Category Archives: Probable Cause

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.

State v. Vanness: Unlawful Search of a Lockbox Inside a Backpack.

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals

LOCKMED GUARDIAN LARGE Combination Lockbox

In State v. Vanness, the WA Court of Appeals Division I decided that the warrantless search of a locked box found inside a backpack that the defendant was wearing at the time of arrest violated both the Fourth Amendment and Washington Const. art. I, § 7.

Defendant VanNess was arrested for having outstanding warrants in Everett, WA. When arrested, VanNess was wearing a backpack and carrying a bag. A police officer removed the backpack and asked permission to search it. VanNess did not respond. Everett Police Department had a policy requiring officers to search backpacks for dangerous items. Following that policy, officers searched VanNess’s backpack and found knives. They also found a small box with a combination lock.

The police officer used a flathead screwdriver to pry open the box. He looked inside. Although he did not see any dangerous items, he saw a scale and small plastic “baggies” and smelled vinegar, which he associated with heroin. The box was delivered to the Everett Police Department’s property room.

Police obtained a warrant to search the box. They found suspected methamphetamine and heroin, a digital scale, a glass pipe, and several plastic baggies. The Prosecutor charged VanNess with Possession of Heroin with Intent to Deliver and Possession of Methamphetamine with Intent to Deliver. Both crimes are Class B felonies. The trial court denied VanNess’s motion to suppress. At trial, the court admitted the evidence. A jury found VanNess guilty of all charges. VanNess appealed.

A warrantless search is per se unreasonable, unless the State can prove a “carefully drawn and jealously guarded exception” applies. These exceptions include a search incident to arrest and an inventory search. If an exception does not apply, a warrantless search is illegal and the exclusionary rule prevents the State from presenting the illegally seized evidence. Here, the defendant argued that the inventory search of his lockbox violated his Constitutional rights.

The Court of Appeals agreed. It reasoned that although State v. Stroud and State v. Valdez each involved a locked container found in an automobile, the court’s consideration of the Chimel v. California applies just as well to the facts of our case:

“Where a container is locked and officers have the opportunity to prevent the individual’s access to the contents of that container so that officer safety or the preservation of evidence of the crime of arrest is not at risk, there is no justification under the search incident to arrest exception to permit a warrantless search of the locked container.”

Under Chimel, the Court reasoned that police officers may conduct a warrantless inventory search (1) to protect the arrestee’s property, (2) to protect the government from false claims of theft, and (3) to protect police officers and the public from potential danger. Courts generally uphold inventory searches conducted according to standardized procedures which do not afford police officers excessive discretion and when they serve a purpose other than discovery of evidence.

The Court of Appeals decided that here, an officer’s compliance with an established police procedure does not constitutionalize an illegal search. Similarly, the court rejected the claim that the possibility of a bomb or dangerous firearm in the locked box established a “manifest necessity” to search the box. They reasoned that without exigent circumstances, a legitimate inventory search only calls for noting such an item as a sealed unit. With that the court concluded that neither the search incident to arrest nor the inventory search exception applies to the officer’s initial search of VanNess’s locked box. Therefore, the police unconstitutionally searched the locked box.

My opinion? Good decision. It appears the Court of Appeals announced a new balancing test for some items found on an arrested person at the time of arrest. Basically, if the item to be searched falls within a category that implicates an arrestee’s significant privacy interests, the court must balance the government interests against those individual privacy interests. Only when government interests in officer safety and evidence preservation exceed an arrestee’s privacy interest in the category of item to be searched may it be searched incident to arrest without a warrant.

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.

State v. Weller: Community Caretaking

Assault, Community Caretaking, Constitutional Rights, Due Process, Evidence, felony, law enforcement, Plain View, police, Probable Cause, Search and Seizure, Search Warrant, Violent Crime, Washington Court of Appeals, , ,

Community Caretaking: Police May Make Stop Without Reasonable Suspicion

In State v. Weller, the WA Court of Appeals decided an officers’ entry into a garage to privately interview children about their allegations of abuse was lawful under the health and safety check community caretaking exception to the warrant requirement. Also, the seizure of the board the children stated was used by the parents while beating the children, was lawful under the plain view exception to the warrant requirement.

Sandra and Jeffrey Weller had six children in their care. In 2011, CPS became suspicious that the Wellers were abusing the children. Eventually, CPS conducted a welfare check of the family home with the assistance of numerous police officers. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children.

Sandra stepped back from the door and the officers entered the house. The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.

Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers saw what appeared to be bloodstains on the board. Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence.

After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. At trial, the Wellers tried to suppress the evidence and dismiss the case on theories

The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime.

However, the trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view.

The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of Assault Second Degree, one count of Unlawful Imprisonment, one count of Assault Third Degree of a Child, and two counts of Assault Fourth Degree. The jury also found Sandra guilty on most counts and the trial court sentenced her for four counts of Assault Second Degree and one count of Unlawful Imprisonment. The defendants appealed.

The Wellers argue that the officers seized the board used to beat CW and CG in an unlawful warrantless search of their garage, and therefore that the trial court erred in denying their CrR 3. 6 motion to suppress the board. The Court disagreed, and held that the trial court did not err when it concluded that ( 1) the officers’ entry into the garage to privately interview the children was lawful under the community caretaking function exception to the warrant requirement, and (2) the seizure of the board was lawful under the plain view exception to the warrant requirement. Some background on these legal principles is necessary.

WARRANTLESS SEARCHES

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies. The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement.

 COMMUNITY CARETAKING

The community caretaking function exception to the warrant requirement arises from law enforcement officers’ community caretaking function and involves two aspects: officers rendering aid or assistance ( emergency aid exception) or making routine checks on health and safety (health and safety exception). Another exception to the warrant requirement is the plain view exception, which allows officers to seize an object if they are lawfully present in a constitutionally protected area and the object is in plain view.

A search pursuant to the community caretaking function exception must be totally divorced from  a criminal investigation. The exception does not apply where an officer’ s primary motivation is to search for evidence or make an arrest.

Here, the Court reasoned that the officers entered the garage because they were trying to find a private place to interview the children in conjunction with their welfare check. Nothing in the record suggests that the officers were searching the garage or looking for evidence.

HEALTH AND SAFETY CHECK INSPECTION

To invoke the health and safety check exception, the State must show that ( 1) the officer subjectively believed someone needed health or safety assistance, and (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. Next, the State must show that the encounter under this exception was reasonable, which depends upon 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.

Here, the Court reasoned that the three requirements for application of the health and safety check exception clearly were satisfied. The officers subjectively and reasonably believed that the Weller children needed health or safety assistance. A trained CPS investigator relayed to the officers her professional opinion that the Weller children were not safe and were expressing severe fear.

PLAIN VIEW

The ” plain view” exception to the warrant requirement applies when officers ( 1) have a valid justification for being in a constitutionally protected area, and ( 2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. The test for determining when an item is immediately apparent for purposes of a plain view seizure is whether, considering the surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Officers do not need to be certain that the item is associated with criminal activity – probable cause is sufficient.

Here, the Court decided the officers were lawfully present in the Wellers’ garage. Further, the surrounding facts and circumstances led the officers to believe that the board was evidence of a crime. As the welfare check progressed, the children said Mr. Weller periodically beat them with a board. Further, when the officers were in the garage, the children began to look for the board. And the children immediately confirmed that the board in the garage was in fact the board used to beat them. As a result, the Court held that the plain view exception to the warrant requirement applied to the officers’ seizure of the board.

The Court of Appeals upheld the convictions.

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. Davis: Unlawful Possession of Firearms, Rendering Criminal Assistance and Exceptional Sentences.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, Exceptional Sentencing, felony, Firearm, Homicide & Manslaughter, Jury Trial, law enforcement, Mount Vernon Criminal Defense Attorney, police, Probable Cause, Rendering Criminal Assistance, Sentencing, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Sherrard man to serve 7 years in prison for possession of stolen guns | wqad.com

WA Supremes gave an interesting opinion touching upon the defendants who were allegedly involved in the Lakewood police officer shootings from last year. In short, the Supreme Court could not reach a 5-4 majority opinion on the issue of whether the State lacked evidence to support the defendant’s convictions for Possession of a Stolen Firearm. However, the State reached a majority “No” decision on the issue of whether Exceptional Sentence applied to this case. 

The underlying facts of State v. Davis are notorious and undisputed. On Sunday, November 29, 2009, Clemmons entered a coffee shop just before 8:00 a.m. with two handguns and began shooting at four Lakewood police officers, fatally wounding three. The fourth officer struggled with Clemmons and shot Clemmons once in the side, but Clemmons wrested the fourth officer’s gun from him, fatally shot him, and left with the stolen gun.

While on the run, Clemmons contacted defendants Eddie Lee Davis and Letrecia Nelson shortly after the murders. Clemmons went to Davis’ home, requested a ride to a house in Auburn, and said he had been shot while killing four police officers. Davis drove Clemmons to Nelson’s home. Nelson let Clemmons and Davis inside. Clemmons told Nelson he had killed four police officers, been shot in the process, and stolen one officer’s gun.

At Clemmons’ request, he was given fresh clothing and help treating his gunshot wound. Nelson put some clothes and the stolen gun in a shopping bag that was left on a counter. Just before leaving, Clemmons asked where the gun was. Davis replied that it was in the bag on the counter and gave the bag to Clemmons. He left the home with the gun, and remained a fugitive from justice. On December 1, 2009, 2-3 days after the incident, Clemmons was gunned down by a Seattle Police Officer who pulled his car over.

Based on their actions following that contact, Davis and Nelson were charged by the Prosecutor and convicted at jury trial of Rendering Criminal Assistance and Possession of a Stolen Firearm. Davis was also convicted of Unlawful Possession of that self-same firearm. The conviction was appealed, and found its way to the WA Supreme Court.

The Court addressed the issues of whether (1) sufficient evidence supported Davis’ and Nelson’s convictions relating to possession of a firearm, and (2) whether the exceptional sentences for rendering criminal assistance factually were legally justified.

1. UNLAWFUL POSSESSION OF A FIREARM

The 4-person “majority” Court answered “Yes” to the question of whether sufficient evidence existed to support the convictions. The court reasoned there are two types of control: actual and constructive. A person actually possesses something that is in his or her physical custody, and constructively possesses something that is not in his or her physical custody but is still within his or her “dominion and control.”

For either type, to establish possession the prosecution must prove more than a passing control; it must prove actual control. The length of time in itself does not determine whether control is actual or passing, and whether one has actual control over the item at issue depends on the totality of the circumstances presented.

In light of the totality of the circumstances, the Court was convinced that the State presented sufficient evidence to support a finding that Clemmons temporarily relinquished control over the stolen gun to Davis and Nelson while his wound was treated and he changed clothes. There was no testimony that Clemmons made any specific requests or orders as to what should be done with the stolen gun while he was at Nelson’s home, and he did not even know where the gun was until he was ready to leave about 15 minutes later.

t is reasonable to infer that someone else decided what to do with the gun and that the decision-makers were Nelson and Davis because Nelson retrieved the shopping bag and put the gun inside it and Davis immediately responded when Clemmons asked where the gun was. Furthermore, both Nelson and Davis retained the ability to take further actions as to the gun until the time Davis gave it back to Clemmons because they knew where it was and Clemmons did not. Therefore, the court believed there was actual control sufficient to establish constructive possession.

2. EXCEPTIONAL SENTENCES

The Court answered “No” to the issue of whether the defendants should receive an exceptional upward sentence for their convictions. The Court said Exceptional Sentences are intended to impose additional punishment where the particular offense at issue causes more damage than that contemplated by the statute defining the offense. In that situation, the standard penalty for the offense is insufficient and an exceptional sentence based on an “aggravating factor” found by the jury remedies that insufficiency.

Here, the Court reasoned that, as a matter of law, the “aggravating factor” at issue cannot apply to Rendering Criminal Assistance charges.  Here, the “victim” was the public at large. However, Exceptional Sentences apply where there is “a destructive and foreseeable impact on persons other than the victim.” Because Rendering Criminal Assistance victimizes the general public, every member of the public is part of the victim class. There is no “other.” Therefore, the exceptional sentences imposed on Davis and Nelson were not legally justified.

The WA Supreme Court was highly divided on this issue. Justice Wiggins appeared to be the swaying vote. He concurred with the dissenting opinion that the evidence was insufficient to sustain Davis’s and Nelson’s firearm possession convictions. However, Justice Wiggins concurred with the majority opinion as far as the decision that the Exceptional Sentences imposed for Eddie Davis’s and Letricia Nelson’s convictions for Rendering Criminal Assistance were not legally justified.

Ultimately, the WA Supreme Court reversed the Court of Appeals and remand for further proceedings.

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. Lawson: Burglary & Voyeurism

Assault, Burglary, Constitutional Rights, Evidence, felony, Privacy, Probable Cause, Uncategorized, voyeurism, Washington Court of Appeals, , ,

How To Tell Who's In The Toilet Stall Next To You Without Peeking At Their Shoes - Allan Ishac

In State v. Lawson, the WA Court of Appeals supported the defendant’s convictions for both Voyeurism and Burglary. Here, the defendant was prosecuted for sneaking inside the women’s restrooms at Harrison Medical Center and Barnes & Noble and spying on different females from bathroom stalls as they entered and used the restroom facilities.

The Prosecution charged the defendant with one count of Burglary First Degree, two counts of Burglary Second Degree, one count of Assault Second Degree, one count of Voyeurism, and two counts of Criminal Attempt of Voyeurism. The jury returned guilty verdicts on each charge except for Assault Second Degree. The defendant appealed the jury verdicts on the argument that the State failed to introduce sufficient evidence to prove the Barnes and Noble voyeurism charge and each of the Burglary charges.

However, the Court of Appeals disagreed. Under statute, a person commits the crime of Voyeurism if he knowingly views another person in a place where that person would have a reasonable expectation of privacy. Here, a person has a reasonable expectation of privacy inside a restroom. The Court reasoned it is undisputed that the defendant viewed women by peeking over the restroom stall door in a place that was clearly delineated for use by women only. It stated, “Although the women’ s restroom was inside an otherwise public building and while a person might not usually disrobe inside the common area, one expects privacy in a restroom.”

 The Court also rejected the defendant’s argument that the evidence is insufficient to support Burglary convictions because voyeurism is not “a crime against person or property,” which is a prerequisite to a Burglary conviction. Instead, the Court reasoned that voyeurism is a crime against a person and, therefore, can serve as the predicate crime for Burglary Second Degree. The Court further reasoned there was sufficient evidence to conclude that the defendant was guilty of the Burglaries because he entered the women’ s restroom with the intent to commit a crime against a person or property.

With that, the Court affirmed the defendant’s convictions.

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. 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. 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.

State v. Garcia-Salgado: DNA Swab is Unlawful if State Lacks Warrant Supported By Probable Cause

Constitutional Rights, DNA, felony, Jail, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

My Rights When Police Want my DNA in a Sex Assault Case | Berry Law

In State v. Garcia, the WA Supreme Court held that collecting a DNA swab from a defendant was unlawful search because it was made without a warrant and without probable cause based on oath or affirmation.

Petitioner Alejandro Garcia-Salgado was convicted of a Sex Offense in King County Superior Court after the results of his D.N.A. test linked him to the victim, and were were admitted into evidence during his trial.  He appealed his conviction, saying that the State lacked probable cause to test his D.N.A. and that conducting the test without his consent pursuant to a court order violated his constitutional rights.

The Washington Court of Appeals affirmed Garcia-Salgado’s conviction, holding that sufficient evidence existed in the record to establish probable cause for a test of Garcia-Salgado’s D.N.A.  Garcia-Salgado appealed this decision to the Supreme Court of Washington.

The WA Supreme Court reasoned that a cheek swab for DNA is indeed a search that intrudes into the body.  A search that intrudes into the body may be made  pursuant  to  an order entered under  CrR 4.7(b)(2)(vi) if (1) the order is supported by probable case based on oath or affirmation, (2) is entered by a neutral and detached magistrate, (3) describes the place to be searched and the thing to be seized, and (4) if there is a clear indication that the desired evidence will be found, the test is reasonable, and the test is performed in a  reasonable manner.

Here, the WA Supremes decided the trial court errored in procuring the DNA swab because the State lacked a warrant supported by probable cause.  “Consequently, this court cannot say that there was probable cause to search Garcia-Salgado’s DNA.  We reverse the Court of Appeals and remand.”

My opinion?  Heinous as the crime was, the WA Supremes decided correctly.  Defendants have rights, plain and simple.  The criminal justice system must conduct investigations in accordance with these rights.  If the process is short-cutted or made sloppy, then convictions cannot stand.  Here, the State failed to get a warrant for the DNA swab.  Consequently, they should not be allowed to present the DNA evidence at trial.  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. Doughty: WA Supremes Limit Scope of Terry Stops

Constitutional Rights, Drug Offenses, felony, Jail, Jury Trial, law enforcement, Methamphetamine, misdemeanor, police, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Supreme Court, , ,

terry stop | Nevada Public Radio

In State v. Doughty, the WA Supreme Court held that a person’s two-minute visit to a suspected drug house at 3:20 in the morning is insufficient grounds for an investigative seizure.

Late one night, defendant Walter Moses Doughty approached a suspected drug house, stayed for two minutes, then drove away.  A police officer who observed Doughty’s approach and departure stopped Doughty on suspicion of drug activity.  This is typically called a Terry stop under Terry v. Ohio.

During this investigative seizure the officer ran a records check and, based on the results, arrested Doughty for driving with a suspended license.  Police found methamphetamine during a vehicle search incident to arrest.  At trial, he was convicted of Possession of Methamphetamine. The Court of Appeals confirmed the conviction.  The case ended up with the WA Supremes.

Some explanation of a Terry stop is necessary.  In justifying the particular intrusion/investigation, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.  When reviewing the merits of an investigatory stop, a court must evaluate the totality of circumstances presented to the investigating officer.  The State must show by clear and convincing evidence that the stop was justified.

Under this analysis, the WA Supremes reasoned that a person’s presence in a high-crime area at a “late hour” does not, by itself, give rise to a reasonable suspicion to detain that person.  Similarly, a person’s “mere proximity to others independently suspected of criminal activity does not justify the stop.”

Although the State argued the circumstances warranted the search, the court reasoned that Police may not seize a person who visits a location — even a suspected drug house — merely because the person was there at 3:20 a.m. for only two minutes.  “The Terry-stop threshold was created to stop police from this very brand of interference with people’s everyday lives.”  Additionally, the United States Supreme Court embraced the Terry rule to stop police from acting on mere hunches.

Finally, the Court reasoned that Officer Bishop relied only on his own incomplete observations.  There was no informant’s tip and no furtive movement.  Bishop merely saw Doughty approach and leave a suspected drug house at 3:20 a.m.  Bishop had no idea what, if anything, Doughty did at the house.  Accordingly, these circumstances does not warrant intrusion into Doughty’s private affairs.

The WA Supremes reversed the Court of Appeals, suppress the evidence against Doughty, and vacated his conviction.

My opinion?  GREAT decision.  It’s always nice when our esteemed judges follow the law in undramatic fashion.  Clearly, the stop was unlawful and the evidence should have been suppressed by the trial court and court of Appeals. 🙂

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.