Category Archives: Search and Seizure

WA Court Dismisses Criminal Conviction Due To Overbroad Search Warrant

Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Technology, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

EFF Tells the Second Circuit a Second Time That Electronic Device Searches at the Border Require a Warrant | Electronic Frontier Foundation

In State v. Hampton, the WA Court of Appeals held a Search Warrant was overbroad because it allows the seizure of evidence related to crimes for which there was no probable cause; in this case, sex crimes.

FACTUAL BACKGROUND

Law enforcement investigated Mr. Hampton for trafficking in stolen property and controlled substances. During the investigation, officers seized Hampton’s brown briefcase, which contained electronic storage devices. Thereafter, a search warrant authorized law enforcement to search the electronic storage devices and all contents that showed possession of trafficking in stolen property or drugs.

The search requested search and seizure for the following:

“Any data that may be kept on any of the seized digital devices in any format to include but not limited to intact files, deleted files, deleted file fragments or remnants related to the purchase, possession, receipt and distribution of controlled substances and or stolen property.”

When reviewing files from the storage device, law enforcement viewed ten-year-old videos of Hampton engaging in sexual intercourse with his girlfriend, while she was incapacitated. The superior court refused to suppress the videos. A jury convicted Hampton of numerous Sex Offenses. On appeal, Mr. Hampton argued the search warrant was invalid because of its overbreadth.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals (COA) agreed with Mr. Hampton that the trial court should have granted his motion to suppress. First, the warrant authorized an overbroad and unfettered search of electronic storage devices found in the briefcase. Second, law enforcement exceeded the scope of the authorized search when viewing movie files stored on computer drives without regard to their date or connection to the crimes being investigated.

The COA emphasized that the Fourth Amendment demands in part that no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Furthermore, the latter part of this clause requires specificity in a search warrant.  Also, Article I, section 7 of the Washington State Constitution states, “No person shall be disturbed in their private affairs or have their home invaded without authority of law.”

The COA also analyzed that the particularity requirement of search warrants provides important protection against governmental invasion of privacy. This is because the demand renders general searches impossible and prevents the seizure of one thing under a warrant describing another. The particularity requirement also ensures judicial oversight of the scope of a law enforcement search such that the executing officer lacks unlimited discretion when executing the warrant. The warrant must be based on probable cause of criminal activity and must limit the scope of the search to the probable cause determination.

“Specificity consists of two components: particularity and breadth,” said the COA. “Particularity demands that the warrant clearly state what is sought. Breadth requires the scope of the warrant be limited by the probable cause on which the warrant is based.”

The COA reasoned that the search of Mr. Hampton’s electronic storage devices conducted by Detective Travis Frizzell verifies the impermissible breadth of the search warrant. The police’s search warrant affidavit established probable cause to believe Timothy Hampton and Robert Rogers engaged in a criminal conspiracy to purchase and sell narcotics in 2020, not almost a decade earlier.

“By viewing videos from 2013, Detective Frizzell stepped inside a time machine and outside the confines of probable cause. The State’s argument that the warrant sanctioned Frizzell’s view of the 2013 files defeats its defense of the constitutionality of the warrant. If we ruled that the search warrant limited the search to evidence of possessing stolen property or controlled substances and thereby upheld the validity of the warrant, we would need to rule that Detective Frizzell’s search exceeded the scope of the warrant.” ~WA Court of Appeals

The COA concluded that a court must suppress evidence seized due to an overly broad search warrant. It remanded Mr. Hampton’s case to the superior court for vacation of his convictions and for dismissal of the charges.

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

The “Ruse” Tactics of ICE May Violate Constitutional Rights

Bellingham Defense Attorney, Constitutional Rights, Fourth Amendment, Immigration & Customs Enforcement (ICE), Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

Who are these people?' Masked immigration agents challenge local police, sow fear in L.A. - Los Angeles Times

Photo Courtesy of Carlin Stiehl/Los Angeles Times

During the first 100 days of President Donald J. Trump’s second term, U.S. Immigration and Customs Enforcement (ICE) has arrested and deported thousands of illegal aliens. The undocumented immigrants are broadly labelled as criminals who threaten public safety and national security.

Although some undocuments immigrants are criminals, many of them are not. They are  hardworking individuals simply going about their daily lives — working, commuting, and spending time at home with families.

Unfortunately, ICE has used racial profiling and intimidation tactics that instill fear and confusion in communities and stoke mistrust in the police. ICE deploys “ruse” tactics to gain warrantless entry into people’s homes or lure them out. Ruses are a tactic used frequently by ICE in investigating and arresting non-citizens. Since 2013, hundreds of reported raids include those involving ICE’s use of ruses.

WHAT IS AN “ICE RUSE?”

    • Impersonating local law enforcement: ICE agents frequently pose as local police officers, detectives, or probation officers to gain trust or induce individuals to open their doors or cooperate. They might wear plain clothes, wear uniforms labeled “POLICE,” or even vests that resemble local law enforcement uniforms, while concealing any ICE identification.
    • Fabricating investigations: Agents might claim to be investigating a fake crime or a fake crime suspect to identify and locate the targeted individual. They could show a picture of a “suspect” and use a name that matches someone in the household to trick residents into revealing information or letting them inside.
    • Misrepresenting purpose: Agents may request to “take a quick look around” or “come in to talk,” without explicitly stating they are ICE or seeking to make an arrest. This tactic aims to obtain consent to enter the home without the individual realizing they have the right to refuse entry.
    • Using phone ruses: ICE agents may also employ ruses over the phone to locate targets. These could include pretending to be local police asking questions, asking the person to meet them regarding a fake criminal case, claiming to have found a lost ID and needing to arrange a pickup, or contacting them about a court date or updated contact information. 
WHY DO SOME RUSE TACTICS VIOLATE CONSTITUTIONAL RIGHTS?
Under the law, police officers, including ICE, can sometimes employ deceptive tactics in investigations, According to the Harvard Law Review, however, these ruses must generally be within legal boundaries and not violate constitutional rights. For instance, without a judicial warrant, ICE agents cannot force entry into a home and rely on trickery or deception to obtain consent, which raises questions about the voluntariness of that consent.
WHAT CAN PEOPLE IN IMMIGRANT COMMUNITIES DO TO PREVENT UNLAWFUL ARREST, SEARCH, SEIZURE AND DEPORTATION?

In the meantime, people in immigrant communities can defend themselves by knowing their rights. Anybody confronted by law enforcement — whether undocumented or not — can and should do their best to verify the officers’ identity and purpose, document the encounter, and report what happened. Community members who know their rights can lawfully prevent ICE from entering their homes and protect themselves and their loved ones from such deceptive practices. More information in English and Spanish can be found here.

Please review my Search & Seizure Guide and 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.

Driving While Tinted

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

PA Legal Car Window Tinting Shades - Explained

Spring and summer approach. Warmer temperatures and more sunlight are great reasons to tint your car windows. Dark tinted windows can indeed help keep a car cooler in the summer by reducing heat from the sun. However, in many states – including Washington – there are legal limits on how dark you can tint your windows. It’s crucial to be aware of these regulations to avoid fines, searches, seizures and possible arrests.

WHAT ARE THE FEDERAL WINDOW TINTING LIMITS?

The Federal Motor Vehicle Safety Standards limit window tint to 70 percent transmission (the percent of light that passes through a window) for “glazing areas requisite for driving visibility.” And which glazing areas are requisite? Generally, it’s the windshield and the front windows. When you buy a new car, that’s the rule vehicle sellers have to follow. Practically speaking, all windows in new vehicles have some reduction in light transmission. This small amount of tint helps to reduce glare and UV exposure. If you take a close look at your windows, you’ll notice a slight reduction in light compared to having your window open.

The federal rules apply to businesses that sell and repair vehicles, but not to individual car owners. That’s covered by state laws, and they vary from state to state. No state allows tinting of the windshield lower than the federal standard. Front windows range from no additional tint to as dark as 20 percent transmission, and in some states there’s no limit to how dark you can tint your rear windows.

WHAT IS THE WINDOW TINT LIMIT IN WASHINGTON STATE?

In Washington, the transmission limit is 24 percent for all windows (except the windshield, of course). At that tint level you might not be able to see a driver’s face. It depends on where you, the sun and the driver are, in relation to each other. Given the limited number of ways that road users can communicate with each other, being able to see and acknowledge each other is important. Go too dark with your tint and you give that up. A driver might not even notice the problem because they can see other drivers, cyclists and pedestrians. But those people can’t see the person behind the dark window tint.

IS IT A CRIME OR TRAFFIC INFRACTION TO DRIVE WITH WINDOWS TINTED TOO DARK?

A person is guilty of Unlawful Installation of Safety Glazing or Film Sunscreening Material if he or she knowingly installs safety glazing or film sunscreening material in violation of RCW 46.37.430. The fine for driving with illegal window tint in Washington is typically around $136. Law enforcement may require your vehicle to undergo a window tint inspection. If your vehicle fails the inspection, you may need to remove the illegal tint. Fortunately, Washington law allows for medical exemptions for window tint, meaning a doctor’s note can allow for darker tint if deemed necessary. 

CAN POLICE PULL OVER MOTORISTS AND INITIATE A SEARCH IF VEHICLE WINDOWS ARE TOO DARK?

No. By itself, police lack probable cause to search your vehicle and/or arrest you for a crime if you are pulled over for having dark window tints. They would need to observe something illegal, secondary to the tint, to search your car. Other factors, like furtive movements, nervousness, or the odor of marijuana, would need to be present to establish probable cause.

Please review my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime after being pulled over for darkly-tinted windows. Hiring an effective and competent defense attorney is the first and best step toward justice.

A Terry Stop Is Not Improper Just Because Police Officers Handcuff a Defendant

Bellingham Defense Attorney, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Whatcom County Criminal Defense, , , , ,

In United States v. In, the Ninth Circuit Court of Appeals held that a Terry stop  does not escalate into an improper arrest just because the officers handcuffed the defendant.  Handcuffing was a reasonable safety precaution, given the totality of the circumstances. Here, bicycle officers spotting a firearm in the back seat of the defendant’s vehicle during a parking enforcement stop.

FACTUAL BACKGROUND

Mr. Seng In (“Mr. In”) was charged in a federal indictment with being a felon in possession of a firearm after a gun was found in his car during a traffic stop. Mr. In moved to suppress the gun in district court, contending that it was obtained as a result of an unlawful de facto arrest. He did not challenge the officers’ initial traffic stop as an unlawful Terry stop. Instead, Mr. In argued that the officers’ actions, in particular their decision to handcuff him, escalated a valid Terry stop into an unlawful de facto arrest because the officers handcuffed him before they had probable cause to believe that he was prohibited from possessing the gun.

WHAT IS A TERRY STOP?

A Terry stop in the United States allows the police to briefly detain a person based on reasonable suspicion of involvement in criminal activity. Reasonable suspicion is a lower standard than probable cause which is needed for arrest. When police stop and search a pedestrian, this is commonly known as a stop and frisk. When police stop an automobile, this is known as a traffic stop. If the police stop a motor vehicle on minor infringements in order to investigate other suspected criminal activity, this is known as a pretextual stop.

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit explained that in order to determine whether a Terry stop becomes an arrest, one must consider the totality of the circumstances, including the severity of the intrusion, the aggressiveness of the officer’s actions, and the reasonableness of the officer’s methods under the circumstances.

The Ninth Circuit further elaborated that when considering the reasonableness of the officer’s methods under the circumstances, “We consider whether the officer had sufficient basis to fear for their safety to warrant the intrusiveness of the action taken.” This inquiry is undertaken from the perspective of law enforcement, while bearing in mind that the purpose of a Terry stop is to allow the officer to pursue his investigation without fear of violence.

“In this case, the officers’ decision to handcuff Mr. In made the traffic stop more intrusive than a typical Terry stop, but the use of handcuffs was reasonable under the circumstances and did not convert the stop into an arrest.” ~Ninth Circuit Court of Appeals.

Here, the police officer saw an unsecured gun on the floor of the backseat of Mr. In’s car seconds into the traffic stop. When Mr. In was asked whether he had a gun in his car, Mr. In lied to police and said “No.” Although Mr. In was physically cooperative with the officers up until this point, he became uncooperative when he answered untruthfully the officer’s question about having a gun in his car. Therefore, Mr. In’s response reasonably raised the possibility that the stop could turn extremely dangerous due to the information gap that existed between the officers and Mr. In. The safety risks posed by the stop were amplified because the stop occurred about fifty feet from the Strip, a densely populated tourist area, and the officers were patrolling on bicycles without the protection of a patrol car if the traffic stop turned dangerous.

The Ninth Circuit further reasoned that because the officers were patrolling on bicycles, they could not place Mr. In inside a patrol car while conducting their investigation. If the officers had not handcuffed Mr. In, they would have had to rely on their ability to physically overpower him if he attempted to reach for the gun.

“Although Mr. In did not actually reach for the exposed gun, the question is whether officers had a sufficient basis to fear for their safety to warrant the intrusiveness of the actions taken.” ~Ninth Circuit Court of Appeals

Considering the totality of the circumstances, the Ninth Circuit held that the officers had a sufficient and reasonable basis to fear for their safety. This justified their decision to handcuff Mr. In so that their safety was assured during their investigation.

“The officers had good reason to handcuff In to prevent him from being able to access the unsecured gun on the floor of the backseat. The officers were eliminating the possibility that In could gain access to the unsecured gun. That conduct properly protected both the officers and the general public. And this is true even though Nevada is an open carry state. Because the officers’ conduct was reasonable under the circumstances, the Terry stop did not escalate into a de facto arrest without probable cause.” ~Ninth Circuit Court of Appeals

With that, the Ninth Circuit reversed the lower order granting Mr. In’s suppression motion and remanded the case for trial.

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

Substance Use: Health Issue Or Crime?

Bellingham Defense Attorney, Drug Offenses, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

open pill bottle

New polling data from the Legal Action Center shows that more Americans than ever think substance use should be treated as a health issue, rather than a criminal justice issue. But many state and federal laws continue to criminalize substance use – more than half of states still treat drug possession as a felony.

THE POLL DATA

The Legal Action Center poll revealed that in 2024, 75% of Americans thought that substance use disorders (SUD) “should be treated more as a health problem than a criminal problem”, compared with 67% in 2019. The poll also showed rising support for increased spending and access for SUD treatment, including in jails and prisons.

ARE FEDERAL, STATE AND LOCAL DRUG POLICIES WORKING?

The Biden administration dramatically expanded access to naloxone, an overdose-reversal medication, including by making it available over the counter. Some jurisdictions, including Chicago, have made naloxone and fentanyl test strips free to the public. And several states decriminalized drug-checking equipment, including fentanyl test strips in 2023, but some still forbid drug checking.

Some State and local drug policies intended to increase SUD treatment access have been around for a long time, but local and federal governments often fail to provide sufficient funding and attention to make the most of those policies. Even outside of SUD treatment, there is a shortage of behavioral health workers in the US.

HOW DO DRUG CRIMES GET INVESTIGATED AND PROSECUTED?

Drug crimes and charges generally come out of a warrant, a search, a seizure, an informant, a plain view or a tip.  This means that the “how and why” a was searching and seizing something, or, why and how they were engaging an informant or tipster, will raise constitutional issues.  State and Federal Agents must act within Washington State and Federal law.

Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Numerous affirmative defenses exist, including Unwitting Possession and Entrapment. In general, criminal drug cases can be guided towards a favorable resolution. Hiring an effective and competent defense attorney is the first and best step toward justice.

State v. Allah: Probationer’s Right Against Unlawful Search

Bellingham Defense Attorney, Constitutional Rights, Firearm, Mount Vernon Criminal Defense Attorney, Probation, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Whatcom County Criminal Defense, , , , ,

In State v. Allah, the WA Court of Appeals held a probationer’s vehicle was unlawfully searched and seized during a traffic stop. His prior criminal history, gang affiliations and geographic boundary  restrictions did not establish a sufficient nexus for a warrantless search.

FACTUAL BACKGROUND

In October 2020, Mr. Allah was on probation for a 2017 firearm conviction. He was driving his car in the Central District of Seattle, when a police officer pulled him over on suspicion of driving with a suspended license. After learning of Allah’s probationary status, the officer contacted the Department of Corrections (DOC). The Officer requested a Community Corrections Officer (CCO) arrive at the scene to discuss next steps.

While he was on his way to the scene, the CCO reviewed Allah’s prior conditions of community custody. The CCO noted Allah was in violation of a geographic boundary condition, which excluded him from the Central District. The geographic restriction  was in place because Allah was in a gang associated with the Central District.

Upon arriving at the scene, the CCO talked with Allah and then searched the car, specifically for a firearm. The CCO located a firearm on the floorboard underneath the driver’s seat. He collected the firearm as evidence and arrested Allah.

The State charged Allah with a Firearm Offense because his prior convictions barred him from possessing firearms. Allah moved to suppress the firearm evidence from the CCO’s search under a CrR 3.6 Motion. Allah argued there was an insufficient nexus between the search and Allah’s geographic violation. The judge denied Allah’s 3.6 Motion.

In December 2022, a jury convicted Allah as charged.  Allah appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) established that the Washington Constitution provides a robust privacy right; stating that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” That said, warrantless seizures are per se unreasonable and subject to limited exceptions. The State has the burden of proving a warrantless search falls within an exception.

THE COA further established that parolees and probationers have diminished privacy rights. This is because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. As such, a probationer may be searched on the basis of a wellfounded or reasonable suspicion of a probation violation rather than a warrant supported by probable cause.

Even with probationer’s diminished privacy rights, however, the Washington Constitution permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.

“Permitting searches without a nexus would allow fishing expeditions to discover evidence of other crimes, past or present. After all, if a prior conviction, not to mention a prior arrest, should afford grounds for believing that an individual is engaging in criminal activity at any given time thereafter, that person would never be free of harassment, no matter how completely he had reformed.” ~WA Court of Appeals

The COA’s Rationale On “Sufficient Nexus”

The COA further surmised that even when there is a nexus between the property searched and the suspected probation violation, an individual’s reduced privacy interest is safeguarded in two ways. First, a CCO must have reasonable cause to believe’ a probation violation has occurred before conducting a search at the expense of the individual’s privacy. Second, the individual’s privacy interest is diminished only to the extent necessary for the State to monitor compliance with the particular probation condition that gave rise to the search. The individual’s other property, which has no nexus to the suspected violation, remains free from search.

In sum, neither CCO or the State provide a sufficient explanation of why any person would reasonably believe Allah may have had a weapon immediately preceding the search. No matter how the constitutionality of the search is conceptualized—i.e., whether as requiring a nexus between the boundary violation and the vehicle searched, or as simply requiring reasonable suspicion—the logical gap remains.

As to the geographic boundary, CCO admitted it was irrelevant to his decision to search. As to Allah’s prior firearm conviction, our Supreme Court has long explained that a probationer’s past convictions alone are not enough to support a search. Otherwise, a probationer “would never be free of harassment, no matter how completely he had reformed.”

With that, the COA reversed the lower court’s denial of Allah’s CrR 3.6 motion to suppress the firearm evidence. The COA also reversed Allah’s conviction, and remanded the matter to the lower court for future proceedings.

Please review my Search and Seizure Legal Guide and 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. Ortega: Court Upholds Forensic Search of Defendant’s Cell Phone Using “Cellebrite Touch” Software

Bellingham Defense Attorney, Cell Phone, Mount Vernon Criminal Defense Attorney, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Supreme Court cell phone ruling doesn't affect local law enforcement

In State v. Ortega, the WA Court of Appeals held that police officers executing a search warrant for an electronic device are not exceeding the scope of the warrant by manually searching through all the images on a device to find and seize images depicting specific content.

FACTUAL BACKGROUND

Mr. Ortega was investigated for sex offenses against his girlfriend’s children. Police believed Mr. Ortega’s cell phone probably contained evidence of the crimes with which he was charged. They obtained possession of the cell phone from a family member, who voluntarily turned it over to police. The court granted the police’s request for a search warrant. Pursuant to the warrant, police searched the phone and seized 35 images, many of which were incriminating.

Mr. Ortega moved to suppress the fruits of the cell phone search. He argued that the warrant was insufficiently particular, in violation of the state and federal constitutions. At his suppression hearing, officers testified they began the search by connecting Mr. Ortega’s phone to an extraction device known as the “Cellebrite Touch.”  They ran an extraction that allowed the files on Mr. Ortega’s phone to be organized into categories (for example, messages, images, etc.). Once extracted, data is not visible unless someone opens the individual category folders through Cellebrite’s physical analyzer program.

After the data extraction, police produced a thumb drive containing more than 5,000 extracted images. One officer testified it was similar to being given a physical photo album and having to flip through the pages to find what you are looking for.

The trial court denied Mr. Ortega’s motion to suppress the images seized from his cell phone. Mr. Ortega subsequently waived his right to a jury trial and his case was tried to the bench. The court found Mr. Ortega guilty as charged. Mr. Ortega timely appealed on arguments that the State’s case was tainted by evidence seized during an unconstitutional cell phone search.

COURT’S ANALYSIS & CONCLUSIONS

1. The Search Warrant Passed the “Particularity Requirement.”

The Court of Appeals (COA) began by explaining that both the Fourth Amendment and the Washington Constitution require that a search warrant describe with particularity the place to be searched and the persons or things to be seized. The particularity requirement, which aims to prevent generalized rummaging through a suspect’s private affairs, is of heightened importance in the cell phone context. This is because of the vast amount of sensitive data contained on the average user’s smartphone device. The purposes of the particularity requirement are to prevent a general search, limit the discretion of executing officers, and ensure that items to be searched or seized are supported by probable cause, said the COA.

Consequently, the COA reasoned the warrant satisfied the particularity requirement. It directed officers to search the phone and seize images and/or videos depicting Mr. Ortega engaged in sexual contact with minors.

“This did not permit a general rummaging; it was akin to a warrant allowing a search of a residence for controlled substances and indicia of ownership.” ~WA Court of Appeals

2. Officers Did Not Exceed the Scope of the Warrant.

The COA discussed the scope of a search can be limited by identifying targeted content. When a warrant authorizes a search for a particular item, the scope of the search “generally extends to the entire area in which the object of the search may be found.

The COA reasoned that police properly limited the scope of their search to the terms of the warrant. The incriminating images could have been located almost anywhere on Mr. Ortega’s cell phone—not only in a photos application, but also in e-mails and text messages.

Furthermore, had the detectives chosen to search Mr. Ortega’s phone manually, they likely would have needed to sort through data other than images in order to find the targets of their search. And they would have risked jeopardizing the evidentiary integrity of the phone. By instead using forensic software, the detectives were able to organize the data from Mr. Ortega’s phone without first viewing the phone’s contents. This enabled them to limit their search to data labeled as photos and videos, thus restricting the scope of the search to areas where the target of the search could be found.

“By using forensic software to extract and organize data from Mr. Ortega’s phone, the detectives were able to minimize their review of the phone contents and tailor their search to the evidence authorized by the warrant. This did not violate Mr. Ortega’s constitutional rights.” ~WA Court of Appeals

With that, the COA denied Mr. Ortega’s appeal and upheld his convictions.

Please review my Search & Seizure Legal Guide and 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.

U.S. Supreme Court Ruling May Allow More Aggressive Homeless Encampment Removals

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Eighth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

Activists demonstrate at the Supreme Court as the justices consider a challenge to rulings that found punishing people for sleeping outside when shelter space is lacking amounts to unconstitutional cruel and unusual punishment, on Capitol Hill April 22 in Washington. (AP photo/J. Scott Applewhite)

(AP photo/J. Scott Applewhite)

In City of Grants Pass, Oregon v. Johnson, the U.S. Supreme Court’s conservative majority upheld Oregon’s ban on camping. It found laws that criminalize sleeping in public spaces do not violate the Eighth Amendment’s protections against cruel and unusual punishment.

BACKGROUND FACTS

The city of Grants Pass in southern Oregon has a population of approximately 38,000. Of that population, somewhere between 50 and 600 persons are unhoused. Whatever the exact number of unhoused persons, however, it exceeds the number of available shelter beds, requiring that at least some of them sleep on the streets or in parks. However, several provisions of the Grants Pass Municipal Code prohibit them from doing so, including an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance.

A district court certified a class of plaintiffs of involuntarily unhoused persons living in Grants Pass. The district court concluded that, based on the unavailability of shelter beds, the City’s enforcement of its anti-camping and anti-sleeping ordinances violated the Cruel and Unusual Punishment Clause. A panel of the Ninth Circuit affirmed, and the Ninth Circuit denied rehearing en banc. The U.S. Supreme Court decided to hear the case.

COURT’S ANALYSIS & CONCLUSIONS

Writing for the majority, Justice Neil Gorsuch said that the nation’s policy on homelessness shouldn’t be dictated by federal judges, rather such decisions should be left to state and local leaders.

“Homelessness is complex,” Gorsuch wrote. “Its causes are many. So may be the public policy responses required to address it.”

“At bottom, the question this case presents is whether the Eighth Amendment grants federal judges primary responsibility for assessing those causes and devising those responses. It does not,” ~U.S. Supreme Court Justice Neil Gorsuch

In a dissenting opinion, Justice Sonia Sotomayor wrote that, for some people, sleeping outside is a “biological necessity” and it’s possible to balance issues facing local governments with constitutional principles and the humanity of homeless people.

“Instead, the majority focuses almost exclusively on the needs of local governments and leaves the most vulnerable in our society with an impossible choice: Either stay awake or be arrested.” ~Justice Sonia Sotomayor

Criminalizing homelessness can “cause a destabilizing cascade of harm,” Sotomayor added. When a person is arrested or separated from their belongings, the items that are frequently destroyed include important documents needed for accessing jobs and housing or items required for work such as uniforms and bicycles, Sotomayor wrote.

My opinion? The U.S. Supreme Court’s decision will likely result in municipalities taking more aggressive action to remove encampments. This may include searching homeless people’s property and/or discarding it. Since the ruling allows municipalities to issue more citations and arrests without violating the Eighth Amendment, the decision could lead to more legal claims over other constitutional protections, which could include the disposal of people’s property during encampment removals. Other legal claims over cities’ treatment of homeless people have focused on rights protecting against unreasonable search and seizure and guaranteeing due process, in the Fourth and 14th Amendments.

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.

Can Police Access Your Home Security Cameras?

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Technology, Whatcom County Criminal Defense, , , , ,

An illustration of an police badge-shaped eyeball placed on the top of a video doorbell with a blue background.

Photo Credit: Reviewed / Tara Jacoby

Home security systems are an excellent way to protect your loved ones and belongings from unwanted intruders. With a sophisticated security setup, you can ensure a sense of control, vigilance and assurance, allowing you to focus on the moments that truly matter. Privacy is a priority for most homeowners investing in smart home security devices, especially when it comes to worries about hacking or data theft.

Although beneficial, these devices raise other concerns. Can law enforcement legally capture and/or review your home surveillance video footage whenever they want? Would you even know if they did?

REQUESTING CLOUD VIDEO UNDER “EXIGENT CIRCUMSTANCES” EXCEPTION TO  SEARCH WARRANT REQUIREMENT.

First, law enforcement may request cloud video footage in case of an emergency, better known as “Exigent Circumstances.” Here an “emergency” typically means a life-or-death situation or something else high-stakes, such as a kidnapping or a manhunt for a violent criminal.

Most security companies that offer video storage in North America will obey these emergency requests. Here’s an explanation from Google Nest on how it handles sharing user data with law enforcement. It also exlaines how it may try to narrow the scope of the request for user privacy, and how it may or may not let users know about the request. Security users may not know that their cloud videos were accessed by police.

“Before complying with a request, we make sure it follows the law and Nest’s policies,” the company says. “We notify users about legal demands, when appropriate, unless prohibited by law or court order. And if we think a request is overly broad, we’ll seek to narrow it.” ~Google Nest

In these situations, law enforcement contacts the cloud video management organization directly (usually your security brand like Arlo or Ring), and requests specific video footage from an area through channels set up to allow for such requests.

SEEKING A WARRANT FOR HOME SECURITY DEVICES

Another option police have to seize cam footage is via a warrant or similar court order. Warrants allow police to take home security devices and examine them, including any local storage that you have, so avoiding cloud storage won’t help very much.

Typically, warrants are granted only when police can provide some evidence that a crime may have been committed on the property. It depends on the court and judge where the warrant is requested, but granting warrants is common. The warrant then becomes active and has a specific scope for where and what it applies to (which is why you should always ask to view a warrant if law enforcement wants your security cameras).

Warrants raise a further important question: Will you get your home cam back if it’s seized during a legal search? That’s a subject of some deliberation, although it’s generally agreed from cases like these that the Fourth Amendment prevents law enforcement from holding onto digital devices or data indefinitely. Getting your camera back during a real-world seizure may not be so cut and dried.

REGISTERING SURVEILLANCE EQUIPMENT WITH LAW ENFORCEMENT AGENCIES

There’s an interesting third option for law enforcement that’s been growing in popularity, especially in certain cities and states where police departments are looking to tap into smart home tech. Home security owners can register their cameras and similar devices with local police departments, letting them know there is a device at a specific property that’s recording. We’re seeing programs like this everywhere from Buffalo, New York’s SafeCam to the Bay Area in California.

These programs vary, but there are several important points. First, this isn’t the same thing as registering an alarm system via a local permit, it’s specifically for video recording devices. Second, registering does not mean police can look through your cams or view any recorded footage. They know where registered residential cameras are, so they can request footage directly from participants with cameras near a crime, etc.

Finally, if you do grant permission to police to access a registered camera, they’ll be able to view and copy video images, which can be used as evidence in a criminal proceeding. Often, registration programs have requirements like banning you from sharing video with the media and other fine print. Keep in mind, police may still be able to seek a warrant to take cams and video footage if you deny a request via a registration program.

POSTING HOME SECURITY FOOTAGE ONLINE

A number of security brands offer ways to post videos online through things like the Ring Neighbors app, dedicated forums, social media groups and so on. If you post a video in a public space like this, even if you’re only asking for advice, then it’s fair game for law enforcement to use as well. Just this year, however, Ring decided to end its more liberal sharing program with police, limiting them to the life-or-death requests discussed above.

Please review my Search & Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime involving home security footage. Hiring an effective and competent defense attorney is the first and best step toward justice.

State Auditor’s Report: Police Agencies Can Be More Transparent About Returning Seized Assets

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Among the nearly 1,000 people who had property seized by the Washington police agencies that were audited, only 25% were convicted of a crime.

Photo courtesy of the Seattle Times

According to the Seattle Times, a new state audit says that Washington police agencies could be more transparent about the process of seizing a defendant’s assets after arrest. Personal property like cars, cash or guns that are seized in the course of criminal investigations can often be returned, but are not.

CIVIL ASSET FORFEITURE

Police, in a practice known as civil asset forfeiture, can seize items they believe were used in a crime without an arrest, criminal charge or conviction of the person who owns the property. State law lets police agencies keep 90% of the proceeds from forfeitures and to use the money to help disrupt illegal drug activity.

In Washington, police can seize property if they believe it is connected to a crime. If the police agency decides not to pursue forfeiture, they can then return the property to its owner. But if the agency decides to move forward, an initial notice goes to the owner (within 15 days), who can file a claim to get it back (within 45 days, or 90 days for real property like land or buildings).

THE STATE AUDITOR’S REPORT FINDINGS

The report reviewed eight police agencies, including the Seattle Police Department. Agencies were chosen based on location, the type of agency and level of civil asset forfeiture activity.

Among the audited agencies, 75% of seized property was automatically forfeited because the owner either did not file a claim, file a claim on time, or failed to attend a hearing. For many of the reviewed cases, it was because claims weren’t filed. Auditors also found that among the 1,000 people who were faced with forfeiture at those eight agencies, only 25% were convicted of a crime. Auditors also found that police often seized property worth less than $2,000.00. More disturbing, at least one racial or ethnic group was overrepresented in forfeiture data compared with their share of the population.

At the Seattle Police Department, for example, Latinos made up an estimated 23% of the people whose assets were forfeited, despite being 7% of the population, and Black people 17%, despite being 7% of the population. But at the Grays Harbor County Drug Task Force, white people were overrepresented by 9 percentage points.

The report also suggested police agencies can do more to make sure people know their property has been seized. Agencies can also better discuss the process of getting property returned, like providing information in languages other than English.

Please contact my office if you, a friend or family member are charged with a crime. In many cases, a defense attorney can argue a Motion for the Release of Personal Property which was confiscated by police. Hiring an effective and competent defense attorney is the first and best step toward justice.