Category Archives: Search and Seizure

Can Police Access Your Home Security Cameras?

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

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.

DNA + Facial Recognition Technology = Junk Science

Psychological Assessment in Legal Contexts: Are Courts Keeping “Junk Science”  Out of the Courtroom? – Association for Psychological Science – APS

Intriguing article in Wired featured a story where police used DNA to predict a suspect’s face and then tried running facial recognition technology on the photo.

BACKGROUND FACTS

In 2017, detectives working a cold case at the East Bay Regional Park District Police Department got an idea, one that might help them finally get a lead on the murder of Maria Jane Weidhofer. Officers had found Weidhofer, dead and sexually assaulted, at Berkeley, California’s Tilden Regional Park in 1990. Nearly 30 years later, the department sent genetic information collected at the crime scene to Parabon NanoLabs—a company that says it can turn DNA into a face.

Soon, Parabon NanoLabs provided the police department with the face of a potential suspect, generated using only crime scene evidence.

The image Parabon NanoLabs produced, called a Snapshot Phenotype Report, wasn’t a photograph. It was a 3D representation of how the company’s algorithm predicted a person could look given genetic attributes found in the DNA sample.

The face of the murderer, the company predicted, was male. He had fair skin, brown eyes and hair, no freckles, and bushy eyebrows. A forensic artist employed by the company photoshopped a nondescript, close-cropped haircut onto the man and gave him a mustache—an artistic addition informed by a witness description and not the DNA sample.

In 2017, the department published the predicted face in an attempt to solicit tips from the public. Then, in 2020, one of the detectives  asked to have the rendering run through facial recognition software. It appears to be the first known instance of a police department attempting to use facial recognition on a face algorithmically generated from crime-scene DNA.

At this point it is unknown whether the Northern California Regional Intelligence Center honored the East Bay detective’s request.

DOES THIS SEARCH VIOLATE CONSTITUTIONAL RIGHTS?

Some argue this search emphasizes the ways that law enforcement is able to mix and match technologies in unintended ways. In short, this search uses untested algorithms to single out suspects based on unknowable criteria.

“It’s really just junk science to consider something like this,” Jennifer Lynch, general counsel at civil liberties nonprofit the Electronic Frontier Foundation, tells WIRED. Running facial recognition with unreliable inputs, like an algorithmically generated face, is more likely to misidentify a suspect than provide law enforcement with a useful lead, she argues.

“There’s no real evidence that Parabon can accurately produce a face in the first place . . . It’s very dangerous, because it puts people at risk of being a suspect for a crime they didn’t commit.” ~Jennifer Lynch, General Counsel at Electronic Frontier Foundation.

According to a report released in September by the US Government Accountability Office, only 5 percent of the 196 FBI agents who have access to facial recognition technology from outside vendors have completed any training on how to properly use the tools. The report notes that the agency also lacks any internal policies for facial recognition to safeguard against privacy and civil liberties abuses.

In the past few years, facial recognition has improved considerably. In 2018, when the National Institute of Standards and Technology tested face recognition algorithms on a mug shot database of 12 million people, it found that 99.9 percent of searches identified the correct person. However, the NIST also found disparities in how the algorithms it tested performed across demographic groups.

A 2019 report from Georgetown’s Center on Privacy and Technology was written by Clare Garvie, a facial recognition expert and privacy lawyer. She found that law enforcement agencies nationwide have used facial recognition tools indiscriminately. They’ve tried using images that include blurry surveillance camera shots, manipulated photos of suspects, and even composite sketches created by traditional artists.

“Because modern facial recognition algorithms are trained neural networks, we just don’t know exactly what criteria the systems use to identify a face . . . Daisy chaining unreliable or imprecise black-box tools together is simply going to produce unreliable results. We should know this by now.” ~ Clare Garvie, Esq.

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.

Should We Ban Hog-Tying By Police?

Report: Most of America's largest police departments allow officers to choke, strangle, and hog-tie people | The Week

King5 News reports that Democratic Sen. Yasmin Trudeau has sponsored a bill banning hog-tying by police. The restraint technique has long drawn concern due to the risk of suffocation, and while many cities and counties have banned the restraint technique, it remains in use in others.

The legislation comes nearly four years after Manuel Ellis, a 33-year-old Black man, died facedown with his hands and feet cuffed together behind him. The case that became a touchstone for racial justice demonstrators in the Pacific Northwest.

Senator Trudeau said she doesn’t want anyone else to experience the “dehumanization” Ellis faced before his death.

“How do we move through the need for folks to enforce the laws, but do it in a way where they’re treating people the way we expect, which is as human beings?” ~Senator Yasmin Trudeau

In the last four years, states across the U.S. have rushed to pass sweeping policing reforms.  The legislation was prompted by racial injustice protests and the death of George Floyd and others at the hands of law enforcement. Few have banned prone restraint, according to the National Conference of State Legislatures.

The attorney general’s office in Washington recommended against using hog-tying in its model use-of-force policy released in 2022. At least four local agencies continue to permit it, according to policies they submitted to the attorney general’s office that year.

The Pierce County Sheriff’s Department said it still allows hog-tying but declined to comment on the bill. One of the department’s deputies was involved in restraining Ellis, whose face was covered by a spit-hood when he died.

THOSE SUPPORTING THE LEGISLATION

Trudeau, who represents Tacoma, said she made sure Ellis’ sister, Monet Carter-Mixon, approved of her efforts before introducing the bill. Democratic Sen. John Lovick, who worked as a state trooper for more than 30 years, joined Trudeau in sponsoring the bill. Republican Rep. Gina Mosbrucker, a member of the House public safety committee, said she looked forward to learning more about the legislation.

“If it does turn out that this form of restraint for combative detainees is dangerous in any way, then I think the state should put together a grant and some money to buy and train on alternative methods to make sure that the officer and the person arrested is safe.” ~Republican Rep. Gina Mosbrucker

Please review my Search & Seizur 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.

Faulty Body Scanners at Whatcom County Jail

X-ray scanners stop over 1,000 illegal items entering prisons - GOV.UK

According to the Bellingham Herald, faulty body scanners at the Whatcom County Jail are letting drugs and other contraband into the lockup and must be replaced.

“Within the last two weeks, we’ve had three overdoses related to fentanyl that’s been smuggled into the facility. This is becoming an increasing problem, and those scanners are one of the main tools that we have to detect contraband, both weapons and drugs being smuggled into the facility by persons coming in to the facility through the booking process.” ~WCSO Undersheriff Doug Chadwick

According to previous Bellingham Herald reporting, those scanners were bought in 2018 and 2019 to keep drugs, weapons, cigarettes and lighters out of the jail. Unfortunately, the company that makes the scanners isn’t servicing or maintaining them. Thus far in 2023 there have been 13 overdoses in Whatcom County jail facilities.
My opinion? These security breaches should not be happening. Hopefully, the newly-passed sales tax to pay for a new Whatcom County jail will bring new and improved scanners. Proposition 4 – which passed by 66% in Whatcom County – was the third jail measure Whatcom County had put before voters since 2015. The 2015 plan was for a 521-bed jail at a cost of $125 million. After voters rejected that proposal, county leaders came back in 2017 with 480 beds and a $110 million price tag. Voters rejected this smaller, cheaper jail even more resoundingly.
Under the law, correctional officers have more leeway to order intrusive searches of inmates in a county jail or prison. Along with body scanners, officers can perform a strip search if the search is related to reasonable objectives, such as safety and security. As a result, a defendant’s Constitutional rights against unlawful search and seizure isn’t available if they’re in custody.
Police can perform strip searches without the factors that would give rise to a suspicion that the arrestee possessed concealed contraband. This is allowed, even though nothing about their case would lead police to believe they had anything dangerous or prohibited on their person. Making matters worse, it’s a felony for an inmate to possess weapons and/or contraband.
Jail is a terrible place. 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.

AI Facial Recognition Tech Leads to Mistaken Identity Arrests

Facial recognition fails on race, government study says - BBC News

Interesting article by Sudhin Thanawala and the Associated Press describes lawsuits filed on the misuse of facial recognition technology by law enforcement. The lawsuits come as Facial Recognition Technology and its potential risks are under scrutiny. Experts warn about Artificial Intelligence (AI’s) tendency toward errors and bias.

Numerous black plaintiffs claim they were misidentified by facial recognition technology and then wrongly arrested. Three of those lawsuits, including one by a woman who was eight months pregnant and accused of a carjacking, are against Detroit police.

The lawsuits accuse law enforcement of false arrest, malicious prosecution and negligence. They also allege Detroit police engaged “in a pattern of racial discrimination of (Woodruff) and other Black citizens by using facial recognition technology practices proven to misidentify Black citizens at a higher rate than others in violation of the equal protection guaranteed by” Michigan’s 1976 civil rights act.

WHAT IS FACIAL RECOGNITION TECHNOLOGY?

The technology allows law enforcement agencies to feed images from video surveillance into software that can search government databases or social media for a possible match. Critics say it results in a higher rate of misidentification of people of color than of white people. Supporters say it has been vital in catching drug dealers, solving killings and missing persons cases and identifying and rescuing human trafficking victims. They also contend the vast majority of images that are scoured are criminal mugshots, not driver’s license photos or random pictures of individuals.

Still, some states and cities have limited its use.

“The use of this technology by law enforcement, even if standards and protocols are in place, has grave civil liberty and privacy concerns . . . And that’s to say nothing about the reliability of the technology itself.” ~Sam Starks, a senior attorney with The Cochran Firm in Atlanta.

FALSE ARRESTS BASED ON INACCURATE IDENTIFICATIONS FROM AI CAN SUPPORT A DEFENSE OF MISTAKEN IDENTITY

My opinion? AI should be abandoned if the technology incorrectly identifies perpetrators. As a matter of law, the prosecution must prove the identity of the perpetrator of an alleged crime.

According to the jury instructions on Mistaken Identity, in determining the weight to be given to eyewitness identification testimony, jurors may consider other factors that bear on the accuracy of the identification. These may include:

  • The witness’s capacity for observation, recall and identification;
  • The opportunity of the witness to observe the alleged criminal act and the perpetrator of that act;
  • The emotional state of the witness at the time of the observation;
  • The witness’s ability, following the observation, to provide a description of the perpetrator of the act;
  • The witness’s familiarity or lack of familiarity with people of the perceived race or ethnicity of the perpetrator of the act;
  • The period of time between the alleged criminal act and the witness’s identification;
  • The extent to which any outside influences or circumstances may have affected the witness’s impressions or recollection; and
  • Any other factor relevant to this question.

But what happens when the “eyewitness identifier” is, in fact, AI technology?

At trial, the defense should procure an expert witness who’d testify on the inaccuracies of AI technology. That’s an appropriate route to challenging the credibility of this “witness.”

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

Forensic Genetic Genealogy Is Admissible Evidence At Trial

How DNA was discovered and the cases it has helped solve

In State v. Hartman  the WA Court of Appeals held a defendant has no privacy interest in bodily fluids that he “abandons” at a crime scene. A defendant also lacks standing to challenge a search of the DNA of relatives that were voluntarily uploaded to a public database.

BACKGROUND FACTS

In 1986, MW, a 12-year-old girl, was raped and murdered in a Tacoma park. The killer left semen on MW’s body, but his DNA did not match that of any suspects or anyone in police databases for the next 30 years.

In 2018, police enlisted Parabon Nanolabs, a DNA technology company, to analyze the killer’s DNA and to upload it into GEDmatch, a consumer DNA database, looking for partial familial matches that would help identify the killer. Police did not secure a warrant to analyze the abandoned DNA or to compare it with DNA in the GEDmatch database.

Parabon learned that several of the killer’s cousins had DNA in the GEDmatch database. Parabon used information from the database and public records to construct family trees. Parabon then directed police to try to obtain a DNA sample from Gary Charles Hartman. Police obtained a discarded napkin containing Hartman’s DNA, and it matched the DNA from semen on MW’s body. The State charged Hartman with first degree felony murder.

Before trial, Hartman moved to suppress the DNA evidence, arguing that Parabon’s comparison of the DNA sample from the crime scene to the GEDmatch database was unconstitutional. He also asserted that the DNA later collected from the napkin directly linking him to the murder was inadmissible as fruit of the poisonous tree. Hartman did not argue below that he had any privacy interest in DNA left at the crime scene, nor did he challenge the collection and testing of DNA from the discarded napkin.

The trial court ruled that Hartman did not have legal standing to challenge the comparison of the DNA from the crime scene to DNA in the GEDmatch database because he did not have a privacy interest in his cousins’ DNA in the database. In addition, Hartman’s relatives had voluntarily uploaded their DNA into the GEDmatch database, and the DNA that Hartman left at the crime scene was abandoned and not private. The trial court denied the motion to suppress. After a bench trial on stipulated facts, the trial court convicted Hartman.

Hartman appealed his conviction. He argues that analyzing the DNA sample from the crime scene and comparing it with the GEDmatch database to look for his relatives’ DNA disturbed his private affairs in violation of article I, section 7 of the Washington Constitution. Thus, he argues that he had standing to challenge the DNA comparison. In oral argument, he asserted for the first time that he has a privacy interest in the DNA from the semen abandoned at the crime scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held there is no privacy interest in commonly held DNA that a relative voluntarily uploads to a public database that openly allows law enforcement access.

“Hartman claims a privacy interest in the segments of his DNA that his relatives had in common with him. But all that police learned from the GEDmatch analysis was the killer’s familial relations, which brought them closer to learning the killer’s identity. And identifying unknown family members is the exact reason that users of consumer databases, like Hartman’s relatives, post their genetic material on those databases.” ~WA Court of Appeals.

The Court also ruled there is no privacy interest in DNA that one abandons at a crime scene.

“Voluntary exposure to the public is relevant to our inquiry and can negate an asserted privacy interest.

Consequently, the Court reasoned that Hartman lost any privacy interest in the semen he left behind or the DNA it contained. Therefore, Hartman’s attempt to challenge any DNA analysis of the semen he left behind on MW’s body fails.

With that, the Court of Appeals affirmed Hartman’s convictions.

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

Drivers Can’t Consent to Police Searching a Passenger’s Belongings

Should Cops Be Allowed to Rip Up Your Stuff While Looking for Drugs? | The  New Republic

In State v. Garner, No. 56861-6-II (2023), the WA Court of Appeals held that a driver’s consent to search their car does not extend to searching the contents of closed containers inside the car that do not belong to the driver.

BACKGROUND FACTS

A police officer arrested Mr. Garner on an outstanding warrant after stopping a car and encountering Garner as a passenger. Garner tried to flee on foot but the officer apprehended him. After placing Garner under arrest, the officer spoke with the car’s driver, who said Garner left three backpacks behind in her car. The officer asked the driver for permission to search the car and she granted it.

The officer then searched Garner’s backpacks without requesting his permission and found controlled substances. Later testing established that the controlled substances found in the backpacks were 86.9 grams of methamphetamine and 3.8 grams of heroin.

The State charged Garner with two counts of possession of a controlled substance with intent to deliver. Before trial, Garner moved to suppress evidence obtained from the warrantless search of his backpacks. The trial court denied Garner’s suppression motion. After a bench trial, the trial court found Garner guilty of both counts of possession with intent to deliver.

On appeal, Mr. Garner argued that the trial court improperly denied his suppression motion.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that the trial court should have granted Garner’s suppression motion. It reasoned that a person’s bag or closed container heightened protection under the federal and state constitutions. It emphasized that the Washington Supreme Court has also recognized an expectation of privacy in purses, briefcases, and other traditional containers of personal belongings.

Here, the defendant passenger had a legitimate expectation of privacy in the backpacks he left inside the car when he fled from the police during a traffic stop.  He did not abandon the backpacks or relinquish his privacy interest in them because he was in the vehicle with permission, and took steps to conceal the backpacks from the officer before fleeing.

The Court of Appeals also reasoned that that the driver’s consent to search her car did not extend to Garner’s backpacks.

“Garner had a reasonable expectation of privacy in his backpacks. And while Washington case law does not squarely address whether a passenger has a reasonable expectation of privacy in items left in another’s car, our cases point to the conclusion that Garner did not relinquish his expectation of privacy when he left his backpacks in the driver’s car. Unlike the defendant in Samalia, Garner did not leave his backpacks in a stolen car. He left them in a car he had occupied with the driver’s permission.”

“And unlike the defendant in Reynolds, he did not remove the backpacks from the car and leave them on the road. Rather, Garner, who lacked housing, left his belongings with a person he knew. Moreover, Garner never disclaimed ownership of the backpacks. He took the time to put two of the backpacks on the vehicle’s rear floorboard and tried stowing the third backpack under the driver’s seat. The circumstances lend themselves to the conclusion that he intended to safeguard the backpacks until he could recover them.” ~WA Court of Appeals.

With that, the Court of Appeals reversed Garner’s convictions because the trial court should have granted his motion to suppress.

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

Hotel Room Hosts Can’t Consent To Police Searching Other Guest’s Bags

Single-use plastic bags will be banned in Colorado by 2024 with bag fees set to start in 2023 under new law

In State v. Giberson, No. 56081-0-II (April 4, 2023), the WA Court of Appeals held that the host of a hotel room lacks authority allowing police to search a guest’s grocery bags located inside the room.  A person has a reasonable privacy interest in grocery bags, which are are “traditional repositories of personal belongings.”

FACTUAL BACKGROUND

In May of 2020, police received a tip from a confidential informant that Mr. Giberson planned a drug deal at a nearby motel. Police journeyed to the motel. They conducted surveillance of room #106. Police contacted a person named Mr. Goedker after Goedker departed room #106.

Goedker stated that he was the sole occupant of motel room #106. He said he had been residing there for approximately 10 days. He stated that the defendant Mr. Giberson had stopped by earlier that day. Giberson and a person named Ms. Hopkins remained in the room. Goedker said that there were bags in the motel room belonging to Giberson.

Police opened the door to Room #106. They saw Giberson and an associate sitting at a table. Both Giberson and the associate were detained and removed from the room.

The detectives then searched two plastic grocery bags on the floor next to the door. Inside one of the grocery bags they found a digital scale and two baggies containing heroin.  After searching the bags, police asked Goedker if they belonged to him. Goedker denied ownership and stated that the bags belonged to Giberson.

The State charged Giberson with possession of heroin with the intent to deliver. Before trial, Giberson moved to suppress the evidence found in the warrantless search of the plastic grocery bags. The trial court denied the suppression motion. It reasoned that Gibson lacked standing to challenge the search of his bags. Ultimately, the court also found Giberson guilty as charged. Giberson appealed his conviction. He argued that the search of his grocery bags was unlawful because Goedker could not give consent to search his possessions.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals addressed the issue of whether Giberson had standing to challenge the search of his bags.

“A defendant has automatic standing under article I, section 7 of the Washington State Constitution to challenge a search when (1) possession is an essential element of the charged offense and (2) the defendant was in possession of the item searched at the time of the challenged search,” said the Court. Here, Giberson has automatic standing to challenge the search. Consequently, the trial court erred in concluding that Giberson did not have standing.

Next, the Court of Appeals addressed the issue of whether the search of Gibson’s bags was lawful.

The Court reasoned that warrantless searches are unlawful under the Washington Constitution and the Fourth Amendment to the United States Constitution. Valid consent is an exception allowing for a warrantless search. However, consent to search an area does not necessarily provide authorization to search belongings of a third person inside the area. Here, Goedker did not own, possess, or control Giberson’s grocery bags. Therefore, Goedker did not have authority to consent to the search of Giberson’s bags.

The Court of Appeals further reasoned that a search is unconstitutional if the defendant had a reasonable expectation of privacy in the item searched.  Here, Giberson clearly sought to preserve as private the drugs and digital scale by placing them in his grocery bag. The Court addressed whether Giberson had a privacy interest in storing his belongngs in plastic bags:

“Grocery bags can be characterized as ‘traditional repositories of personal belongings.” People certainly put personal grocery items and other personal items obtained in a grocery store like prescription medications in such bags. And common experience tells us that people also use grocery bags to carry other personal items. For example, this may be true for people such as those experiencing homelessness who may not have space for their personal items. Giberson reasonably could expect that others would not search his grocery bags without his consent. Therefore, we conclude that Giberson had a reasonable expectation of privacy in his grocery bags.” ~WA Court of Appeals.

With that, the Court of Appeals concluded that Goedker’s authority to give consent to search his hotel room did not extend to the search of Giberson’s grocery bags. Furthermore, Giberson had a reasonable expectation of privacy in those bags. Therefore, the trial court erred in failing to suppress the heroin and digital scale found in the search of the grocery bags. Giberson’s conviction was reversed.

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.

Display of a Firearm & Probable Cause

What to know about open carry gun laws in Arizona - Phoenix Business Journal

In US v. Willy  (July 26, 2022), the Ninth Circuit Court of Appeals held that a defendant’s charges for Unlawful Display of a Weapon were not supported by Probable Cause.

BACKGROUND FACTS

Reporting Party #1

On May 12. 2019, the Yakima County’s Sheriff’s Office received a call from a witness (“Reporting Party 1”). The witness stated that a man had pulled up outside of his home in a vehicle and displayed a firearm. Dispatch relayed this information to Deputy Thaxton, who interviewed Reporting Party 1 at his residence. Reporting Party 1 told Deputy Thaxton that a white male in a green truck pulled up on the street in front of his house. The man began talking about being abducted and kept somewhere in the area. The man said he was trying to find the place where he was kept. During the conversation, the man pulled out a semiautomatic pistol, racked the slide, and then put it down.

Reporting Party 1 expressed concern about the man’s mental state. He provided Deputy Thaxton with the truck’s license plate number. The vehicle came back as registered to Mr.  Willy. Thaxton showed Reporting Party 1 Willy’s Department of Licensing photo, and he identified Willy as the man with whom he had spoken. Reporting Party 1 said that Willy made no threats to him, nor had Willy pointed the pistol at him at any time.

Reporting Party #2

About ten minutes after leaving Reporting Party 1’s residence, Deputy Thaxton responded to another report from dispatch. The second call had come from Reporting Party 2, who lived about three miles from the previous caller. Deputy Thaxton spoke to the second witness over the phone because Reporting Party 2 had already left her residence. Reporting Party 2 stated that a man with a name like “Willis” pulled up to her gate in a green truck when she was leaving her house. “Willis” told her that he had been kidnapped and held in a camouflaged trailer or van in the area and that he was trying to find it. While they were talking, the man told her he was armed and then displayed a pistol and put it away. Reporting Party 2 told the man she did not know the place he was looking for, and he drove away. Reporting Party 2 said that she was not was not directly threatened, nor was Willy argumentative or hostile.

Deputy Thaxton located the green truck pulling into a gas station. Once he confirmed the license plate matched the one given to him by Reporting Party 1, Deputy Thaxton turned on his emergency lights and conducted a “high-risk stop.” With his firearm drawn, Deputy Thaxton ordered Willy out of the vehicle. Willy complied with all of Deputy Thaxton’s orders. While making Willy turn around, Deputy Thaxton saw a pistol holstered on his hip. Deputy Thaxton removed the gun, put Willy in handcuffs, and escorted him to the back seat of the police vehicle.

After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. He was also charged with Unlawful Display of a Weapon under Washington statute.

Willy moved to suppress the evidence. The lower federal district court granted the motion to suppress. It found that although Deputy Thaxton had reasonable suspicion to conduct an investigatory stop, he lacked probable cause to make the arrest. The evidence was “tainted by the illegality of the arrest.” The Government filed a timely notice of appeal to the Ninth Circuit.

COURT’S ANALYSIS & CONCLUSIONS

First, the Ninth Circuit analyzed the scope of Washington’s Unlawful Display of a Weapon statute. It began with a discussion of how the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

“Washington is an open carry state. That means that it is presumptively legal to carry a firearm openly.” ~Ninth Circuit Court of Appeals

“The bare fact that Willy displayed a weapon would not be sufficient to stop Willy, because there is no evidence that he was carrying a concealed weapon,” said the Ninth Circuit. Moreover, the reporting parties’ statements that Willy was carrying a gun “created at most a very weak inference that he was unlawfully carrying the gun concealed without a license, and certainly not enough to alone support a Terry stop.”

Additionally, the Ninth Circuit emphasized that Thaxton acquired no additional reasons for arresting Willy until after he stopped him. When Thaxton ordered Willy to leave his truck and turn around slowly, Willy was openly carrying his pistol, in a holster on his hip. The Ninth Circuit pointed out that Washington courts have refused to enforce the statute when the threats are not sufficiently direct or imminent.

Deputy Thaxton’s suspicion that Willy had violated § 9.41.270 arose not from his own observations but from the accounts of two reporting parties.

“The strongest fact for the government is that Willy racked the slide of his gun in the presence of Reporting Party 1. In context, however, that fact does not demonstrate that Willy was acting in manner that warrants alarm.” ~Ninth Circuit Court of Appeals.”

With that, the Ninth Circuit next addressed whether the C02 cartridge found in Willy’s car – and his statements to police – should be suppressed as evidence supporting the federal charges. The Ninth Circuit began by saying that under the “fruits of the poisonous tree” doctrine, evidence seized subsequent to a violation of the Fourth Amendment is tainted by the illegality and subject to exclusion, unless it has been sufficiently “purged of the primary taint.” Wong Sun v. United States. Ultimately, the Ninth Circuit suppressed that evidence as “fruits of the poisonous tree.”

The Ninth Circuit concluded by affirming the lower federal court’s order granting the defendant’s motion to suppress.

My opinion? Good decision. The Ninth Circuit gave an accurate assessment of Washington Law surrounding this issue and made the right decision. Washington is indeed an “Open Carry” state. This fact alone challenges many people’s allegations that someone is unlawfully displaying a weapon. Also , the probabale cause alleged in this case was fart too attenuated to be reliable.

Please contact my office if you have Firearms Offense involving Search and Seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.