Category Archives: Search and Seizure

Give Them An Inch . . .

GIVE AN INCH THEY'LL TAKE A MILE - GOSPELDADS

In State v. Boman, the WA Supreme Court held that a cell phone owner who gave consent for police to search text messages also gave police the authority to use his phone to set up a “ruse” drug bust sting. The subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On Appeal, the WA Court of Appeals reversed Bowman’s conviction. The Court reasoned that the DHS Agent (1) disrupted Mr. Bowman’s private affairs and (2) was not acting under authority of law. With that, the Court of Appeals reversed Mr. Bowman’s conviction.

WA SUPREME COURT’S ANALYSIS & CONCLUSIONS

However, the WA Supreme Court found that police did not violate Mr. Bowman’s constitutional rights. The Court reasoned that under State v. Hinton, Bowman did indeed have a privacy interest in the text messages he sent to a third party’s device. That said, Schabell’s consent to search his phone gave police the necessary authority of law to view the text message conversation. Furthermore, police did not commit an unconstitutional trespass by sending text messages to Bowman’s cell phone as part of a ruse.

“Consistent with long-standing precedent, we hold that a cell phone owner’s voluntary consent to search text messages on their phone provides law enforcement with the authority of law necessary to justify intruding on an otherwise private affair. We also hold that a subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution.” ~WA Supreme Court

“That he misunderstood the identity of the person he was texting does not transform the
unsolicited incoming message into an unconstitutional trespass,” said the WA Supreme Court. “The risk of being betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society.”

With that, the WA Supreme Court reversed the Court of Appeals and reinstated Bowman’s conviction.

My opinion? This issue, and many other related issues, will likely require further consideration if such investigatory tactics continue to be used in Washington. Please review my Search and 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.

Cell Site Location Info

Find Your Nearest Cell Tower in Five Minutes or Less: 2021 Edition
In State v. Denham, the WA Supreme Court held there was a sufficient nexus between the defendant’s seized phone records and the suspected criminal activity to support the issuance of a search warrant.
BACKGROUND FACTS
A valuable diamond was stolen from a jewelry store. Within days, the Defendant Mr.  Denham sold that diamond. Police suspected Denham committed the burglary and got a warrant for his cell phone records. Cell site location information included in those phone records placed Denham’s phone near the jewelry store around the time of the burglary.
Mr. Denham was charged and ultimately convicted with second degree burglary and first degree trafficking in stolen property. At Denham’s bench trial, The trial judge cited the
fact that Denham had made phone calls that were routed through the cell tower in
the parking lot of the jewelry store around the time of the burglary. Ultimately, the trial judge found Denham guilty as charged.
Mr Denham appealed his case to the WA Court of Appeals. He challenged the admissibility of the search warrant and the evidence it produced. His argument was that the warrant based on generalizations and did not establish that evidence of wrongdoing would likely be found in his phone records. The WA Court of Appeals agreed with Mr. Denham. The State, however, filed its own appeal. And Mr. Denham’s was heard in the WA Supreme Court.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court began by discussing the admissibility of cell phone records.
“Our constitutions protect individual privacy against state intrusion,” said Justice Gonzalez, who authored the opinion.  He said that under the U.S. Constitution and WA State Constitution, police must have either the authority of a warrant or a well-established exception to the warrant requirement to lawfully intrude into an individual’s private affairs.
“This constitutional protection extends to cell phone location information held by cell phone companies,” said Justice Gonzalez.  He acknowledged that time-stamped data contained in cell phones provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.
Next, Justice Gonzalez described how a search warrant should be issued only if it shows probable cause that the defendant is involved in criminal activity and that evidence of the criminal activity will be found in the place to be searched. “There must be a nexus between criminal activity and the item to be seized and between that item and the place to be searched,” he said. “The warrant must also describe with particularity the place to be searched and the things to be seized.”
With that, Justice Gonzalez reasoned that the search warrant affidavits were proper:
“These affidavits present reasonable grounds to believe that the phones associated with the phone numbers belonged to Denham based on Denham’s own use of the numbers with his probation officers and with various businesses, that Denham had the phones around the time of the burglary because of specific facts suggesting he had the phones days before and after the date in question, that Denham burgled the store, and that Denham trafficked distinctive pieces stolen from the store. They also allege that Denham had both phones at the time of the burglary and used one to arrange the sale of the diamond that was the basis of the trafficking charge.
Taken together, this is sufficient to raise a reasonable inference that evidence of burglary would be found in the cell site location information . . . The fact that there are some generalizations in the inferential chain does not defeat the reasonableness of the inference.” ~Justice Gonzalez, WA Supreme Court
Justice Gonzalez concluded by holding that the search warrant contained sufficient detail to conclude that evidence of a crime would more likely than not be found in the cell site location information in telephone company records of Denham’s cell phones.
Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Denham’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.

Exigent Circumstance DUI

William's Wooden Garage (Essex) | Quick-garden.co.uk

In Lange v. California, the United States Supreme Court held that the pursuit of a fleeing misdemeanor DUI suspect does not always qualify as an Exigent Circumstance justifying a warrantless entry into a person’s garage.

FACTUAL BACKGROUND

One night, the Defendant Mr.  Lange drove by a California highway patrol officer while playing loud music. The officer followed Lange and soon after turned on his overhead lights to signal that Lange should pull over. Rather than stopping, Lange drove a short distance to his driveway and entered his attached garage.

The officer followed Lange into the garage. He questioned Lange and, after observing signs of intoxication, put him through field sobriety tests. A later blood test showed that Lange’s blood-alcohol content was three times the legal limit. The State charged Lange with the misdemeanor of DUI.

Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry violated the Fourth Amendment. The Superior Court denied Lange’s motion, and its appellate division affirmed. The California Court of Appeal also affirmed. It reasoned that the pursuit of a suspected misdemeanant was always permissible under the exigent circumstances exception to the warrant requirement. The California Supreme Court denied review. The United States Supreme Court (USSC) granted it.

ANALYSIS & CONCLUSIONS

The USSC held that under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always—that is, categorically—justify a warrantless entry into a home.

The Court began by saying the Fourth Amendment ordinarily requires that a law enforcement officer obtain a judicial warrant before entering a home without permission. But an officer may make a warrantless entry when the exigencies of the situation, considered in a case-specific way, create a compelling need for official action and no time to secure a warrant. The Court has found that such exigent circumstances may exist when an officer must act to prevent imminent injury, the destruction of evidence, or a suspect’s escape.

The Court reasoned that misdemeanors run the gamut of seriousness, and they may be minor. States tend to apply the misdemeanor label to less violent and less dangerous crimes. Furthermore, it reasoned that when a minor offense (and no flight) is involved, police officers do not usually face the kind of emergency that can justify a warrantless home entry.

“Add a suspect’s flight and the calculus changes—but not enough to justify a categorical rule,” said the Court. It further reasoned that in many cases, flight creates a need for police to act swiftly. But no evidence suggests that every case of misdemeanor flight creates such a need.

“When the totality of circumstances shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. Those circumstances include the flight itself. But pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless home entry.” ~United States Supreme Court.

The Court followed up by saying In short, the common law did not have — and does not support — a categorical rule allowing warrantless home entry when a suspected misdemeanant flees.  With that, the Court vacated Mr. Lange’s criminal conviction.

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

Tackle or Terry Stop?

Man escapes NYPD car before being tackled Video - ABC News

In State v. Pines, the WA Court of Appeals held that police officers exceeded the scope of a Terry Stop when, with no observations or information from which to believe the suspect was carrying a weapon, they followed the suspect into a restaurant, tackled him to the ground, held him down by the neck and head, and handcuffed him.

BACKGROUND FACTS

On March 23, 2018, Officer Sausman was in his vehicle when he identified the defendant Mr. Pines driving a black BMW. Sausman recognized Pines and was aware that Pines had a warrant for Residential Burglary and Domestic Violence charges. Sausman also knew that Pines was previously convicted of a felony.

Sausman followed Pines to Columbia City, where Pines parked his vehicle and entered a Pagliacci Pizza restaurant. Sausman advised the uniformed arrest team that Pines was in the restaurant.

Detective Miller was one of three uniformed officers that entered the restaurant to contact Pines. As the officers entered, Pines began moving toward the other door. The officers tackled Pines to the ground, holding him down by the neck and head, and handcuffed him. The officers then frisked Pines and found a handgun in his jacket pocket. The State charged Pines with Unlawful Possession of a Firearm in the First Degree.

Pines moved to suppress the handgun during a pretrial CrR 3.6 hearing. The trial court denied Pines’s motion to suppress. Later, during a bench trial, the trial court found Pines guilty and imposed a sentence of 24 months in prison.

Pines appealed on arguments that that the trial court erred in finding that the search and discovery of his firearm was a lawful Terry Stop, and thus denying his motion to suppress. Pines contends that his seizure amounted to a custodial arrest and that the police lacked probable cause at the time of his arrest.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals said that under the Washington Constitution, warrantless searches are per se unreasonable unless one of the narrowly drawn exceptions to the warrant required applies. Furthermore, said the court, if the evidence was seized without authority of law, it is not admissible in court. Finally, it reasoned that a person is seized when an officer, by physical force or show of authority, restrains the person’s freedom of movement. The restraint must be such that a reasonable person would not believe they were free to leave.

“The State argues, and the trial court agreed, that Pines’s seizure and subsequent search was the result of a valid Terry Stop,” said the Court of Appeals. “We disagree.”

The Court of Appeals elaborated that under Terry v. Ohio, a police officer may temporarily detain a person based on a reasonable suspicion that the person is or has been involved in a crime.

“In evaluating the reasonableness of an officer’s suspicion, we look to the totality of the circumstances known to the officer,” said the Court of Appeals. “We determine the reasonableness based on an objective view of the known facts, not the officer’s subjective belief or ability to correctly articulate his suspicion in reference to a particular crime. The detention must not exceed the duration and intensity necessary to dispel the officer’s suspicions.”

The Court relied on State v. Mitchell  – an important Washington case on Terry Stops – to determine whether the officer’s interactions with Mr. Pines was lawful:

“Here, in stark contrast with Mitchell, the arresting officers did not observe Pines carrying a weapon. Indeed, as Detective Miller testified, they had no reason to contact Pines except for their belief that he might have a warrant.

Further, unlike Mitchell, where the officer was alone at night, there were three uniformed police officers along with Detective Sausman at the scene. No officer testified that they feared for their safety prior to Pines’s seizure or that they had seen a weapon prior to their search. And finally, unlike Mitchell where the defendant was told to lie down without contact from the officer, the three uniformed officers forcefully took Pines to the ground and handcuffed him, while Detective Sausman yelled that Pines was under arrest on a felony warrant.” ~WA Court of Appeals

With that, the WA Court of Appeals held that a reasonable person in Pines’s situation would consider themselves under custodial arrest. “Pines’s seizure exceeded the scope of a valid Terry Stop. The trial court erred in concluding the search was valid under Terry.”

The Court of Appeals also reasoned that although the officer’s knowledge of a month-old arrest warrant would support a properly limited Terry detention, it was insufficient to provide probable cause for arrest.  “The month gap between the officer learning of the arrest warrant and the arrest was too long – the suspect could have been arrested and posted bail during the 30-day interval,” said the Court.

The Court dismissed Pines’s conviction with prejudice.

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.

Discarded DNA Admissible

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

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

Emergency Exception to the Warrant Requirement

Most humiliating experience of my life:' Black North Carolina man after false burglar alarm - ABC News

In United States v. Holiday, the 9th Circuit Court of Appeals held that the police officer’s opening of the defendant’s unlocked front door constituted a search that was not justified by Exigent Circumstances exception to the warrant requirement because officers had no reason to believe that an emergency existed.

BACKGROUND FACTS

Mr. Holiday was tried and convicted for seven counts of armed robbery and three instances of attempted armed robbery under 18 U.S.C. 1951. The federal district court sentenced him to a mandatory minimum term of eighty-five years’ imprisonment.

At his trial, the Government sought to admit police body camera footage taken during an unrelated police encounter at the defendant’s home in connection with the report of child abuse in a vehicle registered to the defendant’s home. In the footage, the defendant was wearing shoes that matched the description of the shoes the suspect was wearing at an ARCO gas station in one of the robberies.

The body camera footage was taken on February 7, 2017. It was taken after police received a report that a man was hitting a child in the backseat of a blue Jaguar. In a “contemporaneous line” of actions from the report of the incident, police ran the license plate and found it was registered to a person with the initials M.B.

The bodycam video shows that when the officers arrived at the defendant’s  address, one of them knocked on the front door, tried the handle, and found it was unlocked. The officer pushed the door open but remained standing on the threshold. Holiday and his wife were on their way to the door when the officer opened it. They told the officers that their children were at school and that they did not own a blue Jaguar. There is no indication that the officers saw a blue Jaguar at or near Holiday’s residence. The officers took Holiday’s name and left.

Mr. Holiday moved to suppress the bodycam footage of this exchange on the ground that it was collected in violation of the Fourth Amendment. However, the federal district trial court denied Mr. Holiday’s motion to suppress the aforementioned bodycam evidence.  Later, Holiday was found guilty. The court sentenced him to a mandatory minimum term of eighty-five years’ imprisonment.

Holiday appealed on grounds that the trial court errored by denying his motion to suppress the body camera footage of him.

COURT’S ANALYSIS & CONCLUSIONS

First, the 9th Circuit reasoned that The San Diego Police Department did not obtain a
warrant to search Holiday’s home in connection with the report of child abuse in a blue Jaguar registered to Holiday’s address.

“Searches and seizures inside a home without a warrant are presumptively unreasonable and therefore violate the Fourth Amendment, unless subject to an established exception,” said the 9th Circuit, quoting  Kentucky v. King, 563 U.S. 452, 459 (2011).

Next, the 9th Circuit addressed the Government’s argument that the search was legal because it was pursuant to the Emergency Exception to the Warrant Requirement (Exigent Circumstances).

Ultimately, the 9th Circuit Court of Appeals disagreed with the Government. The court reasoned that the officers’ opening of the unlocked front door constituted a search that was not justified by the emergency exception as the officers had no reason to believe that the child victim was is the home at the address where the Jaguar was registered. There was no indication that the incident in the Jaguar had ended, and no blue Jaguar was at the address when the officers arrived.

“The officers’ conduct does not fall within the scope of the emergency exception to the warrant requirement.” ~ 9th Circuit Court of Appeals.

The 9th Circuit concluded, however, that the error in admitting the body camera evidence was harmless because of the strength of the other evidence that the defendant committed the ARCO robbery.

Please review my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime and the police search/seizure might be unlawful. Hiring an effective and competent defense attorney is the first and best step toward justice.

President-elect Joe Biden on the U.S. Drug Epidemic

Joe Biden says he 'regrets' supporting 'tough-on-crime' drug laws in 1990s as he considers presidential bid | The Independent | The Independent

Excellent article in Politico by staff reporters Dan Goldberg and Brianna Ehley discusses how President-elect Joe Biden will emphasize drug treatment and prevention, not law enforcement, in addressing a drug epidemic that’s only grown more dire during the Coronavirus Pandemic.

According to the article, Biden will take office at a crucial moment in the fight against drug addiction. Some states are contending with double-digit spikes in overdose deaths, sparse public health workforces are already stretched thin fighting the coronavirus and widening budget deficits brought on by the pandemic could force states to make painful cutbacks to public services.

Also, more than 76,000 people died of a drug overdose between April 2019 and April 2020, according to the most recent preliminary federal data, the most ever recorded during a 12-month period. Federal health officials say the drug crisis has only been amplified by months of social isolation, high unemployment and the diversion of resources to combat the virus.

Biden, who often spoke during the campaign about his son Hunter’s struggles with substance abuse, has called for record investments in drug prevention and treatment while also holding drug companies accountable for their role in the opioid epidemic.

According to the article, it’s staggering how much the pandemic has exacerbated the drug crisis this year. Ohio recorded 543 overdose deaths in May, the most ever in a single month. Overdose deaths in the state this year may even surpass a record 4,800 in 2017, said Dennis Cauchon, president of Harm Reduction Ohio.

“I never thought we could top 2017 levels of death and I was wrong . . . It’s a slaughter out there.” ~Dennis Cauchon, president of Harm Reduction Ohio.

Oregon reported a 70 percent increase in the number of overdose deaths in April and May compared to the same two months in 2019. In Maine, overdose deaths during the first half of 2020 were up 27 percent from the previous year. Spikes have also been documented in Colorado, Kentucky and Louisiana.

Please contact my office if you, a friend or family member face drug charges. The search and seizure of the drugs may have violated the defendant’s Constitutional rights. Hiring an experienced and effective criminal defense attorney is the first and best step towards justice.

Constructive Possession

Constructive Possession | Murphy's Law Office

“How can I be arrested for possessing drugs when I didn’t have the drugs anywhere on my body?”

A recent case handed down from the Washington Court of Appeals succinctly answers that question in the context of an unlawful possession case involving the search and seizure of drugs from a vehicle.

In State v. Listoe, the Court held that sufficient evidence existed to establish the defendant had constructive possession over the illegal drugs discovered on the back floorboards of the car he was driving.

FACTUAL BACKGROUND

On May 11, 2018, Deputy Andrew Hren observed a black car parked at a 7-Eleven convenience store. On running the license plate, Hren discovered that the car’s registration had expired. The car pulled out of the 7-Eleven parking lot, Hren got behind it and pulled it over. Listoe, who was driving the car, did not pull over immediately but traveled for about 1,000 feet first, which Hren believed was uncommon.

As Hren approached the car, he could see Listoe making a series of movements with his hands. Listoe opened the door and began to step out, but Hren ordered him to get back in the car. Hren observed Listoe making additional “furtive movements” in his lap area. Hren then ordered Listoe to place his hands on the steering wheel, and Listoe complied.

Hren informed Listoe of the reason for pulling him over, and Listoe responded that the car was not his and that he did not know the registration was expired. A passenger named Ms. Lemon was sitting in the car’s passenger seat. After briefly speaking to Lemon, Hren told Lemon that she was free to leave, and she left. Lemon was not searched during the encounter.

Hren ordered Listoe out of the vehicle and placed Listoe under arrest. During the search incident to Listoe’s arrest, Hren found a plastic bag that contained a white crystalline substance on Listoe’s person. The substance appeared to be methamphetamine. Listoe also had $221 in his wallet.

A K-9 unit alerted to the presence of controlled substances in the car Listoe was driving. Due to the K-9 alert, Hren obtained a search warrant to search the interior of the vehicle for additional evidence of controlled substances. Police found numerous items associated with drug dealing activities: a notepad with a name and phone number, a digital scale, a plastic Tupperware container that had white residue, a factory packaged plastic bag with syringes, and a mint container that contained shards of a white crystalline substance that Hren believed was methamphetamine.

Listoe was charged with one count of possession of methamphetamine with intent to
manufacture or deliver and one count of possession of a controlled substance (Suboxone). The jury found him guilty as charged.

On appeal, Listoe claims that there was insufficient evidence that he had constructive possession over the methamphetamine and Suboxone discovered on the back floorboards of the car he was driving. Listoe asserts that evidence was insufficient because (1) the car was not his, (2) the officers did not find evidence proving that Listoe had dominion and control over the car and its contents, and (3) the drugs on the rear floor of the car could have reasonably belonged to Lemon.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals held that We hold that the evidence was sufficient to establish that Listoe had constructive possession over the items the officers discovered in the back of the car.

“The facts that (1) Listoe was driving the vehicle, (2) Listoe had methamphetamine on his person, which is one of the same drugs found in the back of the vehicle, and (3) Deputy Hren observed Listoe making furtive movements while taking an uncommonly long time to pull over, provide sufficient evidence of constructive possession to support Listoe’s convictions.” ~WA Court of Appeals

The Court reasoned that under State v. Reichert, possession can either be actual or constructive. It also reasoned that under State v. George, whereas actual possession requires an individual to have physical custody of a given item, constructive possession may be shown where the individual has “dominion and control” over that item. Control need not be exclusive to establish possession, and more than one person can be in possession of the same item.

“We examine the totality of the circumstances and look to a variety of factors to determine whether an individual has dominion and control over an item,” said the court. The court further said for example, that it may consider whether the individual could readily convert the items to his or her actual possession and/or the defendant’s physical proximity to a given item.

Finally, the court said it may also consider whether the defendant had dominion and control over the broader premises in which the item was located. In cases where the defendant was driving a vehicle that the defendant owned, courts have found sufficient evidence that the defendant had dominion and control over the vehicle’s premises and its contents.

With that, the Court rendered its decision.

“The fact that Listoe was driving the car weighs in favor of finding that Listoe had dominion
and control over the vehicle and its contents,” said the court. The court also reasoned that the fact that fruits and vegetables, which are perishable items, were discovered in the same reusable black grocery bag as the white bag containing the contraband, shows that these items likely belonged to either Listoe or Lemon.

“It is unlikely that perishable items were left in the car by a prior driver or passenger,” said the Court. “Further, Listoe’s furtive hand movements on two occasions, as well the fact that Listoe drove an uncommonly long distance before pulling over, raise an inference that the was handling the contraband at that time, or possibly strategizing about where to hide it.”

The Court believed this same fact could also support a reasonable inference that Listoe could convert dominion and control over the items in the vehicle into his actual possession. In addition, because Hren found methamphetamine on Listoe’s person during the search incident to arrest, and methamphetamine was also discovered in the back of the vehicle, a rational trier of fact could infer that the methamphetamine in the back of the vehicle belonged to Listoe as well.

Finally, the Court of Appeals reasoned that while the above facts may not have been sufficient to establish constructive possession in isolation, taken together, they would lead a rational trier of fact to find that Listoe had constructive possession over the items in the back of the vehicle he was driving. ”

Ultimately, although the court found that Listoe’s convictions were supported by sufficient evidence, it reversed his conviction on the technicality that the trial court improperly applied GR 37 when considering his objection to the State’s peremptory challenge of a non-white juror.

Please contact my office if you, a friend or family member face criminal charges involving the search and seizure of vehicles, homes and/or persons. Sometimes, police officers violate people’s Constitutional rights during the course of a search. Hiring an experienced criminal defense attorney who knows the law is the first and best step toward justice.

Privacy & Text Messages

Cop Cams New To Most But Old School For Modesto PD - capradio.org

Privacy & Text Messages. In State v. Bowman, the WA Court of Appeals held that a police officer violates a defendant’s constitutional rights by sending a text message to the defendant from an unfamiliar phone number while impersonating a known contact of the defendant.

BACKGROUND FACTS

A Department of Homeland Security (DHS) agent sent a series of text messages to Mr. Bowman. The DHS agent claimed to be someone named Mike Schabell, a person to whom Bowman had sold methamphetamine earlier that day, and indicated he wanted to buy more drugs. The ruse led to charges of possession of methamphetamine with intent to deliver.

The trial court denied his motion to suppress the drugs and drug paraphernalia on his person and in his vehicle. At trial, Mr. Bowman was found guilty.

On appeal, Bowman argues the trial court erred in denying his motion to suppress evidence that flowed from his text message conversation with the DHS Agent. Specifically, he argues that DHS Agent’s impersonating a known contact of his through text messages violated his right to privacy under the Washington Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under article I, section 7 of the Washington Constitution, no person shall be disturbed in his private affairs, or his home invaded, without authority of law.

“Interpretation of this article requires a two part analysis,” said the Court. “First, we must determine whether the action complained of constitutes a disturbance of private affairs,” said the Court. “If we determine that a valid private affair has been disturbed, we then must determine whether the intrusion is justified by authority of law.”

The DHS Agent’s Actions Disrupted Mr. Bowman’s Private Affairs.

The Court of Appeals began by defining “Private affairs” as those privacy interests which citizens of this state have held, and should be entitled to hold, safe from government trespass without a warrant.

Based on that, the Court reasoned Mr. Bowman did not talk with someone he thought was a stranger. Rather, he conversed with a person who represented himself as someone that Bowman knew. Therefore, reasoned the court, Bowman had a reasonable expectation of privacy for that conversation. The DHS agent invaded that right of privacy.

The DHS Agent Was Not Acting Under Authority of Law.

The Court of Appeals reasoned that although Mr. Schabell consented to the search of his phone, there was no proof that he consented to being impersonated.

“Therefore, Dkane was not acting under authority of law, and violated Bowman’s right of privacy,” said the Court. “The trial court erred by failing to suppress the evidence obtained by that violation of privacy.”

With that, the Court of Appeals reversed Mr. Bowman’s conviction and remanded for a new trial, with instructions to suppress evidence obtained in violation of Bowman’s right to privacy.

My opinion? Good decision.

Reasonable Suspicion & 911 Calls

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In United States v. Vandergroen, the 9th Circuit Court of Appeals held that the police’s search of a suspicious person was reasonable under the circumstances when bar patrons called 911 minutes before to report the man had a pistol on him.

BACKGROUND FACTS

Late on a Saturday evening of February 17, 2018, a worker at a bar in California called 911 to report that three patrons had seen a man in the area with a pistol on him. In response to this call, the police stopped the man as he drove away, discovered a pistol in his car, and placed him under arrest. The man, Mr.  Vandergroen, argued a Rule 12 motion to suppress the evidence. The lower federal court denied the motion. Vandergroen was subsequently convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), which is a federal criminal conviction.

On appeal, Vandergroen now argues that the 911 call should never have led to his stop in the first place because it did not generate reasonable suspicion, and that the evidence of the pistol should therefore have been excluded.

COURT’S ANALYSIS & CONCLUSIONS

The 9th Circuit Court of Appeals disagreed with Mr. Vandergroen. It affirmed the lower court’s denial of Vandergroen’s motion to suppress and upheld his conviction.

The Court began by saying that under the Fourth Amendment, an officer may conduct a brief investigative stop only where s/he has a particularized and objective basis for suspecting the particular person stopped of criminal activity, commonly referred to as “reasonable suspicion.”

The Court further elaborated that while a 911 call may generate reasonable suspicion, it can only do so when, under the totality-of-the circumstances, it possesses two features. First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop.

Finally, the Court identified a number of factors that demonstrate the reliability of a tip. These facts include (1) whether the tipper is known, rather than anonymous; (2) whether the tipper reveals the basis of his knowledge; (3) whether the tipper provides detailed predictive information indicating insider knowledge, id.; whether the caller uses a 911 number rather than a non-emergency tip line; and (4) whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge.

With the above in mind, the Court of Appeals delved into its analysis.

“The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion,” said the Court. It reasoned that first, the statements by an independent witness were undoubtedly reliable. “Witness #2 provided his name and employment position, making him a known, and therefore more reliable, witness,” said the Court.

Second, the Court of Appeals reasoned that the statements by the bar’s patrons were also reliable. “Although the patrons remained anonymous during the call, which generally cuts against reliability, their statements exhibited sufficient indicia of reliability to overcome this shortcoming,” said the Court. Finally, the Court reasoned that the reported activity — possessing a concealed weapon  was presumptively unlawful in California and was ongoing at the time of the stop.

In conclusion the Court of Appeals held that the 911 call generated reasonable suspicion justifying the stop and the lower court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop. His criminal conviction was upheld.

My opinion? Mind you, this is a federal opinion. Under Washington law, however,  a bare report that someone is in possession of a firearm does not provide reasonable suspicion for an investigative stop. This is because Washington is both an open carry state and liberally grants concealed weapons permits. United States v. Brown.

In Washington, under RCW 9.41.300(1)(d), a stop may have been permissible in this case if the individual with the pistol had been in that portion of the lounge classified by the state liquor and cannabis board as off-limits to persons under twenty-one years of age. That’s because it is unlawful for any person to enter a bar with a firearm.

Please read my Legal Guide on Search and Seizure and contact my office if you, a friend or family member face criminal charges involving a questionable search or seizure of evidence. Hiring a competent and experienced defense attorney is the first and best step towards justice.