Category Archives: Possession of Stolen Motor Vehicle

Washington Rated 8th Worst State for Auto Theft

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Whatcom law enforcement seeing increase in vehicle thefts | Bellingham Herald

Informative article from King 5 News says auto theft increased by nearly 10% in 2020 compared to 2019.

According to the latest National Insurance Crime Bureau’s (NICB) Hot Spots Report, auto thefts increased from 34,172 vehicles in 2019 to 37,465 in 2020, the report found. NICB said, “The auto theft rate, which measures the number of vehicles stolen per 100,000 residents, also increased in Washington in 2020, from 331.06 to 368.46 – the nation’s 8th highest theft rate.”

According to the article, the annual report showed an increase in auto thefts across the entire country. NICB said that vehicle theft is fairly widespread, and the crime increased significantly during the COVID-19 pandemic. In the U.S., a car is stolen every 36 seconds. That makes it the most common property crime, according to the FBI, costing citizens about $6 billion in 2019.

The Washington Association of Sheriffs and Police Chiefs (WASPC) says that property crime is the most common type of crime reported in the state, representing 73.7% of all reported offenses.

Some easy ways to prevent someone from stealing your vehicle in addition to locking your car include parking in a well-lit area, getting an audible alarm, using a smart key and getting a GPS tracker in your car.

According to the article, Vehicle Theft wasn’t the only crime Washington saw go up in 2020. Murder increased 50% and property crimes increased by 13.8%, according to a crime report by the WASPC. Washington, D.C. took the top spot for worst vehicle theft rate with near 563 thefts per 100,000 residents, an increase of 40% from 2019 to 2020. The nation’s capital was followed by Colorado, California, Missouri and New Mexico.

Vehicle Theft crimes are serious. Penalties will depend on the nature of the theft. It could range from a lesser crime, or misdemeanor, to a felony. Felonies have varying degrees of seriousness, with accordingly varying degrees of punishment. Felonies are generally punished by incarceration, and so may be more serious misdemeanors. Fines are likely also involved for someone convicted of vehicle theft.

The amount of both the fine and jail time are based on a number of factors, including:

  • How much the car was worth;
  • Whether someone occupied the vehicle at the time of the theft;
  • Whether the thief used a weapon in committing the crime;
  • Whether anyone was hurt during the act of the theft of vehicle; and
  • Whether the accused thief has been convicted of previous crimes.

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

“Unlawful” Isn’t “Knowing”

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Skagit County Criminal Defense, Washington Court of Appeals, , , , ,

This man has had so many scooters stolen he can't get theft insurance anymore - Wales Online

In  State v. Level, the WA Court of Appeals held that the term “Knowledge” cannot be inferred from the use of the term “Unlawfully” in the context of a Possession of Stolen Motor Vehicle charge.
BACKGROUND FACTS
A police officer stopped Mr. Level for driving a moped without wearing a helmet. The condition of the moped led the officer to suspect it was stolen. A review of the moped’s VIN confirmed this suspicion. The State charged Mr. Level with possession of a stolen motor vehicle. The Prosecutor’s charging documents, in pertinent part, said the following:
“The crime of Possession of a Stolen Motor Vehicle, Count 5, the maximum penalty for which is 10 yrs. imprisonment and/or $20,000 fine, plus restitution, assessments and court costs, in that the said Jacob Daniel Level in the County of Stevens, State of Washington, on or about July 22, 2019, did unlawfully possess a stolen motor vehicle, to-wit: a Taotao Scooter, the property of (victim’s name omitted); Contrary to RCW 9A.56.068(1), and against the peace and dignity of the State of Washington.”
A jury convicted Mr. Level of the stolen vehicle charge. He timely appealed on arguments that the charge failed to apprise him of any component of knowledge. Consequently, this violated his constitutional right to notice and required reversal of his conviction.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Level.
“The crime of possession of a stolen motor vehicle includes an element of knowledge,” said the Court. “The type of knowledge required has two components: the defendant must both knowingly possess the motor vehicle and also act with knowledge that the motor vehicle had been stolen.”
The Court raised and dismissed the State’s arguments that allegations of “‘unlawful and felonious’” conduct sufficient imply guilty knowledge in the context of drug and firearm offenses. “But none of our decisions have held that knowledge can be inferred from the use of “unlawfully” in the context of a possession of stolen property charge,” said the Court. Furthermore, the court reasoned that proof of knowledge is multifaceted. The State must not only prove knowing possession, but also that the defendant knew of the object was stolen.
“Given the state of the law, an information’s allegation that the defendant acted unlawfully is insufficient to convey an inference that the conduct was done with a mental state of knowledge.” ~WA Court of Appeals
Thus, reasoned the Court, the inclusion of the adverb “unlawfully” in the charges does not satisfy the requirements of sufficient notice.
Next, the Court held that the remaining language in the State’s charges was insufficient to fill in the gaps. Although the State tried to salvage its charges by pointing to the allegation that the moped was the property of someone other than Mr. Level, that contention was inadequate. “It says nothing about Mr. Level’s knowledge. It merely confirms that the moped was stolen,” said the Court. With that, the Court reversed Mr. Level’s conviction.
My opinion? Good decision. In criminal law, the defendant must have both the Mens Rea and Actus Reus to commit the crime. Mens Rea refers to criminal intent. The literal translation from Latin is “guilty mind.” A mens rea​ refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Actus Reus refers to the act or omission that comprise the physical elements of a crime as required by statute.
The only exception is if the charged crime is a Strict Liability crime. Strict liability exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. Crimes like DUI, possession crimes and statutory rape are all examples of strict liability offenses.

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.

Disruptive Defendants

Bellingham Defense Attorney, Drug Offenses, Due Process, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Irate Florida man Alan McCarty found guilty of threatening to kill ...

In State v. Davis, the WA Supreme Court upheld a trial judge’s findings that a disruptive defendant waived his right to be present at trial.

BACKGROUND FACTS

In March 2014, the State charged Davis with two counts of possessing a stolen vehicle and one count of possession of a controlled substance. He waived his right to counsel. The court found Davis knowingly and voluntarily waived his right to counsel, and he proceeded pro se.

Mr. Davis’s path toward trial was rocky. He was incarcerated while the charges were pending. He also had troubles communicating with his investigator, and his motions to continue his case were denied.

At the CrR 3.5 hearing, Davis again sought a continuance and attempted to withdraw as his own counsel. The judge denied both motions. In response, Davis became irate. He screamed that he wanted a new judge. The court warned Davis that outbursts and disruptions would lead to his removal. Davis said, “You can remove me now. What have we been doing here? I don’t even want to be here. So remove me. I don’t care. I told you that. You can hold your trial without me.”

Trial proceeded. Davis returned to court and represented himself without significant incident until the State commenced its case in chief. He took numerous bathroom breaks throughout the day. At one point, however, Mr. Davis returned to the courtroom and discovered his water was removed by court staff.

Again, Mr. Davis He grew irate. He began a tirade of expletives, pounding on the table with his fists, and yelling at an extremely loud volume, at one point screaming “F**k you!”  to the judge. Davis was warned that he would be removed from the courtroom if he was going to continue to raise his voice and curse. The State attempted to proceed with questioning witnesses, but Davis refused to cease his outbursts. The judge temporarily cleared the jury.

Davis repeatedly said, “You can hold your trial without me,” and the court replied, “I’m going to do that.” Davis went as far as to remark, “Thank you. Thank you. Just go ahead with your kangaroo court . . . . I’m done with it.” During this exchange, Davis shouted at the top of his lungs, swearing, and apparently moved to exit the courtroom. The judge stopped Davis in order to make an oral ruling. She found that Davis was voluntarily absenting himself from the proceedings, noting that Davis intentionally drank more water in order to delay trial with bathroom breaks, often during critical portions of witness testimony.

After Davis left the courtroom, the jury returned and the State resumed its direct examination. The State questioned officers involved in Davis’s arrest, asking about the cocaine discovered in his possession and his voluntary statements given after arrest. Davis was not present to cross-examine either witness. He was absent for approximately 50 minutes of trial.

The following day, Davis returned. The court warned him that any profanity or disruptions would result in his removal. Davis agreed, though he continued to interrupt and ask for standby counsel, which the court denied. Despite Davis’s combative behavior, the trial proceeded with Davis present. Davis was convicted on all counts.

Davis appealed. The Court of Appeals reversed Davis’s convictions. The State appealed to the WA Supreme Court.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court began by saying The Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as well as the Washington state constitution, guarantee the right of the criminal defendant to be present at his or her own trial.

However, the Court also said that the United States Supreme Court and this court have held that a defendant’s persistent, disruptive conduct can constitute a voluntary waiver of the right to be present.

The Court turned to State v. Garza and State v. Thomson as guidance. These cases give the test necessary to answer the primary question of whether Davis waived his right to be present. In short, the crucial test established in these cases was whether the defendant’s absence was voluntary.

“In this case, the trial court did not abuse its discretion in finding that Davis waived his right to be present,” said the WA Supreme Court. “The record shows that Davis wanted to leave the courtroom and the trial judge accommodated him. Davis asked and later yelled, repeatedly, that he did not ‘even want to be here. So remove me. I don’t care. I told you that. You can hold your trial without me.’ The court then reminded Davis that he had another of the State’s witnesses to cross-examine, but Davis stated again that he was done.”

Furthermore, the court said the trial court properly exercised its discretion when it permitted a contumacious and stubbornly defiant defendant who insisted on leaving the courtroom to absent himself from the proceedings. It emphasized that maintaining order in the courtroom is within the discretion of the trial judge, and the judge properly exercised it here.

“Davis repeatedly stated that he did not want to be in court, that he was done, and that he wished to leave. Coupled with his disruptive outbursts that culminated in an abusive shouting match with the trial court, Davis obtained what he consistently told the court he wanted: leaving the proceedings. We hold that Davis waived his right to be present at trial.”

Accordingly, the WA Supreme Court reversed the Court of Appeals, affirmed the trial court’s
ruling on voluntary absence and upheld Mr. Davis’s criminal convictions.

Please contact my office if you, a friend or family member face criminal charges. It’s never a good idea to represent yourself at criminal jury trials. Hiring an attorney is the first and best step toward justice.

Inventory Searches, Automatic Standing, & Stolen Vehicles.

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Evidence, Inventory Searches, Methamphetamine, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Property Crimes, Search Warrant, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Border Patrol agents find meth in car, arrest driver - Baltimore Sun

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

BACKGROUND FACTS

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

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

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

ISSUES

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

Court Denies “Community Caretaking” Argument

Bellingham Defense Attorney, Constitutional Rights, Evidence, felony, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for community caretaking police

In State v. Beach, the WA Court of Appeals upheld the dismissal of a defendant’s Possession of Stolen Vehicle charges because the police failed to obtain a search warrant and the Community Custody Exception to the warrant requirement did not apply.

BACKGROUND FACTS

On November 27, 2017, a person called 911 to report a young child walking by himself. Officer Nixon responded to the 911 report, and took custody of the child. Officer Nixon decided to drive around the neighborhood to look for the child’s home.

Eventually, the officer saw a house with its front door open. He ran the license plate of the car in the driveway and learned that the car had been reported stolen. He called for backup. At that point, the officer’s interest in determining whether the child lived at the house was secondary to figuring out if this was a home invasion robbery.

Officers arrived. They surrounded the house, with one or two officers going to the back of the house in case someone tried to exit from the back door. Officers knocked loudly on the outside of the house and announced themselves for approximately 30 seconds. When there was no answer, they drew their guns and entered the house, yelling, “This is the Kent Police Department. Come out with your hands up!”

Mr. Beach and his girlfriend Ms. Hall emerged from a rear bedroom. They said that they were sleeping. The officers discovered the couple had outstanding warrants. The officers arrested Beach and Hall. While searching Beach upon arrest, the police found a key to the stolen car in the driveway.

The State charged Beach with one count of possession of a stolen vehicle. Beach moved to suppress any evidence resulting from the warrantless search.

The State argued that the warrantless search was valid under the community caretaking exception because there was real and immediate danger of an ongoing home invasion. The trial court conducted a hearing pursuant to CrR 3.6. After hearing testimony by officers, the court found that the State had not established that the officers were acting within the scope of their community caretaking function, and suppressed the evidence.

Beach moved to dismiss and the court granted the motion. The State appealed.

COURT’S RATIONALE & CONCLUSIONS

The WA Court of Appeals explained that the United States Constitution prohibits unreasonable searches and seizures. Also, the WA constitution is often more protective than the Fourth Amendment, particularly where warrantless searches are concerned.

“Under our state constitution, warrantless searches are per se unreasonable unless one of the narrow exceptions to the warrant requirement applies,” said the Court. “The burden of proof is on the State to show that a warrantless search or seizure falls within one of the exceptions to the warrant requirement.”

A. Community Caretaking Exception to the Warrant Requirement.

The Court said the community caretaking function exception encompasses situations involving emergency aid, and also routine checks on health and safety. Compared with routine checks on health and safety, the emergency aid function involves circumstances of greater urgency and searches resulting in greater intrusion.

Under the health and safety check test, the State must show that (1) the officer subjectively believed someone needed health or safety assistance, (2) a reasonable person in the same situation would believe that there was a need for assistance, and (3) there was a reasonable basis to associate the need for assistance with the place searched.

Also, the State must also show that the encounter under this exception was reasonable, which depends on a balancing of the individual’s interest in freedom from police interference against the public’s interest in having the police perform a community caretaking function. Finally, the State must show that a reasonable person in the same situation would believe that there was a need for assistance.

The Court reasoned that here, there was a 911 report about a child wandering blocks away. When Nixon stopped his police car outside of the residence, the child did not indicate that he had any connection to the house. No connection between the child and the house was established until after the officers entered. “Any concern for the child was not an ongoing emergency that would merit the officers going into the home,” said the Court.

And here, the officers did not know of any requests for help from the house before they entered. They did not know anyone was unaccounted for and saw no evidence anyone had been injured. The officers did not see any broken windows, signs of forced entry, or other evidence of a break-in. Once in the doorway, Officer Nixon did not see anything in disarray inside the home that would indicate a struggle or ongoing emergency. When the officers went into the home, the house was in “fine condition.”

Consequently, the Court of Appeals upheld the trial court’s decision that the community caretaking exception to the warrant requirement did not apply and suppressed the evidence.

Please read my Legal Guide titled Search and Seizure and contact my office if you, a friend or family member are charged with a crime and police conducted their search under the “Community Caretaking” exception to the warrant requirement. Possibly, evidence obtained through the search could be suppressed and the charges dismissed.

Credit Card Value

Access Devices, Bellingham Defense Attorney, Drug Offenses, Identity Theft, Methamphetamine, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Possession of Stolen Property, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for cancelled credit card

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

Courtroom Disruptions

Bellingham Defense Attorney, Drug Offenses, police, Possession of Stolen Motor Vehicle, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Irate Florida man Alan McCarty found guilty of threatening to kill judge who ruled against him in custody dispute - News - - ,

In State v. Davis, the WA Court of Appeals held that a defendant’s Sixth Amendment right to question witnesses at trial was violated when the defendant was removed for being disruptive.

FACTUAL BACKGROUND

On January 23, 2014, a King County Sheriff’s deputy arrested Davis for possession of a stolen Hyundai vehicle.

Two and a half weeks later, on February 11,2014, a Federal Way Police Department officer observed a Buick parked near a park-and-ride and saw Davis standing outside the car, making furtive movements. As Davis got into the car to drive away, the officer recorded the license plate. The owner had reported the vehicle as stolen. the officer then initiated a traffic stop and arrested Davis for possession of a stolen vehicle — the Buick. A search of Davis recovered crack cocaine in his shirt pocket.

On May 19, 2014, the State charged Davis with two counts of possession of a stolen vehicle, and one count of possession of a controlled substance.

Davis motioned for standby counsel – an attorney who is appointed to assist a client who has invoked his/her right to self-representation – at numerous times throughout his pretrial proceedings. His requests were denied each time.  The court stated Davis must choose between having counsel and representing himself. Davis chose to proceed without a lawyer. The case proceeded to trial.

During trial, the The State Prosecutor attempted to continue its examination of a police officer, but Davis repeatedly interrupted to make comments about the water. The trial court temporarily retired the jury. A heated discussion took place to include the following:

THE COURT: Screaming at the top of his lungs, the jury–
THE DEFENDANT: And I’m going to continue to scream. Where’s my fucking water?
(Defendant screaming simultaneously with court)
THE COURT: I need to proceed with the trial, and I am finding that he is voluntarily absenting himself from the rest of these proceedings under State v. Garza, G-A-R-Z-A, and the record should reflect that he continues to speak on top of his lungs, swearing, accusing me of all kinds of things.
THE DEFENDANT: You’re being an asshole, and I can be one, too.
THE COURT: You’re now removed from the court.
THE DEFENDANT: Good. And fuck you very much, asshole. Fuck this kangaroo court shit.

At this point, it was after three o’clock in the afternoon. In Davis’s absence, the State continued questioning a police officer who testified as to finding crack cocaine in Davis’s pocket. The State then examined the police officer who had identified the stolen Buick, initiated the traffic stop, and arrested Davis.

The court did not give Davis an opportunity to cross-examine either officer.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals ruled that although (1) Davis did not have a right to standby counsel, and (2) the court properly removed him,  it nevertheless violated his Sixth Amendment right to representation by allowing the State to examine two of its witnesses in his absence and not affording him an opportunity to cross examine the witnesses.

The court reasoned that Davis went unrepresented during the testimony of police officers and was not given the opportunity to cross-examine them.

“He did not knowingly and voluntarily waive his right to representation and agree to have an empty defense table while the State questioned two critical witnesses.”

“This remains the case despite his decision to represent himself,” reasoned the Court of Appeals. “As reflected above, cases from other jurisdictions support this conclusion. We are unaware of authority supporting a contrary result.” Accordingly, the Court of Appeals concluded that leaving Davis without representation at trial violated his Sixth Amendment right to representation and remanded for a new trial.

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.

Abandoned Cell Phone Searches

Abandonment Doctrine, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, felony, law enforcement, Plain View, police, Possession of Stolen Motor Vehicle, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Technology, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Samalia, the WA Supreme Court held that although cell phone information is protected by the Constitution, the defendant abandoned this privacy interest when he voluntarily left the cell phone in a stolen vehicle while fleeing from police.

Defendant Adrian Sutlej Samalia fled on foot from a stolen vehicle during a lawful traffic stop, leaving his cell phone behind in the vehicle. After Samalia successfully escaped, the police searched the cell phone without a warrant and made contact with one of the numbers stored in the cell phone. That contact led to Samalia’s identification as the owner of the phone and driver of the stolen vehicle.

On these facts, the State charged Samalia with Possession of a Stolen Vehicle. Samalia moved to suppress the cell phone evidence under CrR 3.6, arguing that the officers violated his constitutional rights when they seized and searched his cell phone with neither a warrant nor a valid exception to the warrant requirement.

The State responded that the warrantless search was valid under the abandonment doctrine. The trial court held that Samalia voluntarily abandoned any privacy interest that he had in the cell phone by leaving it in the stolen vehicle, which he also voluntarily abandoned, while fleeing from Office Yates. After denying Samalia’s suppression motion and subsequent motion for reconsideration, the trial court found Samalia guilty as charged in a bench trial.  Samalia appealed to Division III of the WA Court of Appeals. They upheld the trial court’s decision under the abandonment doctrine.

Ultimately, the WA Supreme Court decided the search was lawful and upheld Samalia’s conviction. It reasoned that article I, section 7 of Washington’s Constitution states that “no person shall be disturbed in his private affairs … without authority of law,” and although the WA Constitution embraces the privacy expectations protected by the Fourth Amendment to the United States Constitution – and in some cases, may provide greater protection than the Fourth Amendment – the search was nonetheless lawful under the abandonment doctrine.

ABANDONMENT DOCTRINE

The Court reasoned that the “abandonment doctrine,” a person loses normal privacy interests in their property upon abandoning it. The abandonment doctrine is not rooted in any obligation by law enforcement to find the owner of property. Basically, it allows law enforcement officers to retrieve and search voluntarily abandoned property without implicating an individual’s rights. The court reasoned that in this sense, voluntarily abandoned property is different from lost or mislaid property, in which the owner maintains a privacy interest in the property and the finder may have an obligation to seek out the owner to return the property.

Thus, when an individual flees from law enforcement and leaves a cell phone behind in a stolen vehicle, a trial court may find that the cell phone is no less abandoned than any other item that was also left in the stolen vehicle.

Here, the Court declined to find an exception to the abandonment doctrine for cell phones. Consequently, the WA Supreme Court decided the trial court properly found abandonment under these facts.

In conclusion, the WA Supreme Court affirmed Samalia’s conviction on the grounds that the information derived from the search of Samalia’s cell phone was properly admitted as evidence under the abandonment doctrine.

DISSENTING OPINION

Justice Yu authored the dissenting opinion, which was also signed by Justice Stephens and Justice Sheryl Gordon McCloud. In short, these dissenting justices all agreed that common law doctrines like the Abandonment Doctrine cannot be applied mechanically to new technology. Second, the abandonment doctrine applies to personal property generally and not digital technology. Third, digital cell phone data remains a private affair, even if the cell phone itself has been voluntarily abandoned.

“The people of Washington are entitled to hold safe from government intrusion the unprecedented wealth of personal information accessible through a cell phone, even if the phone itself has been voluntarily abandoned. If government officials discover a cell phone and want to search its digital data for evidence of criminal activity, they may seize and secure the cell phone to preserve any evidence it may contain, but they must obtain a warrant before searching its digital data. Because the police did not obtain a warrant here, the search was unlawful and its fruits should have been suppressed. I respectfully dissent.”

My opinion?

Last year, I discussed this case when the Court of Appeals decided it in my blog post titled, State v. Samalia: Search of Abandoned Cell Phone is Lawful. Again, I disagree with the court’s majority decision in this case. The trial court should have suppressed the cell phone search back in the beginning of this case. Under these circumstances, the abandonment doctrine is simply not the proper legal vehicle to permit a cell phone search. Using this doctrine leaps too far in the wrong direction. Kudos to the dissenting judges in this case. Although the decision was not deeply divided (6-3), the dissenters got it right. Officers need to get search warrants. Period.

My general advice to the general public?

Never leave incriminating evidence on your cell phone. No pictures, videos, nothing. A lost phone could now be considered “abandoned” and searchable by authorities.

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

State v. Wisdom: Unlawful Search of Zipped Shaving Kit Bag

Bellingham Defense Attorney, Constitutional Rights, Dismissal, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Miranda, police, Possession of Stolen Motor Vehicle, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Interesting opinion. In State v. Wisdom, the WA Court of Appeals Division III decided the removal and warrantless inspection of a zipped shut shaving kit bag found in the front seat of a stolen vehicle the defendant was driving was not a lawful search incident to arrest because  the defendant sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. The methamphetamine found in the zipped shut shaving kit is not lawful pursuant to the impound inventory doctrine, as unzipping the kit exceeded the lawful scope of an impound.

Defendant Heath Wisdom drove a Chevrolet pickup truck with an ATV in its back. Someone earlier reported both vehicles as stolen. Yakima County Sheriff Deputy Nate Boyer, while on patrol, passed the pickup, and Boyer’s automated license plate reader identified the pickup as stolen. Officer Boyer pulled Wisdom over and arrested him for possession of a stolen vehicle. Boyer handcuffed Wisdom, searched his body, and escorted him to the patrol vehicle. Officer Boyer found on Wisdom’s body a pipe that Wisdom admitted he used for smoking methamphetamine.

Deputy Nate Boyer advised Heath Wisdom of his Miranda rights. Officer Boyer asked if there were drugs in the truck, and Wisdom replied that methamphetamine lay on the front seat. Officer Boyer looked inside the cab of the truck and saw filters, some cleaner, and a black “shaving kit type” bag. Officer Boyer concluded that the bag contained the methamphetamine. The toiletry bag was closed, but Boyer spied money through the mesh side of the bag.

After photographing the truck, Deputy Boyer removed the bag from the vehicle, opened it, and found methamphetamine, cocaine, ecstasy, heroin, drug paraphernalia, and two thousand seven hundred dollars in cash. Heath Wisdom told Deputy Boyer that he owned the black bag. Deputy Boyer had not asked Wisdom if he owned the black bag before searching inside the bag.

Deputy Boyer never obtained a warrant for his search, nor did he request Heath Wisdom’s consent before opening the black bag. Law enforcement impounded the truck and ATV, since the legal owner could not be located.

The State of Washington charged Heath Wisdom with three counts of Possession of a Controlled Substance in violation of RCW 69.50.4013(1) (cocaine, ecstasy, and heroin) and one count of Possession of a Controlled Substance with Intent to Deliver under RCW 69.50.401(1) (methamphetamine). Wisdom moved under CrR 3.6 to suppress all evidence found in the black toiletry bag. However, the trial court denied Heath Wisdom’s motion to suppress. The WA Court of Appeals accepted review of this case.

First, the Court reasoned that the search incident to arrest exception to the warrant requirement did NOT excuse police from obtaining a search warrant before unzipping and perusing the inside of the shaving kit bag. The court’s opinion was quite lengthy in explaining the need for society to trust police, and that doing so required officers to obtain search warrants in cases like this, and that failure to do so violates a defendants rights under article I, section 7 of the WA Constitution as well as the Fourth Amendment to the U.S. Constitution.

The Court emphasized how the caselaw treats “luggage and other closed packages, bags, and containers” as unique for purposes of police searches. Washington courts recognize an individual’s privacy interest in his closed luggage, whether locked or unlocked. Indeed, the Court gave a very colorful analyses on this subject:

A person does not rummage through a woman’s purse, because ofsecrets obtained therein. A man’s shaving kit bag can be likened to a woman’s purse. The kit bag could obtain prescription drugs, condoms or other items the owner wishes shielded from the public. The bag is intended to safeguard the privacy of personal effects. Literature, medicines, and other things found inside a bag may reveal much about a person’s activities, associations and beliefs.

The Court further reasoned that Washington allows a few jealously and carefully drawn exceptions to the warrant requirement, which include exigent circumstances, searches incident to an arrest, inventory searches, plain view searches, and Terry stops. Furthermore, under Arizona v. Gant, a warrantless vehicle search incident to arrest is authorized when the arrestee would be able to obtain a weapon from the vehicle or reach evidence ofthe crime of arrest to conceal or destroy it. Here, Heath Wisdom sat handcuffed in the patrol car at the time of the seizure and search of the toiletry bag. He lacked access to the bag.

Furthermore, under State v. Snapp, the Court reasoned the WA Constitution disapproves expansive application of the search-incident-to arrest exception to the period of time after the arrestee is secured and attendant risks to officers have passed. When a search can be delayed without running afoul of concerns for officer safety or to preserve evidence of the crime of arrest from concealment or destruction by the arrestee, and does not fall within another applicable exception, the warrant must be obtained. The police officer can prevent destruction of evidence by holding the bag as a sealed unit until obtaining a warrant.

Finally, the Court ruled that the police officer’s inventorying of the pickup’s contents did NOT excuse the need to obtain a search warrant. Inventory searches, unlike other searches, are not conducted to discover evidence of crime. Although a routine inventory search does not require a warrant, a police department policy should not, however, justify an unconstitutional search. The permitted extent of an inventory search pursuant to police department policy must be restricted to effectuating the purposes that justify the exception warrant clause.

In conclusion, the Court of Appeals held the warrantless search inside of Mr. Wisdom’s black bag was not justified by either a search incident to arrest or an inventory search. The court reversed the trial court’s denial of Mr. Wisdom’s motion to suppress evidence, reversed his four convictions, and dismissed all charges filed against him.

Good opinion.

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

State v. Samalia: Search of Abandoned Cell Phone is Lawful

Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Due Process, Evidence, felony, Forensics, law enforcement, police, Possession of Stolen Motor Vehicle, Pretrial Investigations, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals, Whatcom County Criminal Defense,

Why this B.C. woman's 'cell phone in the car' ticket should never have been issued - Vancouver Is Awesome

In State v. Samalia, the WA Court of Appeals upheld the defendant’s conviction for Possession of a Stolen Motor Vehicle under RCW 9A.56.068 because the police used evidence from the defendant’s cell phone found in the abandoned stolen vehicle after he fled from the vehicle and evaded pursuit.

Yakima Police Officer Ryan Yates was on patrol when his vehicle license plate reader indicated he had passed a stolen vehicle. The officer followed the stolen vehicle. The driver got out of the vehicle and faced towards Officer Yates. The driver would not obey Officer Yates’ command to get back in the vehicle and fled. Officer Yates pursued the male driver but he got away.

Officer Yates searched the car and found a cell phone in the center console. Officer Yates conducted some investigations and discovered that the phone belonged to the defendant Mr. Samilia. Later, Officer Yates located Mr. Samalia’s picture in a police database. Officer Yates then identified Mr. Samalia from the database picture as the fleeing man who had been driving the stolen vehicle.

The State charged Mr. Samalia with possession of a stolen motor vehicle. He moved unsuccessfully to suppress the cell phone evidence under ER 3.6. From the above facts, the trial court concluded the cell phone was abandoned, therefore, Mr. Samalia no longer had an expectation of privacy in it. Following a bench trial, the court found Mr. Sam alia guilty as charged. He appealed.

The court reasoned that a warrantless search and/or seizure violates the WA Constitution unless it falls under one of ”’a few jealously guarded exceptions” to the warrant requirement. Searching voluntarily abandoned property is an exception to the warrant requirement. In other words, law enforcement may retrieve and search voluntarily abandoned property without a warrant or probable cause.

The court also considered the status of the area where the cell phone was located. Here, the search area was an unattended stolen vehicle that Mr. Samalia had been driving and had fled from when a police officer approached and directed him to return to the vehicle. Consequently, the court found that a suspect’s hasty flight under these circumstances is sufficient evidence of an intent to abandon the vehicle. In conclusion, because the cell phone was abandoned; used in pursuit of the fleeing suspect, and not directly used to identify Mr. Samalia, the court held that the trial court did not err in denying suppression of Mr. Samalia’s identification from a police database.

My opinion?

I disagree with the court’s decision. This decision is too great a leap in the wrong direction; and fails to follow Washington’s current jurisprudence. Despite the Court’s reasoning, there is NO reported Washington decision which has directly addressed whether a citizen relinquishes his reasonable expectation of privacy in the data on his cell phone by leaving the phone behind at the scene of a crime.

Our jurisprudence says police must generally secure a warrant before conducting a search of data on a cell phone – even one that has been left behind in a place where its owner has no privacy interest. Requiring a search warrant will assure that there is probable cause to believe that the defendant is involved in criminal activity and that evidence of the criminal activity can be found in the data on the cell phone.

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.