.

Racial Bias in Media Coverage of the Opioid Crisis vs. Crack Epidemics

Excellent, informative article by Michael Shaw of in the Columbia Journalism Review discusses the clear double standard in the visual framing of the opioid crisis in comparison to the crack cocaine crisis of the 1980’s.

Shaw claims that media coverage of the opioid epidemic—which largely affects suburban and rural whites—portrays it as an outside threat and focuses on treatment and recovery, while stories of heroin in the 1970s, crack-cocaine in the 1980s, and other drug problems that impact urban people of color today have focused on the drug user’s morality.

Photos of the opioid crisis depict well-lit spaces, stress domesticity, and emphasize close-knit communities. In contrast, pictures of urban drug problems have depicted nighttime scenes on seedy streets or portrayed individuals interacting with the police, courts, or jails—often using starker black and white photography. In sum, Shaw argues, “Elected officials, the criminal justice system, and the American media have adopted a ‘kinder and gentler’ tone around the opioid crisis.”

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“A sub-theme of opioid crisis coverage: Many stories showcase children who have been saved by loving grandparents.” Photo from The New York Times, 2016.

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Drug stories about black families in cities present a “narrative of broken homes, addicted babies, mothers depicted as unfit, the engagement of state agencies, and children routinely placed into foster care.” Photo from The Washington Post, 1989.

The racial bias is inescapable. A drug crisis that is largely affecting suburban and rural whites is being treated with a drastically different attitude and approach in words and imagery than those used to characterize heroin use in the 1970s, crack cocaine in the late 1980s, and the drug problem plaguing America’s people of color and urban poor today.

Shaw claims that elected officials, the criminal justice system, and the American media have adopted a “kinder and gentler” tone around the opioid crisis. The attitude and phrasing of a recent New York Times article—titled: “In Heroin Crisis, White Families Seek Gentler War on Drugs”—is both an example and an illustration. As is Time’s just-published photo story “A caring lens on the opioid crisis.” The visual language is just as illuminating. The opioid crisis has been framed as a threat from outside, with drug users facing an “illness or a “disease” rather than a personal moral shortcoming.

 

“You can see in this photo how demonstrators cast addicts who have died from drugs as victims, and in the inset photo, literally as an angel,” says Shaw. “In another photograph, you can see how the same group, FedUp!, has co-opted the quilt as a protest symbol reminiscent of the AIDS crisis.”

Shaw also argues that the largely white drug “epidemic” we’re facing now bears little resemblance to the scenes of squalor, sociopathy, and criminality depicted in this 33-photo Getty package shot in the Bronx and published in June. And photos from the urban “war on drugs” don’t look much different today than they did 30 years ago.

A US Marshal, far left, keeps his pistol trained on suspects as other marshals raid a crackhouse. (AP Photo/Scott Applewhite)

 The photo above by Scott Applewhite, also shot in the Bronx, appeared in 1989. It was published to illustrate an eight-week federal anti-drug initiative characterized by armed police raids on inner city crack houses. Suffice it to say police in general have taken a different approach to white opioid drug users (more on that later).

Over the years, photographers have produced many landmark photo stories and bodies of work about drug addiction. The subjects and the settings have been uniformly harsh, the subjects primarily indigent and wayward, and the environs largely decrepit. Those stories include Larry Clark’s “Tulsa,” shot in the mid-1960s and published in 1971; Jessica Dimmock’s “The Ninth Floor,” shot in the Flatiron District of Manhattan and published in 2007; Michel Du Cille’s Pulitzer Prize winning work in 1988 documenting crack addiction in Miami.

Another important photo story in the canon of addiction is Eugene Richards’s “Cocaine True Cocaine Blue.” The project was shot primarily in New York and Philadelphia from 1988 to 1992 and published in 1994. The Instagram post above captures the visual tone and sensibility of that historical investigation. Notice the difference in tone between the historical work and a opioid story in June in The New Yorker shot by Richards in one West Virginia county.

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This tweet depicts four of six Richards images that illustrated the story. In the top left photo, the girl playing in the yard lives with her grandmother. She lost her father to a heroin overdose. The top right photo shows people running a project that helps place addicts in rehab. The middle photo shows a mother, a recovering addict, showing off her newborn. And the last photo is a doctor who offers free public classes in the use of Narcan, the drug that reverses opioid overdoses.

“What are the larger themes of photo coverage of the opioid crisis, centered on rural and suburban white America, and where do they contrast with coverage of drugs in cities?” asks Shaw. “Photos are almost always shot in color rather than the starker black and white. We typically see daytime or well-lit indoor photos, as opposed to night action on seedy streets or dark alleys.” Shaw further emphasizes that there is minimal engagement with courts, jail, or the police. And there is a stress on domesticity. The photos often are shot at a home, the spaces mostly tidy or pulled together. Bedroom portraits are common.

Opioid stories typically discuss family, extended family, and community.

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This image in the tweet above appeared in The New York Times “gentler drug war” story mentioned above. It’s a photo of Courtney Griffin, who died of a heroin overdose in 2014. The picture in the center show Courtney closely flanked by her sister and her mother. Emphasizing love and closeness, as well as nostalgia and irony, the photo exemplifies how the opioid imagery stays away from pain, despair, isolation, and, of course, relationship problems.

Victims are often depicted in a sympathetic light, with an emphasis on family bonds and survivor grief. A sub-theme of opioid crisis coverage: Many stories showcase children who have been saved by loving grandparents.

In the photo accompanying a Times story, notice the child safe in her bedroom, the letters on the wall spelling out her name, reinforcing identity and continuity. This pattern is a dramatic contrast to the narrative of broken homes, addicted babies, mothers depicted as unfit, the engagement of state agencies, and children routinely placed into foster care that is so characteristic of drug stories focused on black families in cities.

 This photo by Jahi Chikwendiu appeared in a Washington Post article highlighting a recovery house in Bowie, Maryland. Opioid stories consistently stress close-knit towns and support communities.This is a reunion picnic with residents, graduates, family members, and supporters. Of course, the bonding and intimacy in these photos obscure the alienation and the emotional isolation that go hand in hand with addiction.
“The issue of responsibility is largely absent until the theme of recovery comes into play,” says Shaw. At that point, users and addicts are often shown exercising remarkable will and winning the battlewith the disease. Photos stress dignity, help-seeking, coping skills, and self-reliance in the face of poverty and other challenges.

Paul Wright shows a picture of himself in the hospital after a near fatal overdose in 2015, Thursday, June 15, 2017, at the Neil Kennedy Recovery Clinic in Youngstown, Ohio. (AP Photo/David Dermer)

Consider this AP photo of a young man showing a picture of himself after a near-fatal overdose in 2015. It’s like it can’t be the same person, the Nike “Just Do It” accentuating a sense of agency over addiction.

This photo was featured in a major article on the opioid crisis published this month by The New York Times Magazine. Faith, love, and patriotism are themes that often lace photos of the opioid crisis.

 

In this photo, we see a look of conviction on the man’s face and an American flag in the background. This formerly homeless man started a wildly popular Facebook group after his friend died of heroin and is now a sought after drug counselor. What’s more American than bringing nationalism, patriotism, and a sense of can-do to a problem otherwise riddled with shame?

When you do see photos of actual drug use, the images are typically clinical and objective, as opposed to desperate and dingy. After all the crafted photojournalism like the images you see above, it’s jarring to see these user pictures more in the style of stock photography.

 

This photo by John Moore is part of a story about New London, Connecticut, which is suffering an unprecedented heroin and opioid pain pill epidemic. You’ll notice that the user wears a crucifix, a symbol of faith and a visual buffer with the drug use. Unlike other drug scourges, where photos of users using were common and showed faces, many opioid portraits hide the users’ faces. We hardly ever see anguish, craving, or the high, the rush, or the stupor. The subjects look as if they are doing a routine task, like brushing their teeth.

Compare this to a frame from a story about New York City in May 2015 on the rise of synthetic marijuana, or K2, in New York City.

 

The above photo by Spencer Platt shows a black male drug user unceremoniously splayed out on an East Harlem sidewalk.

“Of course, there are exceptions,” says Shaw.

View image on TwitterView image on TwitterView image on TwitterView image on Twitter
 This tweet captures several photos from a St. Louis Post-Dispatch story that the public found widely disturbing. Administration of heroin in most opioid stories is visualized in a casual way. In the unusual instance that depiction is blatantly graphic or inordinately casual though, a much stronger impact has been elicited. In this case, a couple is photographed shooting up at home, the woman six months pregnant. Beyond the act of administration, however, the rest of the imagery still conforms to many of the domestic norms described above. The February 6, 2017 photo was made in the kitchen, as the couple apparently prepared a meal. The place looks otherwise spotless; both wear clean clothes, and the dishes on the far counter seem to be washed. In the accompanying images by photojournalist David Carson, the drug use fits a larger routine. It might be a horror, but it’s a particularly antiseptic and contained one.

In light of campaign politics and now the debate over healthcare, geography has been almost as prominent a theme in the opioid crisis as demographics. A great deal of the towns are down-and-out, suffering from poverty and a loss of industry. In many cases, however, the photography softens the blow.

“The visual narrative around the opioid crisis has largely sidestepped criminality,” says Shaw. In fact, many opioid stories depict police as social advocates fighting for the community, as exemplified by the July New York Times Magazine cover story. In some cases, they are even a lifeline for users thanks to first responders who carry the drug Naloxone for reversing an overdose.

 

Contrast this August 2015 arrest photo from East Harlem, the charges unspecified, (shot in this case by Spencer Platt for Getty Images), with the NYPD Instagram post below, from May.

As a form of public service announcement, the two officers promote their use of Naloxone spray accompanied by an account of how they “saved a man from a potentially fatal overdose” just the week before. In fact, the visual stories hardly address the dealers and distributors of opioids at all.

“I’m not sure what the race or ethnicity was of the person the NYPD rescued, but a thorough news image search reveals that most articles about Narcan or Naloxone either feature white drugs users or addicts, photos of white people who are being resuscitated (such as in this slideshow), or else they feature trainings or simulations with white volunteers and, almost exclusively, white mannequins,” says Shaw. “There is a clear double standard in the visual framing of the opioid crisis.

Shaw points out that the gentler tone presents a marked departure from historical drug coverage, and the bias in the depiction of the problem as it plagues urban people of color feels “baked in.” Shaw further states that what is even more concerning is the prospect for closing this perceptual gap. Besides racial disparity in journalism, the dog-whistle politics of President Trump is encouraging divisiveness and driving a deeper wedge. Still worse, the GOP leadership is patronizing addicts and states with proportionally larger populations of afflicted rural white populations with the promise of increased prevention and treatment funding as part of its argument for repealing Obamacare.

My opinion? Excellent way to bring truth to the surface. Thank you, Mr. Shaw, for shining light in the darkness.