Category Archives: misdemeanor

Consensual Seizures

Bellingham Defense Attorney, Constitutional Rights, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

MTS Says Its Officers Aren't Bound by New State Use-of-Force Law

In State v. Meredith, the WA Court of Appeals held that a bus passenger consents to a warrantless search and seizure consisting of a bus fare enforcement officer requests the passenger provide proof of payment.

BACKGROUND FACTS

The defendant Mr. Meredith was riding the Swift regional transit bus in Everett late one morning. Two officers from the Snohomish County Sheriff’s Office boarded to conduct fare enforcement. When conducting fare enforcement, officers would board a bus at a stop and then ask individual passengers for proof of payment while the bus was driving from one stop to the next. A “chase vehicle” would follow the bus to help with identifying and processing anyone ordered off the bus for nonpayment.

Officer Dalton moved to the back of the bus. He began working his way forward and saying “proof of payment or ORCA card” to each passenger in a conversational tone. His partner moved to the front of the bus and worked backward. The bus drove to its next stop while the officers checked for proof of payment.

Officer Dalton requested “proof of payment or ORCA card” from Meredith, who began to check his pants and backpack. Failure to provide proof of payment could result in a notice of infraction or arrest. The bus continued along its route, and Meredith searched for four or five minutes without producing proof of payment. Officer Dalton ordered him to disembark at the next stop, and they left the bus together.

Officer Dalton asked Meredith for his name and identification. Meredith gave a fake name. Officer Dalton radioed dispatch to run the name, and it produced no returns in either Washington or Colorado. Officer Dalton suspected Meredith gave a fake name. Officer Zelaya arrived to help determine Meredith’s identity.

Officer Zelaya used a mobile fingerprint reader to scan Meredith’s fingerprints. He learned Meredith’s real name and that he had two outstanding felony warrants. Meredith was arrested on his warrants and for committing third degree theft of services for nonpayment of fare. He was charged with Making a False Statement to a Public Servant.

Pretrial, Meredith moved to suppress evidence resulting from Officer Dalton’s fare enforcement. The trial court denied the motion. A jury found Meredith guilty of making a false statement. Meredith appealed under arguments that his constitutional rights were violated by the officers when they executed an unauthorized and warrantless seizure.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals said the Washington Constitution  provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Furthermore, the WA Constitution protects against unauthorized seizures by government, despite not using the word “seize.”

However, the Court emphasized that Meredith did not allege his privacy was violated. It reasoned that the analysis does not not depend upon the “privacy” of information requested when police merely request proof of payment on public transit. Therefore, a person can be unlawfully seized without a violation of their privacy.

Next, the Court analyzed whether Meredith validly consented to being seized. “We consider whether his consent was voluntary, whether the seizure was limited to the scope of the consent granted, and whether consent was granted by a party with authority to do so,” said the Court. “We determine whether consent was voluntary by considering the totality of the circumstances from the perspective of a reasonable—meaning innocent—person.”

“Here, Meredith freely chose to contract with Swift Transit for transportation. He agreed to pay and provide proof of payment. And as a reasonable rider, he necessarily understood his duty to pay his fare and provide proof of payment when asked. Thus, like the civilian base visitor in Farkas, Meredith was aware of the possible seizure of his person and consented to it.” ~WA Court of Appeals

The Court concluded by saying Meredith voluntarily consented to Officer Dalton’s initial contact. With that the Court affirmed Meredith’s conviction.

Please review my Search & Seizure Legal Guide and 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.

Crime Increased in 2020

Bellingham Defense Attorney, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

What Can Be Done About the Increase in Violent Crime in Large Cities? | American Police Officers Alliance

Overall crime in Washington State increased in 2020 according to a report released this week by the Washington Association of Sheriffs and Police Chiefs (WASPC). The annual report tracks crime and arrest data from contributing law enforcement agencies throughout Washington.

The Crime in Washington 2020 report is compiled with data from 233 state, county, municipal, and Tribal agencies and is published in conjunction with the FBI, which will compile and release national data based upon state reports later this year. The report is designed to give residents, elected officials, and law enforcement data-driven information about crime in their communities.

The report shows that in 2020 murders were up almost 47% and have increased overall 67% since 2016. Manslaughter went up 100%, fraud increased by 131%, while drug and narcotic offenses, and reported hate crimes were down slightly. The total number of commissioned officers statewide was down from 1.24 per thousand to 1.19 per thousand people. Washington is ranked 51st out of the 50 states and District of Columbia for the number of officers per thousand people. Reported cases of officers assaulted was up 6% in 2020 and has increased 67% since 2016.

FACTS AT A GLANCE

  • The total population for the State of Washington is 7,656,066.
  • There were 302 murders in 2020; this is an increase of 46.6% compared to 206 murders in 2019. Murders have increased overall 66.9% since 2016.
  • There were 59,134 fraud offenses in 2020; this is an increase of 131.3% compared to 25,562 fraud offenses in 2019. The significant increase in fraud activity in 2020 was due in part to fraudulent unemployment claims related to the pandemic.
  • A total of 468 hate crime incidents were reported, down slightly from 2019 (a decrease of 13.1%).
  • A total of 22,070 persons were arrested for DUI, including 172 juveniles.
  • Drug and narcotic abuse incidents were lower in 2020 (a decrease of 22.7%).
    • There were 8,200 arrests for Drug/Narcotic violations; of that number 4.2%
      were persons under 18 years of age.
    • Possessing/concealing of heroin constituted 23.6% of the total drug abuse incidents; the distributing/selling of heroin accounted for 3.5% of incidents (type of criminal activity can be entered three times in each incident).
  • Full-time commissioned officers totaled 11,231.
  • There was a total of 2,047 assaults on law enforcement officers, this is an increase of 6.2% compared to 1,927 assaults in 2019.
  • Two officers were killed in the line of duty, Washington State Trooper Justin Schaffer and Bothell Officer Jonathan Shoop.
  • There was a total of 59,289 Domestic Violence offenses reported; 13,909 of these offenses were Violations of Protection or No Contact Orders.
  • Domestic Violence offenses made up 49.7% of all Crimes Against Persons and 2.7% of all Crimes Against Property.
  • There were 5,432 Sexual Offenses (forcible and non-forcible) reported in 2020. There was a total of 5,432 victims in these incidents: with a total of 5,026 offenders.

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.

Operation Dry Water

Bellingham Defense Attorney, Boating Under the Influence, misdemeanor, Mount Vernon Criminal Defense Attorney, Operation Dry Water, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

B.U.I. - Boating Under The Influence

The Washington State Parks released a News Flash regarding Operation Dry Water — a nationally coordinated effort that focuses on Boating Under the Influence (BUI) awareness and enforcement. In short, boaters will notice an increase in patrols July 2- 4, across Washington state.

The Washington State Parks Boating Program, safety advocates and law enforcement agencies are asking boaters to help keep everyone safe by not consuming alcohol or marijuana while out on the water — especially when operating a boat or paddle craft.

“Operating any vehicle or vessel under the influence is illegal and unsafe,” said Matt Stowers, Marine Law Enforcement coordinator for the Boating Program. “However, it’s arguably more dangerous on the water. Research shows it takes less alcohol to impair you on the water than it does on land — one beer on land equals three beers on the water.”

According to the U.S. Coast Guard, Boating Under the Influence is the leading known contributing factor in fatal recreational boating accidents.

In Washington state, it’s illegal to use any substance that impairs a person’s ability to operate a boat. Similar to DUI, Washington BUI law applies to all boats, including kayaks, canoes, rowboats, stand-up paddleboards, and inflatable fishing rafts. Some key things for boaters to know:

  • State law allows law enforcement officers to require boaters suspected of operating a boat while intoxicated to submit to a breath or blood test.
  • Refusing to submit to a test is a civil infraction with a maximum fine of $2,050.00.
  • The penalty for operating a boat under the influence is a gross misdemeanor punishable by a maximum fine of $5,000 and 364 days in jail.
  • Additionally, a BUI is considered a prior offense if there are later convictions for driving under the influence (DUI).

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.

Exigent Circumstance DUI

Bellingham Defense Attorney, DUI, Exigent Circumstances, Fourth Amendment, misdemeanor, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

William's Wooden Garage (Essex) | Quick-garden.co.uk

In Lange v. California, the United States Supreme Court held that the pursuit of a fleeing misdemeanor DUI suspect does not always qualify as an Exigent Circumstance justifying a warrantless entry into a person’s garage.

FACTUAL BACKGROUND

One night, the Defendant Mr.  Lange drove by a California highway patrol officer while playing loud music. The officer followed Lange and soon after turned on his overhead lights to signal that Lange should pull over. Rather than stopping, Lange drove a short distance to his driveway and entered his attached garage.

The officer followed Lange into the garage. He questioned Lange and, after observing signs of intoxication, put him through field sobriety tests. A later blood test showed that Lange’s blood-alcohol content was three times the legal limit. The State charged Lange with the misdemeanor of DUI.

Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The California Court of Appeal also affirmed. It reasoned that the pursuit of a suspected misdemeanant was always permissible under the exigent circumstances exception to the warrant requirement. The California Supreme Court denied review. The United States Supreme Court (USSC) granted it.

ANALYSIS & CONCLUSIONS

The USSC held that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home.

The Court began by saying the Fourth Amendment ordinarily requires that a law enforcement officer obtain a judicial warrant before entering a home without permission. But an officer may make a warrantless entry when the exigencies of the situation, considered in a case-specific way, create a compelling need for official action and no time to secure a warrant. The Court has found that such exigent circumstances may exist when an officer must act to prevent imminent injury, the destruction of evidence, or a suspect’s escape.

The Court reasoned that misdemeanors run the gamut of seriousness, and they may be minor. States tend to apply the misdemeanor label to less violent and less dangerous crimes. Furthermore, it reasoned that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry.

“Add a suspect’s flight and the calculus changes—but not enough to justify a categorical rule,” said the Court. It further reasoned that in many cases, flight creates a need for police to act swiftly. But no evidence suggests that every case of misdemeanor flight creates such a need.

“When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry.” ~United States Supreme Court.

The Court followed up by saying In short, the common law did not have — and does not support — a categorical rule allowing warrantless home entry when a suspected misdemeanant flees.  With that, the Court vacated Mr. Lange’s criminal conviction.

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

New Whatcom County District Court Judge To Be Appointed

Bellingham Defense Attorney, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Federal Judge Denies Trump Lawsuit In Wisconsin | Wisconsin Public Radio

News reporter Robert Mittendorf of the Bellingham Herald reports that Whatcom County Council members will soon appoint a new District Court judge. Applications are being accepted for a vacancy on the Whatcom County District Court that opened this month when Judge David Grant recently retired before his term ended.

Whatcom County District Court consists of two judges, an appointed commissioner and their staff. The court hears cases that include criminal misdemeanors, general civil actions and small claims, infractions including traffic and code violations, and miscellaneous other cases, according to the Whatcom County website.

Grant was a deputy prosecuting attorney in Whatcom County for 18 years before his appointment to the District Court bench in 2004, according to elections records. He ran unopposed in 2006, 2010, 2014 and 2018.

“With the aid of jail staff and administration, the (District) Court has been able to implement an array of alternatives to traditional incarceration,” Grant wrote in the 2018 voter pamphlet.

“Sentenced offenders typically serve sentences on electronic home detention or on community service or work programs. For those requiring some form of pretrial supervision, many are released pending trial with minimally invasive forms of electronic or personal reporting alternatives delivered through jail or probation staff. I am proud to be a part of this effort.” ~Judge David Grant

Judge Grant was an excellent judge. I’ve had numerous trials before him, the most memorable ones involving  allegations of Assault and Domestic Violence. Judge Grant ruled with empathy, discipline, humor and evenhandedness. I truly enjoyed conducting trials in his courtroom. Judge Grant, you’ll be missed!

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.

Openly Carrying A Sword

Bellingham Defense Attorney, Dangerous Weapon, misdemeanor, Mount Vernon Criminal Defense Attorney, Necessity Defense, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Austin, TX now with open carry swords - Album on Imgur

In Zaitzeff v. City of Seattle, the WA Court of Appeals held that while a sword is  constitutionally protected as an “arm,” the Defendant’s conviction for violating a Seattle’s Ordinance prohibiting the carrying of a dangerous weapon was valid.

BACKGROUND FACTS

In May 2018, Mr. Zaitzeff walked around Green Lake Park with a sheathed sword hanging from his neck. A citizen called 911. The caller said Zaitzeff was wearing a thong, approaching women, and taking photos of them. When police officers arrived, they confirmed he had a sword, which measured about 24 inches long.

Zaitzeff acknowledged he was aware of the ordinance against fixed blade knives and that he was not hunting, fishing, or going to or from a job requiring a sword. The officers took the sword and cited him.

The City charged Zaitzeff with Unlawful Use of Weapons under SMC 12A.14.080(B). Zaitzeff moved to dismiss the charge, challenging the ordinance as unconstitutional as applied to his case. The Seattle Municipal Court denied the motion, concluding that the sword is not a constitutionally protected arm. Zaitzeff went to trial. Despite arguing a Necessity Defense that he carried the sword because he was assaulted in the past, the court found Zaitzeff guilty as charged.

Zaitzeff appealed to King County Superior Court. However, the court concluded that sufficient evidence supported the conviction. Zaitzeff appealed to the WA Court of Appeals on the issues of the constitutionality of the ordinance and his ability to present a defense. The Court of Appeals granted review.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals held that the federal and state constitutions protect Zaitzeff’s sword as an arm:

“Historically, swords have been weapons of offense used to strike at others. And while law-abiding citizens do not typically carry swords for lawful purposes today, as further discussed below, swords were common at the time of founding . . . As law-abiding citizens traditionally used swords for self-defense, we conclude that both constitutions protect Zaitzeff’s sword as an arm.” ~WA Court of Appeals

Nevertheless, the Court also engaged a lengthy constitutional analysis and held that Seattle’s ordinance was reasonably necessary to protect public safety and welfare. Furthermore, the ordinance was substantially related to the goal of preventing sword-related injuries and violence:
“The ordinance does not severely burden his constitutional rights as it allows the defendant to purchase a sword and, in a secure wrapper, carry it home, carry it to be repaired, and carry it to abodes or places of business.” ~ WA Court of Appeals.
Next, the WA Court of Appeals upheld the lower court’s rejection of Zaitzeff’s Necessity defense. It reasoned that Zaitzeff’s concession that there was no one imminently threatening him that particular day prevented him from proving his defense.
Woth that, the Court of Appeals upheld Zaitzeff’s conviction.

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.

NCO’s & Double Jeopardy

Bellingham Defense Attorney, Domestic Violence, Double Jeopardy, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, No Contact Order, Unit of Prosecution, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Brett Kavanaugh, Double Jeopardy, And Presidential Pardons

In State v. Madden, the WA Court of Appeals held that a defendant who contacted a person with three separate No-Contact Orders (NCO’s) against him may only be punished for a single count of Violation of a No-Contact Order.

BACKGROUND FACTS 

Mr. Madden Jr. contacted a person with three separate no-contact orders against him. For this single act, the State charged Madden with three counts of Violating a No-Contact Order (DV). The jury found him guilty as charged. Madden appealed on arguments that his three convictions for violation of a no-contact order violated Double Jeopardy principles

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began with the background that Article I, section 9 of the WA State Constitution and the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protect against multiple punishments for the same offense.

“When a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act,” said the Court, quoting State v. Mutch.  “It must be manifestly apparent from the record, testimony, and argument that identical charges are based on separate acts.”

Furthermore – and importantly – the Court of defined what a “Unit of Prosecution” was. “Unless the legislature clearly and unambiguously intends to turn a single transaction into multiple offenses, the Rule of Lenity requires a court to resolve ambiguity in favor of one offenses,” said the Court.

Consequently, the Court reasoned that while Mr. Madden violated multiple court orders, he committed only one act constituting a “violation.” The Court further reasoned that the State cites no case in which a court allowed multiple convictions under a single statute based on a single act. Finally, the court reasoned that when a person is charged with multiple counts of the same offense, each count must be based on a separate and distinct criminal act. “Any other interpretation would lead to an unconstitutional result.”

With that, the Court of Appeals reversed counts two and three of Madden’s No-Contact Order Violation convictions.

Please read my Legal Guide Defending Against Domestic Violence Charges and contact my office if you, a friend or family member are charged with Domestic Violence crimes, including Assault and/or No-Contact Order Violations. Hiring an effective and competent defense attorney is the first and best step toward justice.

Decriminalize Personal Use

Bellingham Defense Attorney, Department of Corrections, Drug Offenses, felony, Fentanyl, Legislation, marijuana, Methamphetamine, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Image result for decriminalize drugs

On Thursday, Washington lawmakers introduced House Bill 1499. This bill would work to decriminalize personal use of drug possession and expand treatment and support services. The bill is sponsored by State Rep. Lauren Davis, a 32nd District Democrat from Shoreline, who represents portions of Edmonds, Lynnwood and Mountlake Terrace.

According to the Washington State Department of Health, an average of two people die from an opioid overdose every day in the state.

HB 1499, called the Pathways to Recovery Act, was introduced by Davis and co-sponsor Rep. Kirsten Harris-Talley, D-Seattle, It’s supported by various medical advocacy and civil rights organizations like Treatment First Washington, Care First Washington and Washington Recovery Alliance.

“The opposite of addiction is not sobriety, it’s connection . . . In all my years of work in this field, I can say that what keeps people from seeking treatment boils down to two things: one, they don’t believe recovery is possible for them, and two, they don’t believe they’re worthy of recovery.” ~WA State Rep. Lauren Davis

In short, the bill itself decriminalizes personal-use amounts of drugs. The decriminalization part is based on the widening belief that jail time and legal consequences often present more problems than rehabilitative solutions for people suffering from addiction, creating a vicious cycle.

“The Legislature finds that substance use disorder is among the only health conditions for which a person can be arrested for displaying symptoms.” the bill reads. “People use drugs to escape the painful reality of their lives and circumstances, including trauma that’s never had a chance to heal.”

According to Davis, building this new continuum of care would be funded piecemeal from a federal substance abuse block grant, money obtained through opioid manufacturing lawsuits and state general funds saved from expected reductions in the Department of Corrections budget needs.

Please contact my office if you, a friend or family member face drug charges. Hiring an effective and competent defense attorney is the first and best step toward justice.

Banning Armed Protests

Bellingham Defense Attorney, Firearm, Legislation, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , ,

Michigan Cancels Legislative Session to Avoid Armed Protesters - Bloomberg

The Washington State Capitol has long been the site of armed and unarmed protests. Until recently, armed protests at the Capitol have taken place without violence, bloodshed or gunfire.

In December, however, shots were fired at two clashes between demonstrators who were pro-former President Donald Trump and counterdemonstrators near the Capitol grounds, injuring one person. Consequently, lawmakers are considering a bill that would ban the open carry of firearms on Capitol grounds and at other public demonstrations.

Senate Bill 5038 would make it a gross misdemeanor to open carry firearms and other weapons at the state Capitol campus, legislative meetings and within 1,000 feet of a public demonstration. The bill’s prime sponsor, Sen. Patty Kuderer, D-Bellevue, said that an increase in armed vigilantism is becoming an alarming trend.

Kuderer argues that her bill would ensure that weapons are not used to intimidate peaceful demonstrators, and would decrease the potential for lethal violence.

“The purpose of open carrying a weapon at a protest is to intimidate people . . . It only serves to increase the risk of violence or death. And we’ve seen over the past several years armed groups engage with peaceful protestors, and sometimes with deadly consequences.” ~Sen. Patty Kuderer

According to Washington State Patrol spokesperson Chris Loftis, there have been 149 unpermitted demonstrations or events at the Capitol since COVID-19 restrictions went into effect in the spring.

Washington is an open-carry state, but the Capitol would be added to a list of places where firearms are already banned, including jails, courtrooms, airports, schools and mental health facilities.

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

Covid & Drug Overdoses

Bellingham Defense Attorney, Drug Offenses, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Poverty Defense, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Coronavirus Leads to More Drug Overdose Deaths · Napoli Shkolnik

Excellent article by Adriana Belmonte of yahoo!news reports that the Coronavirus Pandemic has had devastating mental health effects on Americans, and drug abuse is hitting record levels.

New data from the Centers for Disease Control and Prevention (CDC) revealed that over 81,000 drug overdose deaths occurred in the U.S. in the 12-month period ending in May 2020. That’s the highest number ever recorded by the CDC.

“This pandemic and all that’s come along with it has really just exacerbated those vulnerabilities and the shortcomings of our own approach to treating those people.” ~Dr. Ryan Marino, a medical toxicologist and emergency physician based out of Ohio.

Ms. Belmonte reports that in San Francisco, the number of overdose deaths (621) outpaced COVID-related deaths (173) in 2020. And more than 40 states reported annual increases in opioid overdose deaths, “as well as ongoing concerns for those with a mental illness or substance use disorder,” according to the American Medical Association.

According to Belmonte, a CDC survey in June found that 40.9% of Americans reported at least one adverse mental or behavioral health condition, with 13.3% of respondents having started or increased substance use to cope with stress or emotions related to COVID-19:

Please contact my office if you, a friend or family member face criminal allegations such as Drug Charges, Assault or Domestic Violence. Chances are, the various compounding stresses brought by the Coronavirus Pandemic could factor into the allegations. Hiring and experienced and effective criminal defense attorney is the first and best step towards justice.