Category Archives: Mount Vernon Criminal Defense Attorney

President-elect Joe Biden on the U.S. Drug Epidemic

Joe Biden says he 'regrets' supporting 'tough-on-crime' drug laws in 1990s  as he considers presidential bid | The Independent | The Independent

Excellent article in Politico by staff reporters Dan Goldberg and Brianna Ehley discusses how President-elect Joe Biden will emphasize drug treatment and prevention, not law enforcement, in addressing a drug epidemic that’s only grown more dire during the Coronavirus Pandemic.

According to the article, Biden will take office at a crucial moment in the fight against drug addiction. Some states are contending with double-digit spikes in overdose deaths, sparse public health workforces are already stretched thin fighting the coronavirus and widening budget deficits brought on by the pandemic could force states to make painful cutbacks to public services.

Also, more than 76,000 people died of a drug overdose between April 2019 and April 2020, according to the most recent preliminary federal data, the most ever recorded during a 12-month period. Federal health officials say the drug crisis has only been amplified by months of social isolation, high unemployment and the diversion of resources to combat the virus.

Biden, who often spoke during the campaign about his son Hunter’s struggles with substance abuse, has called for record investments in drug prevention and treatment while also holding drug companies accountable for their role in the opioid epidemic.

According to the article, it’s staggering how much the pandemic has exacerbated the drug crisis this year. Ohio recorded 543 overdose deaths in May, the most ever in a single month. Overdose deaths in the state this year may even surpass a record 4,800 in 2017, said Dennis Cauchon, president of Harm Reduction Ohio.

“I never thought we could top 2017 levels of death and I was wrong . . . It’s a slaughter out there.” ~Dennis Cauchon, president of Harm Reduction Ohio.

Oregon reported a 70 percent increase in the number of overdose deaths in April and May compared to the same two months in 2019. In Maine, overdose deaths during the first half of 2020 were up 27 percent from the previous year. Spikes have also been documented in Colorado, Kentucky and Louisiana.

Please contact my office if you, a friend or family member face drug charges. The search and seizure of the drugs may have violated the defendant’s Constitutional rights. Hiring an experienced and effective criminal defense attorney is the first and best step towards justice.

Constructive Possession

Constructive Possession | Murphy's Law Office

“How can I be arrested for possessing drugs when I didn’t have the drugs anywhere on my body?”

A recent case handed down from the Washington Court of Appeals succinctly answers that question in the context of an unlawful possession case involving the search and seizure of drugs from a vehicle.

In State v. Listoe, the Court held that sufficient evidence existed to establish the defendant had constructive possession over the illegal drugs discovered on the back floorboards of the car he was driving.

FACTUAL BACKGROUND

On May 11, 2018, Deputy Andrew Hren observed a black car parked at a 7-Eleven convenience store. On running the license plate, Hren discovered that the car’s registration had expired. The car pulled out of the 7-Eleven parking lot, Hren got behind it and pulled it over. Listoe, who was driving the car, did not pull over immediately but traveled for about 1,000 feet first, which Hren believed was uncommon.

As Hren approached the car, he could see Listoe making a series of movements with his hands. Listoe opened the door and began to step out, but Hren ordered him to get back in the car. Hren observed Listoe making additional “furtive movements” in his lap area. Hren then ordered Listoe to place his hands on the steering wheel, and Listoe complied. Hren informed Listoe of the reason for pulling him over, and Listoe responded that the car was not his and that he did not know the registration was expired. A passenger named Ms. Lemon was sitting in the car’s passenger seat. After briefly speaking to Lemon, Hren told Lemon that she was free to leave, and she left. Lemon was not searched during the encounter.

Hren ordered Listoe out of the vehicle and placed Listoe under arrest. During the search incident to Listoe’s arrest, Hren found a plastic bag that contained a white crystalline substance on Listoe’s person. The substance appeared to be methamphetamine. Listoe also had $221 in his wallet.

A K-9 unit alerted to the presence of controlled substances in the car Listoe was driving. Due to the K-9 alert, Hren obtained a search warrant to search the interior of the vehicle for additional evidence of controlled substances. Police found numerous items associated with drug dealing activities: a notepad with a name and phone number, a digital scale, a plastic Tupperware container that had white residue, a factory packaged plastic bag with syringes, and a mint container that contained shards of a white crystalline substance that Hren believed was methamphetamine.

Listoe was charged with one count of possession of methamphetamine with intent to
manufacture or deliver and one count of possession of a controlled substance (Suboxone). The jury found him guilty as charged.

On appeal, Listoe claims that there was insufficient evidence that he had constructive possession over the methamphetamine and Suboxone discovered on the back floorboards of the car he was driving. Listoe asserts that evidence was insufficient because (1) the car was not his, (2) the officers did not find evidence proving that Listoe had dominion and control over the car and its contents, and (3) the drugs on the rear floor of the car could have reasonably belonged to Lemon.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals held that We hold that the evidence was sufficient to establish that Listoe had constructive possession over the items the officers discovered in the back of the car.

“The facts that (1) Listoe was driving the vehicle, (2) Listoe had methamphetamine on his person, which is one of the same drugs found in the back of the vehicle, and (3) Deputy Hren observed Listoe making furtive movements while taking an uncommonly long time to pull over, provide sufficient evidence of constructive possession to support Listoe’s convictions.” ~WA Court of Appeals

The Court reasoned that under State v. Reichert, possession can either be actual or constructive. It also reasoned that under State v. George, whereas actual possession requires an individual to have physical custody of a given item, constructive possession may be shown where the individual has “dominion and control” over that item. Control need not be exclusive to establish possession, and more than one person can be in possession of the same item.

“We examine the totality of the circumstances and look to a variety of factors to determine whether an individual has dominion and control over an item,” said the court. The court further said for example, that it may consider whether the individual could readily convert the items to his or her actual possession and/or the defendant’s physical proximity to a given item.

Finally, the court said it may also consider whether the defendant had dominion and control over the broader premises in which the item was located. In cases where the defendant was driving a vehicle that the defendant owned, courts have found sufficient evidence that the defendant had dominion and control over the vehicle’s premises and its contents.

With that, the Court rendered its decision.

“The fact that Listoe was driving the car weighs in favor of finding that Listoe had dominion
and control over the vehicle and its contents,” said the court. The court also reasoned that the fact that fruits and vegetables, which are perishable items, were discovered in the same reusable black grocery bag as the white bag containing the contraband, shows that these items likely belonged to either Listoe or Lemon.

“It is unlikely that perishable items were left in the car by a prior driver or passenger,” said the Court. “Further, Listoe’s furtive hand movements on two occasions, as well the fact that Listoe drove an uncommonly long distance before pulling over, raise an inference that the was handling the contraband at that time, or possibly strategizing about where to hide it.”

The Court believed this same fact could also support a reasonable inference that Listoe could convert dominion and control over the items in the vehicle into his actual possession. In addition, because Hren found methamphetamine on Listoe’s person during the search incident to arrest, and methamphetamine was also discovered in the back of the vehicle, a rational trier of fact could infer that the methamphetamine in the back of the vehicle belonged to Listoe as well.

Finally, the Court of Appeals reasoned that while the above facts may not have been sufficient to establish constructive possession in isolation, taken together, they would lead a rational trier of fact to find that Listoe had constructive possession over the items in the back of the vehicle he was driving. ”

Ultimately, although the court found that Listoe’s convictions were supported by sufficient evidence, it reversed his conviction on the technicality that the trial court improperly applied GR 37 when considering his objection to the State’s peremptory challenge of a non-white juror.

Please contact my office if you, a friend or family member face criminal charges involving the search and seizure of vehicles, homes and/or persons. Sometimes, police officers violate people’s Constitutional rights during the course of a search. Hiring an experienced criminal defense attorney who knows the law is the first and best step toward justice.

FBI Releases 2019 Hate Crime Statistics

Pie chart depicting breakdown of motivations of bias-motivated crimes  in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

Coronavirus Crime Trends

Coronavirus Quarantines Spark Drop in Crime – for Now | National News | US  News

Excellent and informative article in Safewise.com written by lead safety reporter and in-house expert gives us updates on the latest crime statistics and trends in the major cities throughout the Coronavirus pandemic.

The gist?

“It depends on who you ask. From a research standpoint, it’s difficult to make a sweeping assumption—even after six months of living in a COVID-19 world. But there are consistent signs across the country that certain crimes have seen jumps during the global pandemic. The biggest increases have been in violent crimes, particularly murder, aggravated assault, and shooting incidents.” ~Rebecca Edwards, Lead Safety Reporter, Safewise.com

  • Preliminary FBI data for the first six months of 2020 shows murder and non-negligent homicide as up nearly 15% compared to the same time period last year.
  • report by the Council on Criminal Justice (CCJ) paints an even more dire picture—showing a 53% jump in homicides in 27 major US cities this summer, compared to the last.
  • FBI data also shows a 4.6% jump in aggravated assaults between January and June 2020, versus the same period in 2019.
  • Aggravated assault rose 14% summer over summer, according to the CCJ analysis.
  • Gun violence has been relentless for much of 2020, particularly in major cities like ChicagoNew York City, and Philadelphia.
  • As of September 28, the Gun Violence Archive (GVA) has recorded 13,641 homicides, murders, and unintentional gun-related deaths for 2020. That’s almost 90% of the total recorded for all of 2019.

“It’s not all bad news, though,” reports Edwards. “There are plenty of other crimes that have dropped dramatically amid stay at home orders, physical distancing, and other pandemic conditions.” She gives us the following data:

  • Counts of rape have dropped, according to FBI data—falling almost 18% year over year.
  • Robberies have also been on the decline, dropping 7% for the first half of 2020.
  • Overall, property crimes have been on a downward trajectory this year.
  • According to a preliminary FBI report,  property crime saw an 8% decrease nationwide between January and June 2020, compared to the same timeframe last year.
  • The FBI shows burglaries down across the board by nearly 8% year over year, although cities like Seattle and San Francisco have seen drastic increases.
  • Larceny thefts also dropped by nearly 10% in the first half of 2020, according to FBI data.
  • Car thefts and break-ins have been on the rise during the pandemic. The FBI shows a 6% climb in vehicle thefts between January and June 2020, compared to the same time in 2019.
  • Cities like Los AngelesDenver, and Scarsdale, New York have broken records for the number of cars stolen so far in 2020.
  • The FBI also reports a drastic jump of 19% in arson offenses nationwide. The majority (52%) of that increase came from cities with more than one million residents.

Edwards also gives statistics on Washington State:

  • Seattle had 32 more burglaries per 100,000 people between March 16 and April 12, compared to the same time period last year.
  • One Seattle precinct saw an 87% jump in burglaries in March, as businesses shuttered due to the pandemic. Overall, the city has seen 21% more burglaries.
 Please contact my office if you, a friend or family member face criminal charges during the Coronavirus Pandemic.

Right to Present a Defense

1538.5 Motions To Suppress Evidence In California

In State v. Jennings, the WA Court of Appeals held the trial court’s exclusion of a shooting victim’s toxicology report indicating the victim had methamphetamine in his body at the time of his death did not violate the defendant’s constitutional right to present a defense.

BACKGROUND FACTS

On the date of the incident, the defendant Mr. Jennings accompanied his friend Mr. Redman to get Redman’s car from a mobile home in Puyallup, Washington. Redman had been living there, but had recently been kicked out. Drug activity occurred there. Jennings was there to defuse any hostilities between Redman and others at the house. Jennings armed himself with bear spray and a gun.

When they arrived, Jennings was on high alert. He knew violent events had recently occurred there. His friend Mr. Redman got into an argument with Mr. Burton, an individual at the house. Redman had his gun out. Jennings was familiar with the behavior of people who consumed methamphetamine. He realized that both Redman and Burton were high on methamphetamine and acting aggressively.

Burton and Redman argued about Redman’s car and then began to scuffle, wrestling in the foyer of the house. Jennings sprayed his bear spray at them to break up the fight. Burton then turned around and started walking toward Jennings, who backed up. Jennings believed Burton had Redman’s gun.

Jennings feared for his life. He was afraid Burton was reacting violently because he was high on methamphetamine. Jennings fired his gun and hit Burton twice. Burton died at the scene shortly after the shooting and before the ambulance arrived.

Jennings was arrested the next day. He was charged with second degree intentional murder (RCW 9A.32.050(1)(a)), second degree felony murder predicated on second degree assault (RCW 9A.32.050(1)(b)), and unlawful possession of a firearm.

At trial, Jennings claimed at trial that he shot Burton in self-defense. However, the judge excluded the toxicology report showing that Burton had methamphetamine in his body at the time of his death.  A jury found Jennings guilty of second degree felony murder.

Jennings appealed on numerous issues, including arguments that the trial court violated his constitutional right to present a defense by excluding a toxicology report showing that Burton had methamphetamine in his body at the time of his death.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by emphasizing that criminal defendants have a constitutional right to present a defense under the Sixth Amendment. Furthermore, evidence of self-defense must be assessed from the standpoint of the reasonably prudent person standing in the shoes of the defendant, knowing all the defendant knows and seeing all the defendant sees. Finally, the court reasoned that evidence that might impact a defendant’s assessment of the danger presented, like the victim’s prior specific violent acts, is admissible only if known to the defendant when the incident occurred.

“In analyzing the Sixth Amendment right to present a defense, we balance the State’s interest in excluding the toxicology report against Jennings’s need for evidence showing that his subjective fear was reasonable,” said the Court of Appeals.

The Court further reasoned that in this case, the toxicology report did not have extremely high probative value and it did not constitute Jennings’s entire defense. “At trial, Jennings testified that what he observed on the day of the shooting gave rise to his subjective fear . . . his belief that Burton was high on methamphetamine,” said the Court.

“Jennings has not shown that there was a reasonable probability that any additional corroboration from the toxicology report would have materially changed the result at trial,” said the Court. “We hold that even if the trial court abused its discretion by excluding the toxicology report under ER 401 and 402, this ruling was harmless error.”

With that, the Court of Appeals upheld Mr. Jennings’ conviction.

My opinion? Evidentiary and legal issues aside, these facts are terribly tragic. My heart goes out to the friends and families of all who were impacted by this. From a legal standpoint, however, It appears the WA Court of Appeals conducted a basic balancing test under Washington’s Rules of Evidence and determined that the toxicology report of the victim’s meth/blood levels was neither probative nor relevant at trial.

Under Washington’s Rules of Evidence, relevant evidence is defined in ER 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 402 provides that evidence which is not relevant is not admissible. Finally, ER 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice.

Here, the Court of Appeals was convinced that Mr. Jennings’ self-defense theory was properly supported by his testimony that he responded in self-defense to the victim’s meth-induced attack. Therefore, no other evidence was necessary to admit more evidence that the victim was high on meth. Jennings’ testimony, by itself, was enough. Any additional evidence on that issue was therefore cumulative, repetitive, unnecessary and potentially prejudicial to the State’s case under ER 403.

Please contact my office if you, a friend or family member face criminal charges and self-defense is a possible defense. It’s important to hire an experienced criminal defense trial attorney who understands the law, the rules of evidence and how both contribute to trial defenses.

Assault of a Child or Swimming Lesson?

Backlash over 'self-rescue' swimming classes for toddlers | News | The Times

In State v. Loos, the WA Court of Appeals held that although the defendant repeatedly submerged a toddler in a river during an impromptu swimming lesson, there was insufficient to establish that the defendant’s actions caused the toddler in her care to experience substantial pain that endured for a period of time long enough to cause considerable suffering.

FACTUAL BACKGROUND

Defendant Ms. Loos was babysitting J.T.S., a nonverbal, speech-delayed two-and-a-half-year-old toddler whom she had cared for throughout his infancy. Loos and a friend, Ms. Tetzlaff, decided to take a group of seven children to swim in the Jordan River that day.

While swimming in the river, Tetzlaff became concerned about Loos’s conduct. Tetzlaff testified that Loos picked up J.T.S. and said “it’s time to swim.” For the next minute – which was caught on camera – Loos engaged an impromptu swim lesson and tried teaching J.T.S. a swim technique called “infant self-rescue” by teaching him to float on his back.

In the 51-second video, Loos can be seen holding J.T.S. on his back in the water, and is heard telling him “when we scream, we go under.” After a moment, J.T.S. was submerged in the water for a few seconds and Loos pulled him back up out of the water. Loos repositioned J.T.S. on his back, at which point he began to struggle and tried to pull away. Loos told J.T.S. again not to scream and he was again submerged. This time, Loos had one hand under J.T.S. and one hand on his chest. At trial, Tetzlaff testified that Loos was “holding him under the water.” T.L. similarly testified he saw Loos push J.T.S. under water, and T.L. could see J.T.S. flailing his arms while submerged. When Loos lifted him out of the water, he came up coughing and screaming. Eventually, Loos ended the swim lesson.

On December 1, 2017, approximately two and a half years later, the State charged Loos with one count of assault of a child in the third degree. During trial, Loos moved to dismiss the charge for insufficient evidence. The trial court denied this motion, although it acknowledged its decision was a “close call.”

The jury found Loos guilty. She appealed on the grounds of insufficient evidence.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals began by saying due process of law requires that the State prove every element of a charged crime beyond a reasonable doubt in order to obtain a criminal conviction.

Furthermore, the court cited State v. Green in saying that in order to evaluate whether sufficient evidence supports a conviction, the court views the evidence in the light most favorable to the State to determine if any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt.

“Dismissal with prejudice is required when there is insufficient evidence at the close of the prosecution’s case in-chief to sustain a charged offense,” said the Court of Appeals.

Next, the court gave the statutory definition of “bodily harm” as “physical pain or injury, illness, or an impairment of physical condition,” And that this pain or impairment must be accompanied by “substantial pain.”

Finally, the Court of Appeals reasoned whether there was sufficient evidence that T.J. suffered substantial pain from the swimming incident. “J.T.S.’s coughing when pulled out of the water caused him some physical pain,” said the Court. “But neither the testimony nor the 51-second video of the incident supports any contention that J.T.S. was unable to quickly and easily eliminate the water from his throat or that he remained in any pain once he did so.”

“The evidence was undisputed that J.T.S. did not require CPR, did not vomit, did not lose consciousness, did not appear to have any swelling of his belly, did not sustain any lung injury, and needed no medical treatment. There is no evidence J.T.S. was inconsolable as a result of any ongoing pain or that any momentary pain he may have experienced lasted for any period of time after he coughed and Loos removed him from the water.” ~WA Court of Appeals

The Court of Appeals concluded by saying that no reasonable jury would find that J.T.S. suffered substantial pain that extended for a period sufficient to cause considerable suffering. With that, the Court of Appeals reversed Loos’s conviction.

My opinion? Good decision. The trial court erred when it denied Ms. Loos’ Motion to Dismiss pursuant to State v. Green. Better known as a Green Motion, this tactical trial maneuver allows defendants to request the judge dismiss criminal charges after the Prosecution has presented its evidence and rested its case.

Please contact my office if you, a friend or family member face charges and the Prosecution has evidentiary proof problems. Hiring an effective and experienced attorney is the first and best step towards justice.

ACLU Sues DOL

Guide to Pinellas County Driving on Suspended License Charges

In a press release, the ACLU of Washington acknowledges filing a lawsuit on behalf of individuals who have had their driver’s licenses suspended by the Washington Department of Licensing (DOL) because they were unable to pay fines and fees for moving violations.

The complaint, filed in Thurston County Superior Court on behalf of people whose licenses have been suspended, claims that Washington’s law authorizing automatic and mandatory license suspensions for failure to pay moving violation fines violates the state constitution’s rights to due process and equal protection, due to the additional punishments it levies on individuals with low or no income. The lawsuit also alleges that license suspension for failure to pay a ticket is an unconstitutionally excessive punishment.

According to the ACLU’s press release, the plaintiffs in the case come from throughout Washington and have suffered a variety of negative consequences due to the loss of their license—consequences that individuals with an ability to pay traffic fines would not face. These include loss of employment and income; the inability to take children to school; and the inability to care for family members. These additional barriers compound the root problems that make it difficult for people with low or no income to pay fines and fees.

“Washington’s law authorizing automatic and mandatory license suspensions not only violates basic fairness for people with low or no income, it violates the state constitution,” said ACLU of Washington Staff Attorney Lisa Nowlin.

“Ability to pay must be considered when suspending a license, because no one should suffer additional penalties for a moving violation because of poverty.” ~Lisa Nowlin, ACLU Staff Attorney

“The American legal system is founded on the principle that everyone, regardless of means, is treated the same under the law. Washington’s license suspension laws violate that principle,” said Donald Scaramastra, cooperating attorney from Foster Garvey, PC.

My opinion? It’s about darn time . . .

Privacy & Text Messages

Cop Cams New To Most But Old School For Modesto PD - capradio.org

In State v. Bowman, the WA Court of Appeals held that a police officer violates a defendant’s constitutional rights by sending a text message to the defendant from an unfamiliar phone number while impersonating a known contact of the defendant.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On appeal, Bowman argues the trial court erred in denying his motion to suppress evidence that flowed from his text message conversation with the DHS Agent. Specifically, he argues that DHS Agent’s impersonating a known contact of his through text messages violated his right to privacy under the Washington Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under article I, section 7 of the Washington Constitution, no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

“Interpretation of this article requires a two part analysis,” said the Court. “First, we must determine whether the action complained of constitutes a disturbance of private affairs,” said the Court. “If we determine that a valid private affair has been disturbed, we then must determine whether the intrusion is justified by authority of law.”

The DHS Agent’s Actions Disrupted Mr. Bowman’s Private Affairs.

The Court of Appeals began by defining “Private affairs” as those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass without a warrant.

Based on that, the Court reasoned Mr. Bowman did not talk with someone he thought was a stranger. Rather, he conversed with a person who represented himself as someone that Bowman knew. Therefore, reasoned the court, Bowman had a reasonable expectation of privacy for that conversation. The DHS agent invaded that right of privacy.

The DHS Agent Was Not Acting Under Authority of Law.

The Court of Appeals reasoned that although Mr. Schabell consented to the search of his phone, there was no proof that he consented to being impersonated.

“Therefore, Dkane was not acting under authority of law, and violated Bowman’s right of privacy,” said the Court. “The trial court erred by failing to suppress the evidence obtained by that violation of privacy.”

With that, the Court of Appeals reversed Mr. Bowman’s conviction and remanded for a new trial, with instructions to suppress evidence obtained in violation of Bowman’s right to privacy.

My opinion? Good decision.

Crime Fell In First 6 Months of COVID

Coronavirus Is Slowing Down the Criminal Justice System. Will Criminals  Cash In?

According to a recent FBI Report, violent and property crime both plunged across the United States in the first six months of 2020 as the coronavirus pandemic swept the country.

Even though lockdowns to prevent the spread of Covid-19 were inconsistent and non-existent in some areas, murders fell 14.8 percent from a year earlier and rapes dropped 17.8 percent, according to preliminary data compiled by the FBI.

Violent robbery fell 7.1 percent, and non-violent thefts and larceny fell by slightly more from the first half of 2019, the FBI said.

But arson jumped in the first half of this year, especially in large cities and in West, it said. Arson cases rose more than 52 percent in cities with populations over one million, and were up 28 percent in the western part of the country. The FBI did not offer any explanation of the decline in crime overall, or the surge in arson.

But the period covered by the data coincides with the country’s response to the coronavirus pandemic, including the declaration of a national emergency on March 13, California’s stay-at-home order on March 19, and New York issued a stay-at-home order on March 20.

Violent crime of all types fell in the period by 4.8 percent in the northeast and by smaller levels in the West and Midwest. But violent crime increased compared to 2019 in the South, by 2.5 percent. Generally southern states lagged others in taking serious steps to prevent the spread of the coronavirus.

Please contact my office if you, a friend or family member face criminal charges. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Study Finds Police Misconduct Leads to Wrongful Convictions

Advocacy group speaks out against wrongful convictions

A recent study found that actions by police officers, including witness tampering, violent interrogations and falsifying evidence, account for the majority of the misconduct that lead to wrongful convictions.

Titled, Government Misconduct and Convicting the Innocent: The Role of Prosecutors, Police and Other Law Enforcement, researchers from the National Registry of Exonerations studied 2,400 convictions of defendants who were later found innocent over a 30-year period and found that 35% of these cases involved some type of misconduct by police. More than half – 54% – involved misconduct by police or prosecutors.

The study comes as protests over racial injustice and police brutality spread across many cities for several months following the May 25 death of George Floyd in police custody.

Researchers found that misconduct by police and prosecutors is among the leading causes of disproportionate false conviction of Black defendants. For example, 78% of Black defendants who were wrongly accused of murder were convicted because of some type of misconduct. That number is 64% for white defendants, according to the study. An even wider gap: 87% of Black defendants later found innocent who were sentenced to death were victims of official misconduct vs. 68% for white defendants.

The study found that hiding evidence that is favorable to defendants is the most common type of misconduct.

Researchers cite five murder trials in which prosecutors concealed evidence about the cause of death. In one case, a woman was convicted of killing her boyfriend, but prosecutors did not disclose a medical report that found he had died of suicide.

“In a few rape exonerations, the authorities concealed evidence that the complainants had a history of making false rape allegations . . . And in at least a dozen child sex abuse cases, police, prosecutors and child welfare workers concealed statements by the supposed victims that they had not in fact been molested.” ~National Registry of Exonerations

In some cases – according to the study – police officers falsely claimed they were victims of assaults by defendants. In one such case, police officers from Chattanooga, Tennessee, beat a defendant at a reentry facility because he defended himself. Adam Tatum was sentenced to two years in prison for assaulting officers but was later exonerated after video showed that officers attacked him without provocation. Tatum sued and later settled for $125,000.

Also, police officers were disciplined or convicted of crimes in only 19% of exonerations that involved some type of misconduct, according to the study. That’s a rate five times higher than those for prosecutors, whose misconduct account for 30% of the cases.

Please contact my office if you, a friend or family member are charged with a crime and evidence appears to have been withheld. Hiring an experienced and effective criminal defense attorney is the best step toward justice. Experienced attorneys regularly file and argue Motions to Compel and/or a Brady Motions; both of which force the Prosecutor to give exculpatory evidence and release discovery that they otherwise wouldn’t.