Category Archives: Search and Seizure

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.

Extraction of Smartphone Data by U.S. Law Enforcement

Mass Extraction | Upturn

A new report from upturn.org reveals that thousands of smartphones are searched by police every day across the US. Unfortunately, most searches are done without a warrant and in violation of the Fourth Amendment’s guarantee against unreasonable searches and seizures.

THE PROBLEM

Law enforcement agencies across the country search thousands of cellphones, typically incident to arrest. To search phones, law enforcement agencies use mobile device forensic tools (MDFTs). This powerful technology allows police to extract a full copy of data from a cellphone. This data includes all emails, texts, photos, location, app data, and more. The report documents more than 2,000 agencies that have purchased these tools, in all 50 states and the District of Columbia.

“We found that state and local law enforcement agencies have performed hundreds of thousands of cellphone extractions since 2015, often without a warrant. To our knowledge, this is the first time that such records have been widely disclosed.” ~Upturn.org

According to the report, every American is at risk of having their phone forensically searched by law enforcement. Police use these tools to investigate assault, prostitution, vandalism, theft, drug-related offenses, etc. Given how routine these searches are today, it’s more than likely that these technologies disparately affect and are used against communities of color.

The emergence of these tools represents a dangerous expansion in law enforcement’s investigatory powers. In 2011, only 35% of Americans owned a smartphone. Today, it’s at least 81% of Americans. Moreover, many Americans — especially people of color and people with lower incomes — rely solely on their cellphones to connect to the internet. For law enforcement, mobile phones remain the most frequently used and most important digital source for investigation.

THE SOLUTIONS

Upurn.org believes that MDFTs are simply too powerful in the hands of law enforcement and should not be used. But recognizing that MDFTs are already in widespread use across the country, they offer a set of preliminary recommendations that, in the short-term, help reduce the use of MDFTs. These include:

  • banning the use of consent searches of mobile devices,
  • abolishing the plain view exception for digital searches,
  • requiring easy-to-understand audit logs,
  • enacting robust data deletion and sealing requirements, and
  • requiring clear public logging of law enforcement use.

Of course, these recommendations are only the first steps in a broader effort to minimize the scope of policing, and to confront and reckon with the role of police in the United States.

“This report seeks to not only better inform the public regarding law enforcement access to mobile phone data, but also to recenter the conversation on how law enforcement’s use of these tools entrenches police power and exacerbates racial inequities in policing. ” ~Upturn.org

Special thanks to authors Logan Koepke, Emma Weil, Urmila Janardan, Tinuola Dada and Harlan Yu for providing this highly informative and educational material.

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

High Court: Race Must be Considered in Determining Legality of Police Stops and Seizures

Center for the Study of Race and Law | University of Virginia School of Law

In State v. Sum, the WA Supreme Court held that  a person’s race – and law enforcement’s long history of discrimination against people of color – should be taken into account when determining the legality of police seizures.

FACTUAL BACKGROUND

The case concerns Palla Sum, a person of color who identifies himself as Asian/Pacific Islander. Mr. Sum was sleeping in his car in Tacoma one morning in April 2019 when police came upon him. Deputy Rickerson An officer ran his plates. The car was not stolen. There is no indication that it was parked illegally. Nevertheless, the car attracted the deputy’s attention because “it was parked there.”

The officer knocked on the window, asked Sum questions and asked him for identification. Sum gave a false name and the officer went back to his cruiser to check records. Sum then drove off, crashed into a front lawn and was caught as he attempted to run away.

Sum was subsequently charged with Making a False Statement, Eluding and Unlawful Possession of a Firearm, after a gun was found in his car.

Sum filed a pretrial motion to suppress pursuant to CrR 3.6. He argued that he was unlawfully seized without reasonable suspicion when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft. The court denied Sum’s motion to suppress. It ruled that because Sum was not seized when Rickerson asked him to identify himself, because the did not retain Sum’s physical identification to conduct his records check. Sum was convicted of all three charges by a jury.

Although the WA Court of Appeals upheld his conviction, Sum again appealed to the WA Supreme Court. He argued  that there is no justification—aside from unacceptably ignoring the issue of race altogether—for courts considering the totality of the circumstances to disregard the effect of race as one of the circumstances affecting evaluation of police contact.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court discussed the standard of review for addressing similar cases. It reasoned that the search and seizure inquiry is an objective test. An allegedly seized person has the burden to show that a seizure occurred. It further clarified that a person is seized if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement’s display of authority or use of physical force.

The Court also took its “objective analysis” test a step further:

“For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.” ~Justice Mary Yu, WA Supreme Court

Furthermore, wrote the Court, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.

Next, the Court applied its now race-conscious test to the facts of the case. It reasoned that based on the totality of the circumstances, Mr. Sum was seized when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft.

“As the State properly concedes, at that time, the deputy did not have a warrant, reasonable suspicion, or any other lawful authority to seize Sum,” wrote Justice Yu. “As a result, Sum was unlawfully seized, and the false name and birth date he gave to the deputy must be suppressed. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings.”

My opinion? Good decision.

In an amicus brief, public defender and civil rights groups argued that law enforcement’s history of discriminating against people of color needs to be reflected in how the law is interpreted. The groups, including the King County Department of Public Defense and the ACLU of Washington, wrote the following:

“Centuries of violence and dehumanizing treatment of people of color have required BIPOC communities to develop survival strategies that demand over-compliance with law enforcement . . . For courts to continue to blind themselves to that reality when evaluating the freedom an individual would feel to unilaterally terminate a law enforcement contact is to further enshrine existing racial disparities into the legal system.”

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.

Bellingham Residents Express Concern Over Rising Crime Rates

Neighborhood Policing - City of Bellingham

KGMI reports that the Bellingham City Council, mayor and other leaders heard from residents about their concerns about public safety at a virtual community meeting held on Monday, May 16th.

Residents expressed concerns about housing prices, drug deals in their neighborhoods and rising crime rates. Chief Deputy for the Bellingham Police Department Don Ahlmer told the meeting that while crime rates are up, the numbers have to be viewed with perspective.

“If you look at the numbers for aggravated assault, if a seven year average is 124, the last three-year average is roughly 50 more a year. You’re looking at one more assault a week . . . So, numbers are numbers . . . But I don’t want the public or anybody watching this to think, oh my gosh, there’s like a hundred extra assaults a day.” ~ Deputy Almer, Bellingham Police Department

Mayor Seth Fleetwood said the city needs more police officers.

“We’re fortunate to have a police department that is exceptional, made up of capable, caring, highly confident, trained professionals,” said Fleetwood. “But our staffing levels are down and we’re doing all we can to staff back up. And I know that we’re going to get there.”

Click here to watch a YouTube video of the meeting.

My opinion? The concerns of Bellingham’s citizens reflect national trends that crime – especially homicides and manslaughter – has increased. Covid disrupted every aspect of life in the past two years. Social services and supports that help keep crime down vanished overnight. Schools could no longer keep unruly teens safe and distracted. A broader sense of disorder and chaos could have fueled a so-called moral holiday, in which people disregard laws and norms.

Citizens are righteously concerned with crimes happening in their backyards. And yes, we need solutions. The solutions involve training and hiring police officers who are not racially biased. We need police officers who won’t conduct illegal searches/seizures. And we need police officers who won’t go about policing poverty. These practices strain the criminal justice system. They also burden impoverished people with fines for minor offenses and fracture the relationship between police and minorities.

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.

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.