Category Archives: Privacy

State v. Witherrite: Ferrier Warnings Do Not Apply to Car Searches

Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, Knock & Talk, law enforcement, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Unreasonable Search and Seizure - Passengers, Tire Chalking, Warrantless Searches

Interesting. In State v. Witherrite, the Court of Appeals decided that law enforcement officers need not give Ferrier warnings for car searches because an automobile should not be treated in the same manner as a home.

A deputy sheriff stopped Ms. Witherrite for a traffic violation and had her perform field sobriety tests. The deputy then received permission to search Ms. Witherrite’s car after advising her that at any time she could stop or limit the scope of the search. The deputy did not tell her that she had the right to refuse consent.

The vehicle search turned up marijuana, methamphetamine, and drug paraphernalia. The prosecutor ultimately charged Drug Offenses for each of those items. She moved to suppress the evidence, arguing that her consent was invalid due to the absence of the warnings required by State v. Ferrier, 136 Wn.2d 103,960 P.2d 927 (1998). The trial court disagreed, concluding that Ferrier did not extend to vehicles and that Ms. Witherrite had consented to the search. The court found her guilty as charged. Ms. Witherrite timely appealed.

The issuel presented on appeal was whether the Court would extend Ferrier warnings to vehicle searches.

Some background on Ferrier is necessary. In Ferrier, the Washington Supreme Court faced a situation where officers wanted to get inside a house to see if they could smell growing marijuana which they suspected was present on the basis of an unsupported tip. The officers did not tell the occupant that she had the ability to refuse consent. After being invited into the home, the officers asked for consent to search the residence. A detective explained that this “knock and talk” procedure was used in order to avoid seeking a search warrant. The defendant consented to the search and was convicted of the charges.

The Washington Supreme Court reversed the conviction, ruling that because the woman had a heightened right of privacy in her home. Under article I, section 7 of the WA Constitution, officers could not enter a home to seek voluntary consent to search the dwelling without first informing her that she did not need to consent to the entry. The court’s analysis repeatedly emphasized the heightened protection given the home under our constitution. The court then adopted the following rule:

When police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.

Despite the above rule, the WA Court of Appeals in this case decided Ferrier warnings are NOT applicable outside of the home because the Washington Supreme Court has long distinguished houses from vehicles in the search and seizure context.

One particularly instructive case the court examined was State v. Vrieling, 144 Wn.2d 489,28 P.3d 762 (2000). There, a deputy sheriff stopped a motor home and arrested the driver, Ms. Vrieling. A search of the motor home was conducted incident to the arrest. The question before the court was whether the then-existing vehicle search doctrine applied to the search of the motor home, which is essentially a house-like vehicle. The court ultimately concluded that when a motor home is used as a vehicle, the vehicle search doctrine applied and apparently, Ferrier warnings do not.

The treatment of the home as most deserving of heightened protection under the WA constitution led the court to conclude that Ferrier warnings need not be given prior to obtaining consent to search a vehicle.

My opinion? Sad as it seems, this opinion makes sense. There certainly are differences between a car and a home. Simply put, homes have more privacy protections than cars.

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. Espey: Prosecutor’s Improper Comments During Trial Reverses Defendant’s Convictions

Assault, Burglary, Constitutional Rights, Drug Offenses, Due Process, felony, Firearm, Jury Trial, Privacy, Prosecutorial Misconduct, Robbery, Violent Crime, Washington Court of Appeals, , ,

New trial ordered for murder suspect; Fifth District says Baricevic allowed improper testimony | Madison - St. Clair Record

Good opinion. In State v. Espey, The Court of Appeals ruled that a Prosecutor’s improper comments during a jury trial required reversal of the defendant’s convictions.

Mr. Espey was charged with Robbery First Degree, Burglary First Degree, Unlawful Possession of a Firearm First Degree, Possession of a Stolen Firearm and Unlawful Possession of a Controlled Substance. He had three separate jury trials. During closing argument at the second trial, the prosecutor argued the jury should consider Espey’s statement to police in light of the time he had spent consulting with attorneys prior to making the statement. The prosecutor said the following:

“Where I suggest you start is, start with his own recorded statement that he gave to the police. Keep in mind that he had been on the run for approximately six weeks. Keep in mind that he had already consulted with two attorneys, Chip Mosley and Gary Clower. He had lots of time to figure out what story he was going to tell the police.

If you have ever dealt with somebody who is a good liar, they have a pattern. What they do is this: admit everything you can’t admit without getting into trouble and only deny the stuff that you have to . . . You heard Tom Espey’s story in there. ‘I’m not guilty of robbery because i personally didn’t take anything. I’m free. Okay, I did everything else, but guess what? You can’t touch me.’ And he is wrong. He is wrong because he doesn’t understand what it means to be an accomplice. He doesn’t understand what accomplice liability means.”

Defense counsel did not object to these highly inflammatory and prejudicial statements. The jury convicted Espey of 3 of the 5 felonies.

In overturning the convictions, the Court of Appeals reasoned that the Prosecutor’s comments were so flagrant and ill-intentioned that no curative instruction could have stopped their prejudicial effect from swaying the jury. Therefore, defense counsel’s failure to object at trial did not waive the issue.

The court further reasoned that a defendant has a right to counsel under the state and federal constitutions under the 6th Amendment of the U.S. Constitution and article 1, subsection 22 of the Washington Constitution. Under these laws, several courts have held that a prosecutor violates these rights by using “an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment,” to imply guilt or suggest that the defendant hired an attorney to concoct an alibi. No prosecutor may employ language which denigrates the right of a criminal defendant to retain counsel of his choice, or otherwise limits the fundamental due process right of an accused to present a vigorous defense.

Finally, the court reasoned that the Prosecutor strikes at the core of the 6th Amendment right to counsel when it seeks to create an inference of guilt out of a defendant’s decision to meet with defense counsel. “That is precisely what the state did here and reversal is required as a result. The State thereby improperly commented on and penalized Espey’ s exercise of the right to counsel, a right guaranteed by the state and federal constitutions.”

The Court of Appeals reversed the convictions.

My opinion? Great decision.

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. Jardinez: Parole Officer Conducts Overbroad Search of Defendant’s iPod

Constitutional Rights, Department of Corrections, Evidence, Exigent Circumstances, felony, Firearm, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

How to distinguish a 5.5th generation 'Enhanced' iPod - Macintosh How To

Good decision.

In State v. Jardinez, the Court of Appeals held that a community corrections officer’s (CCO) review of video on a parolee’s iPod Nano violated the parolee’s constitutional rights because the CCO did not have a reasonable suspicion based on articulated facts that the iPod Nano contained evidence of past, present or future criminal conduct or violations of the parolee’s conditions of release.

The defendant Felipe Jardinez was an parole for Drive-By Shooting and Unlawful Possession of a Firearm Second Degree. He served prison time followed by 18 months of community supervision. The conditions of community custody included requirements to report to his CCO, refrain from possessing controlled substances and refrain from possessing firearms.

On November 3,2011, Felipe lardinez missed a scheduled meeting with his CCO. The CCO called Jardinez. The two scheduled to meet the next day. During the appointment, Martinez asked Jardinez to submit to a urinalysis test. Jardinez admitted that the test would show marijuana use.

The CCO instructed Jardinez to empty his pockets. Jardinez placed an iPod Nano onto a desk. The CCO was interested in the iPod because parolees occasionally take pictures of themselves with other gang members or “doing something they shouldn’t be doing.” When the CCO handled the iPod, Jardinez appeared nervous. Nevertheless, the CCO lacked facts that the iPod video player would show evidence of a crime or violation of the conditions of the defendant’s community custody.

The CCO accessed the iPod. He found a video recorded earlier that morning. The CCO played the video. It showed  Jardinez pumping a shotgun in his bedroom. Jardinez was arrested. Police searched his home and found the shotgun seen in Jardinez’s iPod video.

Jardinez was charged with Unlawful Possession of a Firearm First Degree. Jardinez moved to suppress the evidence obtained through the CCO’s search of his iPod, and all evidence seized as a result of law enforcement officers searching his home as the spoiled fruit of the unlawful viewing of the video on his iPod.

The trial court granted Felipe Jardinez’s motion to suppress. The court concluded that a warrantless search of the iPod would be justified only if the CCO had a reasonable suspicion based on articulated facts that the device contained evidence of past, present or future criminal conduct or violations of the defendant’s conditions of community custody. The case went up on appeal.

At issue was whether the CCO had legal authority to search the content of Jardinez’s iPod when the CCO did not expect the search to yield evidence related to either of the known parole violations, Jardinez’s failure to appear, or his marijuana use.

The Court of Appeals reasoned that unless an exception is present, a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the U.S. Constitution. A trial court may suppress evidence seized from an illegal search under the Exclusionary Rule or the Fruit of the Poisonous Tree Doctrine.

The Court further reasoned that Washington law recognizes that probationers and parolees have a diminished right of privacy that permits a warrantless search based on probable cause. Parolees and probationers have diminished privacy rights because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. Therefore, the State may supervise and scrutinize a probationer or parolee closely.  Nevertheless, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.

RCW 9.94A.631 provides exceptions to the warrant requirement. RCW 9.94A.631(1) reads:

If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Also, the Court based its decision principally upon the Sentencing Guidelines Commission’s comment about RCW 9.94A.631(1). The Commission wrote as its official comment behind the statute:

The Commission intends that Community Corrections Officers exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the Community Corrections Officer upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the Community Corrections Officer believes to have occurred.

Based on the court’s reading of the statute and its counterpart comment, it found RCW 9.94A.631 did not authorize the CCO’s warrantless search of the contents of Jardinez’s iPod. It affirmed the trial court’s suppression of the evidence of Felipe Jardinez’s unlawful possession of a firearm.

My opinion? Good decision. I’ve posted similar blogs stating that CCO’s and probation officers exercise too much power over defendants. This certainly is one of those cases.

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.

WA Attorney General Says Police Do NOT Need Consent to Record Citizen Activities With Body Cameras

Bellingham, Body camera, Evidence, felony, law enforcement, police, Privacy, Search and Seizure, , ,

Axon rolls out police body cameras with live-streaming capability - GeekWire

Bad decision.

Conversations between law enforcement and members of the public may be recorded on police body cameras without citizen consent, according to an opinion issued today by Washington State Attorney General’s Office. Here’s the opinion is linked below, as well as news articles describing the recent decision:

The AG’s opinion said conversations between law enforcement and the public are generally considered public, even if they take place inside a private residence. Washington law requires two-party consent to record private conversations, but that standard does NOT apply to public ones.

Legal precedent is less clear about an officer recording a conversation between two members of the public, since no case law addresses the subject directly. But the AGO said the Washington State Supreme Court has “strongly indicated” conversations between two people are not private when they know a police officer is present.

Recently, Bellingham Police officers are being outfitted with body cameras, which would record all official interactions with citizens, even inside private residences.

The main issues of the AG’s opinion are stated below:

  1. The Washington Privacy Act, RCW 9.73, does not require the consent of a law enforcement officer to use body cameras attached to police uniforms. A local collective bargaining agreement, however, might limit or prohibit such use.
  2. Conversations between law enforcement officers and members of the public are not generally considered private for purposes of the Privacy Act.
  3. As a general matter, the Privacy Act does not require a law enforcement officer to cease recording a conversation at the request of a citizen, because such conversations are not private to begin with.
  4. In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Laws relating to the retention and disclosure of public records, including records retention schedules, would govern retention and disclosure of recordings.
  5. RCW 9.73.090 does not limit the use of body cameras to the use of such cameras in conjunction with vehicle-mounted cameras.   

My opinion? I was on board with the body cameras until the AG’s Office basically gave police officers permission to circumvent the privacy rights of citizens. Look, the average citizen on the street does NOT assert their Constitutional right to refuse to speak to police officers. Nor does the average citizen refuse to grant an officer’s request to search the citizen’s home or car.

Police can be very persuasive in exercising their authority. So this AG opinion said conversations between law enforcement and the public are generally considered public? Even if the conversations are NOT consensual and take place inside a private residence? Bad decision.

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. Westvang: Ferrier Warnings, Arrest Warrants & Questionable Searches of a Home.

Constitutional Rights, Drug Offenses, Evidence, Knock & Talk, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

Consent to Search When There Are Co-occupants of a Residence — OMAG

In State v. Westvang, the WA Court of Appeals just decided that Ferrier Warnings (discussed below) are NOT necessary when police officers obtain consent to enter a home in order to execute an arrest warrant on a fugitive.

Police were searching for a fugitive named Scott Miller, who had a warrant for his arrest. Officers received a tip that Miller was at Ms. Westvang’s home. They arrived at her home. The  officers informed Ms. Westvang that they were looking for Miller. She said he was not there. Officer Sawyer asked permission to search her home and look for Miller. Although Officer Sawyer did not give full Ferrier Warnings, he informed Westvang that she did not have to consent to the search.

Westvang consented to the search and led officers through her living room, kitchen and bedroom. They did not find Miller. However, after returning to the living room, the officers saw a desk upon which were substances recognized as meth and marijuana, as well as small plastic baggies; a digital scale with a white crystalline substance, and $105 in U.S. currency.

Ms. Westvang was arrested for Possession of a Controlled Substance With Intent To Deliver. Although Westvang’s attorney argued a pretrial motion to suppress the evidence because the officers failed to provide Ferrier warnings, the judge denied her motion. At trial, Westvang was convicted. She appealed.

Some background is necessary. In State v. Ferrier, the WA Supreme Court announced a rule to protect occupants who may not be aware of the right to refuse consent to a search or to limit its scope and duration. The court stated the following:

“When police officers conduct a “knock and talk” for the purposes of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she maylawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.”

Importantly, and after Ferrier was decided, the WA Supreme Court has since ruled under State v. Ruem that Ferrier warnings are not required when law enforcement officers seek consent to enter a home and execute an arrest warrant. Instead, Ferrier warnings are required only when law enforcement officers are conducting a “knock and talk”: entering the home without a search warrant to search for contraband or evidence of a crime.

Here, the officers were not required to give Ms. Westvang any Ferrier warnings because they were not requesting entry to her home to search for contraband or evidence of a crime pursuant to a “knock and talk.” The officers observed Westvang’s consent to enter her home to execute and arrest warrant. Therefore, no Ferrier warnings were required. Based on this reasoning, the WA Court of Appeals affirmed Westvang’s conviction.

My opinion? Cases like this are never easy. Consent walks hand-in-hand with duress. It’s very difficult for the average citizen to say “No” to law enforcement. Instinctively, we believe that refusing to cooperate with an officers request to search will only hinder their duties and bring harsher consequences for failing to cooperate. In these cases, and as soon as possible, it’s always wise to respectfully deny their questions and contact an attorney regarding your legal rights.

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. Brock: The “Time for Arrest” Doctrine

Constitutional Rights, felony, Jail, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Should school officials be allowed to search students? | Debate.org

In State v. Brock, the WA Court of Appeals held that police officers cannot search someone’s backpack and arrest them for Drug Offenses 10 minutes after contacting a suspect on a Terry stop.

“NO,” said the Court of Appeals in a recent decision.  the facts were such that during a Terry stop, an officer separated Mr. Brock from his backpack. The officer subsequently arrested Brock and searched his backpack, but not until nearly 10 minutes after separating Brock from the bag. Officer Olson told Brock that he was not under arrest. Officer Olson asked Brock to put down his backpack, and Brock complied.

Officer Olson did not find any weapons or any other items during his pat down of Brock. He did not pat down or search the backpack at that time. At trial, the trial court denied Brock’s motion to suppress, finding that this was a valid search incident to arrest under article I, section 7 of the Washington Constitution. However, the Court of Appeals reversed the decision.

Some explanation is necessary. A “Terry stop” is a brief detention of a person by police on reasonable suspicion of involvement in criminal activity but short of probable cause to arrest. The name derives from a famous United States Supreme Court decision titled, Terry v. Ohio.

Also, under the “time of arrest” rule, an officer may search personal articles in an arrestee’s actual and exclusive possession at or immediately preceding the time of arrest.

Here, the search of the defendant’s bag did not happen immediately after he was arrested. Officer Olson searched the bag roughly 10 minutes after seizing it from Brock. The bag was secured in Officer Olson’s truck from the time of seizure through the time of the search. Brock was 12 to 15 feet away from the vehicle and the backpack at the time of arrest and during the search of the backpack.

Brock had actual possession of the backpack when Officer Olson initiated the Terry stop and when he seized it. However, Brock did not have actual possession of the backpack at the time of his arrest. Brock’s backpack was neither on his person nor within his area of control at the time of his arrest. While Officer Olson had probable cause to arrest Brock when he seized the backpack, it is the arrest itself—not probable cause—that constitutes the necessary authority of law to search under article I, section 7.

Therefore, to find that this was a valid search incident to arrest, the Court said it must be convinced that, for the purposes of what is in an arrestee’s possession, “immediately prior to arrest” includes either the time between a valid Terry stop and the actual resulting arrest or the time between seizure of the backpack during the Terry stop and the resulting arrest. The Court concluded in saying that Washington Supreme Court’s opinions have not gone this far, and “We decline to do so here.”

My opinion? Good decision. It’s pleasing to know our courts are upholding the WA Constitution and following the stringent search and seizure caselaw. Kudos.

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. Saggers: When Officers Exceed the Scope of Searches Under Terry v. Ohio

911 Call, Assault, Constitutional Rights, felony, Firearm, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Terry V. Ohio (@ohio_terry) | Twitter

In State v. Saggers, the WQA Court of Appeals held that police officers exceed the scope of a Terry Stop when  an informant’s tip is questionably (un)reliable and the exigency of the alleged serious offense has dissipated.

Police arrived at the home of defendant Andrew Saggers because a 911 call indicated an altercation occurred outside his home involving a shotgun. The 911 call was placed from a payphone. Although the caller provided his name, he was unknown to the police. When police went to the payphone, the caller was gone and the phone was hanging from the cord. The police contacted Mr. Saggers.

Although the present situation was neither dangerous nor life-threatening, the police inquired whether Mr. Saggers had a shotgun in the house. He admitted, “Yes.” The police searched his home and found the gun. Mr. Saggers was subsequently charged with Unlawful Possession of a Firearm. At trial, he was found guilty of the charges. The case went up on appeal.

The Court of Appeals held the police officers exceeded the scope of a search under Terry v. Ohio because the informant tip was unreliable and the emergency of any life-threatening situation was already passed. For those who don’t know, Terry v. Ohio is a landmark decision by the U.S. Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

Here, however, the Court of Appeals ruled that although it is understandable that officers faced with a 911 call like this one would rightfully pursue an investigation, the 911 Call itself was unreliable. Additionally, the danger had already passed by the time officers arrived at Sagger’s house. Consequently, the officer exceeded the scope of a valid search under Terry v. Ohio. Based on these findings, the Court of Appeals reversed Saggers’ conviction.

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. Martines: More Good Caselaw on Blood Tests Taken After DUI Arrests

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Both cops, drivers have rights at checkpoints | Local News | scnow.com

In State v. Martines, the WA Court of Appeals held that after police investigate and arrest a suspect for suspicion of DUI, the State may not conduct tests on lawfully procured blood samples without first obtaining a warrant that authorizes testing and specifying the types of evidence for which the sample may be tested.

The defendant was seen driving his SUV erratically. He veered into another car, careened across the highway, bounced off the barrier, and rolled over. A Washington State Trooper arrived and took Mr. Martines into custody. Martines smelled of intoxicants, had bloodshot watery eyes, and stumbled while walking.

Trooper Tardiff sought a warrant to extract blood samples from Martines. His affidavit of probable cause stated that a blood sample “may be tested to determine his/her current blood alcohol level and to detect the presence of any drugs that may have impaired his/her ability to drive.” He obtained a warrant that authorized a competent health care authority to extract a blood sample and ensure its safekeeping. The warrant did not say anything about testing the blood sample.

Martines’ blood was taken at a local hospital. Then it was tested for the presence of drugs and alcohol. The test results indicated that Martines had a blood alcohol level of .121 within an hour after the accident, and that the drug diazepam (Valium) was also present. Martines had a prior conviction for vehicular assault while driving under the influence. The State charged him with Felony DUI.

The trial court denied Martines’ motion to suppress. He was found guilty at trial. The case went up on appeal. The primary issue on appeal was that testing a blood sample for any purpose is a search for which a search warrant is required. Because the warrant authorizing the extraction of blood did not specifically authorize blood testing of any kind, Martines argued that the results should have been suppressed as the fruit of an illegal search.

The court held that (1) the extraction of the blood was one search while (2) the testing of the blood constituted another:

“The extraction of blood from a drunk driving suspect is a search.  Testing the blood sample is a second search.  It is distinct from the initial extraction because its purpose is to examine the personal information blood contains.  We hold that the State may not conduct tests on a lawfully procured blood sample without first obtaining a warrant that authorizes testing and specifies the types of evidence for which the sample may be tested.”

In short, the court held that extracting someone’s blood is a first search, and testing the blood is a second search. The first search – the initial extraction – is totally different than the second search, which is analyzing the blood. Because the second search is so intrusive (blood contains someone’s personal DNA code, pregnancy results, information on diseases, etc.), a second warrant is needed. Consequently, the State may NOT test blood samples without first obtaining a warrant that authorizes testing. The warrant must specifically state the types of evidence they’re looking for.

My opinion? State v. Martines is an interesting decision. I admire the Court of Appeals for making a decision which is consistent with Missouri v. McNeely (discussed in another blog) and going one step further favoring a defendant’s constitutional rights under the 4th Amendment.

The opinion prevents police officers from getting a boilerplate search warrant and going on fishing expeditions when they pull people over on suspicion of DUI. The officers must be trained to determine what exactly they’re looking for; be it drugs, alcohol or both. Saying someone has bloodshot/watery eyes, slurred speech and smells of intoxicants does not, by itself, cut it anymore.

Good job, Court of Appeals. I’m impressed.

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. McNeely: U.S. Supreme Court Says Blood Draws Require a Warrant

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, Exigent Circumstances, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Uncategorized, United States Supreme Court, Washington State Patrol, , ,

Harmless Error Blog: Missouri v. McNeely: Trouble for Implied Consent Laws?

In Missouri v. McNeely, the United States Supreme Court held that police officers investigating DUI must obtain search warrants for blood draws if emergency circumstances – in legal language, exigent circumstances – do not exist.

The issue decided by the U.S. Supreme Court was whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for blood testing in all drunk-driving cases.

The facts were such that the defendant McNeely was stopped by Missouri police for speeding and crossing the centerline. After declining to take a breath test to measure his blood and alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing.

The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a blood sample anyway. McNeely’s BAC sample was well above the legal limit. He was charged with Driving While Intoxicated (DWI).

The U.S. Supreme Court held that rather than applying a blanket per se exigency due to the dissipation of BAC in a person’s body, an exigency must also be based upon “special facts” under a case-by-case analysis.

The Supremes reviewed prior caselaw on this subject. In State v. McNeely, the Court pointed out that a diminishing BAC result upon the passage of time that happens during a DUI investigation is only one factor that must be considered in determining whether a warrant is required.

The Court in McNeely further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. In other words, a warrantless blood draw can still be conducted provided there are other factors articulated by the officer.

My opinion? McNeely is a good, straightforward decision. In short, McNeely holds that when a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained. If an officer cannot get a search warrant in a reasonable time, the officer should explain in great detail why a search warrant could not be obtained.

The officer must be able to articulate what factors were present that created an exigent circumstance. Also, and importantly, “exigent circumstance” cannot be a result of the officer’s conduct. There must be objective, independent facts articulating why exigent circumstances exist to get a warrant.

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.

Unlawful Frisking Violates Constitutional Rights

Constitutional Rights, Drug Offenses, felony, Firearm, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, Washington Supreme Court, , ,

Austin PD defends officer who stopped and frisked woman in video

Good case. In State v. Russell, the WA Supreme Court held that the warrantless search of a small container found on the defendant’s body exceeded the proper scope of a pat-down search under the guise of a “protective frisk for weapons” during a Terry Stop.

The defendant Mr. Russell was stopped for violating several minor traffic laws. The officer recognized Russell from a prior stop. Although the Mr. Russell told officers he was not armed, he did, in fact, have a small pistol in his pocket. The officer frisked Mr. Russell for weapons. The officer felt a small box in Russell’s pants. The box was did not weigh any significant amount, and the officer had no idea whether the box contained a weapon. The officer opened the box. It contained a syringe filled with methamphetamine. The defendant was arrested for Possession of Meth.

The trial court granted Mr. Russell’s motion to suppress the evidence and dismiss the case. However, the WA Court of Appeals reversed the trial court’s decision on appeal. Eventually, the case found its way to the WA Supreme Court.

The WA Supreme Court ruled that although the initial protective frisk was permissible, the officer violated Russell’s constitutional rights when he removed a small container from his pocket and searched it without a warrant. The officer admitted that the container’s contents weighed only a fraction of what a pistol weighs. Because the officer did not have a reasonable belief that the container housed a gun, the warrantless search was not justified.

Furthermore, the Court reasoned that any threat to the officer’s safety ended when he took control of the container. He did not have authority to search it while investigating traffic infractions. Finally, the WA Supreme Court  held that the search was not justified on the basis of consent because the State did not show that Russell consented to the search. For these reasons, the WA Supremes reversed the Court of Appeals.

My opinion? Great decision. Under the law, officers can only search for “hard and sharp” objects which might be used as weapons. Anything else they find is “fruit of the poisonous tree” under an unlawful search. Again, good decision.

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.