Category Archives: police

No More Police Chokeholds

emi koyama (@emikoyama) | Twitter

Excellent article by Melissa Luck of the yaktrinews.com reports that House Bill 1054 would limit law enforcement officers from using controversial police tactics like chokeholds and tear gas.

The Consequences of Arrest Leads to Different Outcomes for Black, White Youth

The criminal justice system is riddled with racial disparities | Prison  Policy Initiative

For black youth, the Consequences of Arrest by eighth grade predicts they will be arrested by young adulthood – but the same is not true for white youth, a new University of Washington study finds.

The study, titled, The Usual, Racialized, Suspects: The Consequences of Police Contacts with Black and White Youth on Adult Arrest, finds that Black young adults are 11 times more likely to be arrested by age 20 if they had an initial encounter with law enforcement in their early teens than Black youth who don’t have that first contact.

In contrast, white young adults with early police contact are not significantly more likely to be arrested later, compared with white peers without that history.

The study also found that Black youth are more likely than white youth to be treated as “usual suspects” after a first encounter with police, leading to subsequent arrests over time. Even as white young adults report engaging in significantly more illegal behavior, Black young adults face more criminal penalties, the study finds.

Researchers also said it’s not just the number of stops, but what transpires during a police stop that sets the tone for future interactions with police.

“What we know about police contacts and youth generally is that Black youth are more likely to be stopped by police to begin with, and are more likely to have a negative experience when that happens,” said first author Annie McGlynn-Wright, a postdoctoral fellow at Tulane University who led the study while pursuing her doctorate at the UW. “What we haven’t known previously is the long-term effects of police contacts in terms of criminal justice outcomes.”

Racial differences in who is stopped, why and for what penalty have been well documented, the researchers said. Also, police stops have been linked to individuals’ later run-ins with law enforcement.

While the data was collected in Seattle, researchers say the patterns they found are likely occurring in cities around the country — Seattle is “more like every other town” than some larger metro areas like Chicago and Philadelphia, where many criminal justice studies are located, noted co-author Robert Crutchfield, a professor emeritus of sociology at the UW.

“When police interact with communities, and young people in communities, they have to be especially mindful of the nature and substance of the encounters, and police really need training to avoid negative interactions. What we found is that contact matters. In this study, we couldn’t parse out the nature of the interactions, but I suspect most kids experienced the interaction in a negative way. The message is, cops need to do better to minimize unnecessary contacts, and when they do contact people, to treat them better.” ~Robert Crutchfield, UW Professor Emeritus of Sociology.

For this study, UW researchers wanted to examine the effects of the first stop on the lives of Black and white adolescents, and whether a stop in the early teen years is associated with “secondary sanctioning,” or a “usual suspects” treatment by police that plays out over future stops and/or arrests. The study is among the first to explore the racial differences in police contact over time.

It also comes during a period of significant reckoning over race and policing in the United States, after a series of law enforcement killings of Black people around the country. As communities grapple with how to address institutionalized racism, police procedures and accountability, many school districts, including Seattle, have ended their contracts with law enforcement agencies for school resource officers, the personnel who are assigned to specific school buildings. Research has shown that students of color are disproportionately subject to discipline and monitoring by school resource officers.

Please contact my office if you, a friend or family member are charged and arrested and race might play a factor in the charges. Hiring an experienced criminal defense attorney is the first and best step toward 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.

Study Finds Police Misconduct Leads to Wrongful Convictions

Advocacy group speaks out against wrongful convictions

A recent study finds police misconduct leads to wrongful convictions. The misconducts included witness tampering, violent interrogations and falsifying evidence.

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.

DUI & Opinion Evidence

Nunez trial Day 3: El Paso cops, arson investigator, medical ...

In City of Seattle v. Levesque, the WA Court of Appeals held that a police officer, who is not a Drug Recognition Expert (DRE), may not give an opinion on whether the defendant was guilty of DUI.

BACKGROUND FACTS

On April 29, 2015, the Seattle Police Department dispatched Officers Hinson and Officer Coe to the scene of an automobile accident involving two vehicles. Levesque had failed to stop his vehicle prior to hitting the vehicle in front of him. The accident caused moderate to severe damage, and Levesque’s vehicle could not be driven.

Officer Hinson placed Levesque under arrest for DUI.

Although Officer Hinson had received training in field sobriety tests (FSTS), he did not perform any FSTs at the scene because of Levesque’s symptoms, the absence of any alcohol smell, and the location of the accident and corresponding impracticability of FSTs. Officer Hinson did not perform a horizontal gaze nystagmus (HGN) test for signs of impairment. Officer Hinson, who is not DRE certified, testified that he attempted to contact a DRE by radio, but no DRE was available.

For those who don’t know, a DRE  is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol.

After arresting Levesque, Officer Hinson transported Levesque to Harborview Medical Center, where he had his blood drawn. The drug analysis results showed that Levesque’s blood contained 0.14 milligrams per liter (mg/L) of amphetamine and 0.55 mg/L of methamphetamine. The City charged Levesque with DUI.

Before trial, Levesque moved in limine to exclude any testifying officer’s opinion on ultimate issues. The trial court granted the motion but ruled that an officer could state “in his opinion, based upon the totality of the circumstances, that Levesque was impaired.” The trial court also granted Levesque’s additional motion to exclude officers as experts but declared that an officer—testifying as a lay witness—could “certainly testify to what he objectively observed during the investigation.”

Officer Hinson testified that through his training and experience Levesque showed signs as possibly being impaired by a stimulant. When asked to opine as to whether Levesque was impaired by drugs, Officer Hinson testified that his opinion was that Levesque was definitely impaired at the time of the accident.” Levesque objected to Officer Hinson’s testimony and requested a mistrial outside the presence of the jury following a lunch recess. The court overruled Levesque’s objections.

Also at trial, Levesque offered an alternative theory for his perceived impairment. Levesque’s defense theory was that he was prescribed medication for injuries which explain his behavior. In support of this defense, Levesque presented testimony from his physician about treatment and prescriptions that she gave Levesque prior to the accident, her diagnoses, and Levesque’s symptoms.

The jury convicted Levesque of driving while under the influence. Levesque appealed his conviction to the superior court, which reversed based on Officer Hinson’s opinion testimony. The city of Seattle (City) appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that opinion testimony must be deemed admissible by the trial court before it is offered. Opinion testimony may be admissible under ER 701 as lay testimony or ER 702 as expert testimony. However, when opinion testimony that embraces an ultimate issue is inadmissible in a criminal trial, the testimony may constitute an impermissible opinion on guilt. Furthermore, impermissible opinion testimony regarding the defendant’s guilt may be reversible error.

Here, the opinion testimony at issue consists of Officer Hinson’s statements that Levesque showed signs and symptoms of being impaired by a specific category of drug – i.e., a CNS stimulant – and that Levesque was “definitely impaired” at the time of the accident.

“We conclude that because Officer Hinson was not a drug recognition expert (DRE) and lacked otherwise sufficient training and experience, he was not qualified to opine that Levesque showed signs and symptoms consistent with having consumed a particular category of drug.” ~WA Court of Appeals

Furthermore, the Court of Appeals reasoned that because the officer’s opinion that Levesque was “definitely impaired” constituted an impermissible opinion of Levesque’s guilt, the trial court’s admission of that testimony violated Levesque’s constitutional right to have the jury determine an ultimate issue. Finally, because Levesque presented an alternative theory for his behavior, the City did not establish beyond a reasonable doubt that any reasonable jury would have convicted Levesque. “Therefore, we affirm the superior court’s reversal of Levesque’s conviction,” said the Court of Appeals.

My opinion? Excellent decision. And excellent work on behalf of his defense attorney. They did a great job of making a record for not only trying to suppress the officer’s opinion evidence during motions in limine, but also for properly objecting at the right time and preserving the issue for appeal when the officer unlawfully offered the opinion testimony.

Under Evidence Rule 704, witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions. This is because testimony from witnesses on these issues is not probative and is, in fact, prejudicial to criminal defendants. Good opinion.

Please contact my office if you, a friend or family member are charged with DUI. Hiring a competent and experienced criminal defense attorney who is well-versed on pretrial motions and the rules of evidence is the first and best step toward justice.

Jail Populations Are At Risk For Spreading CV-19

The 5 Worst Prisons On Earth: Step Inside A Living Hell

Great article by Anna Flagg and Joseph Neff of the Marshall Project says describes how jail populations are potentially risky environments for transmitting COVID-19.

For jails across the country, the churn of people moving in and out threatens to accelerate the spread of the disease, endangering the incarcerated, the staff and the larger community.

Analysis of a database of county- and jurisdiction-level jail populations built by the Vera Institute of Justice shows the short-term flow of people through local facilities, including some who were admitted more than once, for an average week in 2017 (the most recent year with available data). Apparently, in a given week, more than 200,000 people are booked into jails across the country; roughly the same number walk out every week.

Thankfully – and according to the article – some states and jurisdictions have responded by releasing prisoners or cutting jail time.

“Jails are transient,” say the authors. “Most there have been charged with crimes but not convicted. Many are waiting to pay bail to be released until trial or can’t afford bail. The rest have misdemeanor convictions with sentences counted in months instead of years.”

Preventing the spread of the virus in jails is challenging. Social distancing is crucial, but it’s virtually impossible in dormitories with rows of beds in a common room. The same is true of two people in a single cell, or group showers or bathrooms that serve dozens. All these dangers escalate when jails are overcrowdedfilthy or understaffed.

Making matters worse, physical contact between staff and the incarcerated is often unavoidable: Officers fingerprint, handcuff and supervise prisoners, as well as escort them to court and drive them to medical appointments. Many other people also flow in and out of jails, like family members who visit; volunteers who counsel or teach or preach; contractors who stock vending machines; and lawyers who meet their clients. Many jails have cut much of that traffic in response to coronavirus by limiting visits, services and vendors, and by moving to online and phone communication.

The authors say that the Centers for Disease Control and Prevention, the American Correctional Association and other groups offer guidance for corrections departments on containing the virus: Start frequent temperature screenings; take oral medical histories; limit visitors and vendors; increase cleaning; restrict movement; create spaces for isolating; coordinate with health providers; and plan for possible staff shortages.

The authors also suggest “de-densifying” our jails by reducing bookings and accelerating releases, something over which sheriffs have limited control.

My opinion? Desperate times call for desperate measures. Perhaps persuading judges to set low bond amounts and minimal conditions of pretrial release is a good starting point. Police officers can be persuaded to make mindful decisions when they decide whether to arrest and book a person into jail, or issue a citation with a court date. For the most part, it’s advisable that police officers simply write citations for misdemeanors except for drunken driving and domestic violence charges.

Please read my Legal Guides titles, Making Bail and Quash Your Bench Warrant and contact my office if you, a friend or family member are jailed and incarcerated during this time of CV-19 outbreaks. And hiring an experienced, effective attorney is the best step toward making that happen. Getting out of jail is a huge priority.

Blaine Police Department Asks For ‘Nefarious Behavior to Cease’ Due to Coronavirus

Image result for funny police

Humorous article from David Rasbach of the Bellingham Herald reports a Facebook post by the Blaine Police Department Monday, March 16, read: “Due to local cases of #COVID-19, BPD is asking all criminal activity and nefarious behavior to cease.” The post went on to thank all criminals in advance for their cooperation:

According to Rashbach, the post drew 120 reactions and was shared 66 times in its first 40 minutes.

“Schools, restaurants and bars may be closed,” reported Mr. Rashbach. “The Canadians are considering shuttering the border. And it’s almost impossible to find an available pack of toilet paper or a bottle of hand sanitizer anywhere. But one Whatcom County law enforcement agency is still hoping some good can come out of the novel coronavirus pandemic — or at least some good humor.”

Well said, Mr. Rashbach!

Please contact my office if you, a friend or family member face criminal charges during this harsh time of the Coronavirus pandemic. All people faced facing criminal charges have a constitutional right to the presumption of innocence. Hiring a competent, experienced defense attorney is tantamount to safeguarding these rights.

New Year’s Eve DUI Patrols

What To Expect At DUI Checkpoints This New Year's Eve | David Ortiz Bail Bonds | Visalia Bail Bond Store

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.

State-Created Danger Doctrine and Domestic Violence Victims

The Chilling Inaction on Domestic Violence in Russia is Endangering Women's  Lives | Human Rights Watch

In Martinez v. City of Clovis, the Ninth Circuit Court of Appeals held that police officers investigating a DV crime breached the victim’s Due Process rights by intensifying her peril.

BACKGROUND FACTS

Ms. Martinez was a victim of domestic violence. After reporting an incident to police, the investigating officers took her statement in confidence as to physical and sexual abuse by her boyfriend Mr. Pennington in a hotel and then repeated the substance in the presence of the abuser. That night or the next day, Pennington again attacked Martinez, this time resulting in his arrest. Consequently, Ms. Martinez recanted her accusations out of fear that she would again be attacked. Later, Ms. Martinez sued the investigating officers and the Clovis Police Department.

LEGAL ISSUE

Whether Ms. Martinez can recover damages under 42 U.S.C. § 1983 from the law enforcement officers who allegedly placed her at greater risk of future abuse.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals held that the State-Created Danger Doctrine applies because actions of the police put Martinez in greater jeopardy than if they had not arrived. It reasoned that officer Hershberger told Mr. Pennington about Martinez’s testimony relating to his prior abuse, and also stated that Martinez was not ‘the right girl’ for him.

“A reasonable jury could find that Hershberger’s disclosure provoked Pennington, and that her disparaging comments emboldened Pennington to believe that he could further abuse Martinez, including by retaliating against her for her testimony, with impunity,” said the Court. “The causal link between Hershberger’s affirmative conduct and the abuse Martinez suffered that night is supported by Martinez’s testimony that Pennington asked Martinez what she had told the officer while he was hitting her.”

“A reasonable jury could find that Pennington felt emboldened to continue his abuse with impunity.”

The Court further reasoned that the State-Created Danger Doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity.

Nevertheless, the Court also decided the officers were entitled to Qualified Immunity because the law with respect to state-created danger doctrine was not clearly established. He added: “Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.”

Good opinion. Please contact my office if you, a friend or family member face criminal Domestic Violence allegations. Hiring an effective and competent defense attorney is the first and best step toward justice.

Body Camera Evidence Admissible

Image result for body worn camera

In State v. Clayton, the WA Court of Appeals held that police body camera evidence is admissible at trial. It does not violate Washington’s Privacy Act because police interactions with a suspect and witnesses or victims of the crime are not private conversations.

BACKGROUND FACTS

The charges arose from a visit by law enforcement to a Spokane home. On the evening in question, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest. Clayton’s girlfriend told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting.

Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October.

After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial. The jury acquitted Clayton on the assault charge, but convicted him of all three
unlawful possession charges.

COURT’S ANALYSIS

On appeal, Mr. Clayton argues that the police body camera recording was made in violation of the “Privacy Act,” rendering the evidence inadmissible.

The Court of Appeals  ultimately ruled, however, that because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

The Court described how the Privacy Act prohibits recording a private communication unless all parties to the communication consent. Consequently, any information obtained from unknown recordings is inadmissible in court.

More specifically, a communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.  Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private.

When it comes to body-worn cameras, law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. Finally, the person must be told that he or she is being recorded. However, there is no requirement that the individual consent to the recording.

In short, the Court reasoned that conversations with uniformed, on-duty law enforcement officers are typically not private conversations.

“People understand that information they provide to officers conducting an investigation is going to turn up in written police reports and may be reported in court along with the observations made by the officers . . . The conversations took place in his apartment, a place where he had some subjective expectation of privacy, but they also occurred in the presence of five others. The subject matter of the visit—a report of a gun being fired and subsequent search for the weapon—was not a private one.”

Consequently, the trial court did not err in denying the defendant’s motion to suppress and upheld his convictions.

Please read my Search & Seizure Legal Guide titled contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras. Hiring an effective and competent defense attorney is the first and best step toward justice.