Category Archives: Search and Seizure

Is It Against the Law to Destroy Flock Surveillance Cameras?

Bellingham Defense Attorney, Constitutional Rights, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Surveillance Creep, Technology, Whatcom County Criminal Defense, , , , ,

Across the nation, people are vandalizing Flock surveillance cameras at an alarming pace. A surge in such activity underscores the growing resistance to this police surveillance technology.

WHAT ARE FLOCK CAMERAS?

Flock Safety makes surveillance camera systems that record and analyze everything that passes them. The company sells its services as a crime-fighting tool, and some law enforcement agencies that have contracts with Flock use the cameras’ automated license plate readers to track or reconstruct movements of vehicles in criminal investigations.

According to the company, more than 5,000 law enforcement agencies use its technology. More broadly, there are more than 130,000 AI-powered automated license plate readers on American streets, according to DeFlock, an advocacy group that tracks the cameras.

Because Flock cameras are all connected, it creates a nationwide latticework of recorded activity. Across the majority of states, a police officer in one state can be alerted if a car they’re looking for pops up in another and can inform the local authorities.

WHY ARE PEOPLE VANDALIZING FLOCK CAMERAS?

An online movement called DeFlock is growing in popularity. DeFlock’s messaging claims that Flock cameras are a serious risk to your privacy and civil liberties. These systems continuously record your movements without a warrant, probable cause, or even reasonable suspicion. Your driving history is rarely confined to the town or city where the cameras are installed. It’s typically shared with thousands of other agencies nationwide (secretly). DeFlock claims that once the data is out of your community, you have no control over how it’s used or what rules apply, leading to instances of misuse.

People have cut down Flock cameras with an electric saw in upstate New York, thrown paint on them in Oakland, California, and rammed a truck into them in Idaho. One man in Florida sits in a lawn chair holding up a piece of cardboard on a pole to block the camera’s view. City governments have joined in by deactivating the cameras or canceling contracts with Flock in Fort Collins, Colorado; Eugene, Oregon; Madison, Wisconsin; Knoxville, Tennessee; Syracuse, New York; and Walla Walla, Washington.

ARE FLOCK CAMERAS IN WASHINGTON STATE?

Yes. DeFlock’s map currently shows more than 2,100 mapped automated license plate readers in Washington, with Flock Safety accounting for the large majority of mapped cameras. Another independent Washington ALPR inventory lists 2,187 mapped cameras in the state and says 1,912, or 87.4%, are attributed to Flock Safety.

CAN FLOCK CAMERAS BE USED TO TRACK PEOPLE?

404 Media reported that a Flock capability called “FreeForm” allows users to search camera records based on what someone was wearing, their tattoos or even their race. The site also reported that, despite Flock not sharing data with agencies like U.S. Immigration and Customs Enforcement, police officers have been performing searches to aid in immigration sweeps.

IS IT ILLEGAL TO DISARM, BLOCK OR VANDALIZE FLOCK CAMERAS?

In short, yes. Damaging a Flock camera can result in criminal charges. However, the specific charge depends on the circumstances.

Washington’s malicious-mischief laws make certain types of property damage a felony. Second-degree malicious mischief is a class C felony when someone knowingly and maliciously causes more than $750 in physical damage or creates a substantial risk of interruption or impairment of public service by damaging certain public property. First-degree malicious mischief is a class B felony under circumstances including damage exceeding $5,000 or certain interruptions of public service.

DO FLOCK CAMERAS VIOLATE THE FOURTH AMENDMENT RIGHT AGAINST UNLAWFUL SEARCH & SEIZURE?

No. Courts, such as in cases like United States v. Martin, have held that license plates and vehicle characteristics displayed on public roads carry no reasonable expectation of privacy under the Fourth Amendment, because motorists knowingly expose them to public view.

Nevertheless, the debate rages on. Civil liberties groups like the American Civil Liberties Union (ACLU) argue that networked, mass-surveillance databases aggregate data in a way that mimics continuous tracking—drawing parallels to Supreme Court rulings on cell phone location data (Carpenter v. United States) and GPS trackers (United States v. Jones) that do require search warrants. Because of this aggregation concern, ongoing lawsuits and lower court appeals are actively challenging these deployments

WHAT ARE MY CHANCES AT TRIAL?

Probably not great, but not impossible, either. In June, a grand jury in Ohio refused to bring felony charges against a Clermont County man accused of destroying a Flock automatic license plate reader (ALPR). The prosecution’s case seemed iron-clad: according to Cincinnati’s Local12, police identified the man using surveillance footage from multiple nearby cameras, combined with info gleamed from a credit card and a customer rewards account. Despite the evidence against him, the jury declined to indict him, resulting in all charges being dropped.

Clearly, the public lacks the will to prosecute these crimes. Also, observers and commentators on social media suggested the grand jury’s refusal to indict acted similarly to jury nullification – where a panel rejects clear legal guilt because they disagree with the law or the tool being protected.

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

Pretrial Drug-Monitoring “Sweat” Patches Ruled Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, DUI, Mount Vernon Criminal Defense Attorney, Pretrial Release, Search and Seizure, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In Bailey-Cobb v.Snohomish County District Court, No. 87738-1-I (Aug. 17, 2026), the WA Court of Appeals held that Pretrial Drug Monitoring Patches (PDMP’s) are a search and must therefore be supported by authority of law to be lawful.

WHAT ARE PRETRIAL DRUG MONITORING PATCHES?

Ingested drugs have been known to appear in sweat. This has created the development of sweat collection devices for use in drug detection, such as the PDMP sweat patches. However, externally applied drugs or drugs deposited on the skin, can cause false positives or contamination from within (CFWI). Different cleaning procedures are used to remove externally applied drugs, however some drugs can remain causing false positives. Also, if an individual lives in a drug-contaminated environment, CFWI could occur also producing misleading results for drug use.

FACTUAL BACKGROUND

In these consolidated cases, the State charged Mrs. Simone Bailey-Cobb and Mr. Toombs with DUI. As a condition of their pretrial release, the court required them to wear PDMP’s. Bailey-Cobb and Toombs challenged the imposition of the drug patch as a condition of pretrial release. The trial court denied the petitions. Bailey-Cobb and Toombs appealed, alleging the drug-monitoring patch violated the Washington State Constitution.

Additionally, Bailey-Cobb contended the trial court erred in finding she would interfere with the administration of justice, and Toombs claimed the trial court did not make the requisite findings under CrRLJ 3.2 to impose any conditions. We conclude that Bailey-Cobb and Toombs did not suffer diminished privacy interests as pretrial releasees, and the court’s imposition of a drug-monitoring patch violated their rights under article I, section 7. Accordingly, we reverse and remand for the trial court to remove the drug-monitoring patch condition from Bailey-Cobb’s and Toombs’s pretrial release requirements.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) began by saying both the United States Constitution and the Washington State Constitution protect individuals against unreasonable searches and seizures. When a party challenges an action, contending it violates constitutional rights, the court conducts a two-part inquiry.

“First, we must determine whether the alleged action “intruded upon a person’s private affairs,” said the COA. “If a privacy interest exists, the next question is whether relevant authority of law justifies the disturbance.”

Next, the COA discussed CrRLJ 3.2. This court rule gives courts the ability to impose conditions on the accused if the court determines there exists a substantial danger that the accused will commit a violent crime or that the accused will seek to intimidate witnesses, or otherwise interfere with the administration of justice. The conditions include prohibiting the accused from “consuming any intoxicating liquors or drugs not prescribed to the accused” and “any condition other than detention to assure noninterference with the administration of justice[] and reduce danger to others or the community.” To determine which conditions are reasonable, the court shall consider, among others, the accused’s criminal record, the nature of the charge, and the accused’s past interference with the administration of justice.

PDMP’s Are Invasive Technology

The COA reasoned that although Bailey-Cobb and Toombs would not need to submit a urine sample, they would be submitting far more personal information with the patch than urinalysis testing.

“And once affixed to the body, the patch collects and retains evidence of any and all drugs ingested, regardless of whether it is prescribed or otherwise not prohibited, and the individual wearing the patch is required to go into Triton’s office every 10 to14 days to get a new patch. Additionally, the patch does not test for alcohol, which is one of the substances the court order prohibited, so it is conceivable that further testing would be required. The drug patch is also susceptible to outside environmental contamination in limited situations. Because the drug-monitoring patch is invasive and would reveal far more personal information than necessary, it is not narrowly tailored and cannot survive the Olsen balancing test.” ~WA COA

The State Does Not Have a “Special Need”  to Monitor By Imposing PDMP’s.

Next, the COA rejected the argument that the State had a “special need” to monitor the drug use of pretrial releasees via a drug-monitoring patch. “The special needs exception permits an otherwise unlawful search when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impractical,” said the COA.

“Here, the State maintains a special need exists because requiring a warrant or probable cause would jeopardize the State’s need to monitor the defendants for the sake of public safety. But our Supreme Court has repeatedly declined to apply a special needs exception under article I, section 7. See, e.g., Evans, 5 Wn.3d at 215 (declining to adopt the federal special needs exception for administrative searches of pretrial releasees); Blomstrom, 189 Wn.2d at 410 (declining to apply the special needs exception for urinalysis testing of pretrial releasees). Like the balancing test, precedent does not support applying the special needs exception to the imposition of a drug-monitoring patch for pretrial releasees.” ~WA COA

The COA concluded there was no authority of law to impose PDMP’s.  Also, neither the compelling interest test, nor the “special needs” exception to the search warrant requirement applied. “The drug monitoring patch, and the process for obtaining the patch, reveal more personal information than necessary,” said the COA.  “Thus, the patch condition was not narrowly tailored, and not lawful.”

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

Flock Cameras Raise Privacy Concerns

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

Flock Safety is one of the largest ALPR vendors in the United States. Their cameras are installed for police departments, businesses, and HOAs. Captured vehicle data is uploaded to Flock’s cloud system, where participating agencies can search and share information across jurisdictions. Flock is not the only ALPR vendor. Other vendors still participate in similar practices.

WHAT ARE ALPR’S?

Automated License Plate Readers (ALPRs or LPRs) are AI-powered cameras that capture and analyze images of all passing vehicles, storing details like your car’s location, date, and time. They also capture your car’s make, model, color, and identifying features such as dents, roof racks, and bumper stickers, often turning these into searchable data points.

These cameras collect data on millions of vehicles regardless of whether the driver is suspected of a crime. These systems are marketed as indispensable tools to fight crime, but they ignore the powerful tools police already have to track criminals, such as cell phone location data, creating a loophole that doesn’t require a warrant.

WHAT IS THE PROBLEM WITH FLOCK SURVEILLANCE?

Flock’s ALPR cameras aren’t like your normal traffic cameras. This surveillance technology records and tracks every car that comes into view.Next, an AI algorithm catalogs the make, model, color, license plate number, bumper stickers, and even scratches. This personal information is then uploaded into a nationwide database that any law enforcement agency with a Flock contract can search — with few regulations or oversight on how they use what they find.

Flock provides one of the most widely used ALPR systems, but they aren’t the only surveillance company. Other vendors still participate in similar practices. See this list of other common ALPR vendors.

Problematically, these ALPR’s have a lack of transparency, oversight, and regulation into how they collect, store, and use our data, and how to hold public and private actors accountable if they abuse it. Consider how much someone could learn about your life if cameras constantly tracked where you drove. They could discover which doctors you visit, what house of faith you worship at, who you visit or drive around with — even which political meetings and protests you attend.

And we’ve already seen how this mass surveillance tool can be weaponized and abused by law enforcement. ICE and CBP have repeatedly used Flock to go after immigrants without warrants. Kansas police used them to pursue a man who wrote a critical op-ed about the department, while a Colorado police officer wrongfully accused a woman of theft based on a Flock hit and then refused to look at evidence proving her innocence. A mother and her children were held at gunpoint because ALPR cameras wrongly flagged their car as stolen.

My opinion? Automatic license plate reader (ALPR) companies like Flock Safety are quietly trying to build a nationwide mass surveillance system. If there are Flock cameras in your city, they are tracking, logging, and sharing your movements without a warrant. Please contact my office if you, a friend or family member are charged with a crime involving Search & Seizure issues. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court Rules “Geofence Warrants” Constitute a Search Under 4th Amendment

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In Chatrie v. United States, No. 25-112 (Jun. 29, 2026), the U.S. Supreme Court held that Geofence Warrants constitute a “search” under the Fourth Amendment. They acquire people’s location data from Google by linking to their cell-phone location information.

WHAT ARE “GEOFENCE WARRANTS?”

Geofence warrants are an investigative tool typically employed when law enforcement knows the approximate time and location of a crime but not the identities of suspects. In executing a geofence warrant, law enforcement compels a company to provide certain information indicating which particular smartphones were present within a geographic area during a specified time frame. Law enforcement can then use the information to potentially identify the owner of a smartphone found in the area of interest during the time frame. Because geofence warrants do not begin with an identifiable suspect, they have been said to “‘work in reverse” from traditional search warrants.

FACTUAL BACKGROUND

On May 20, 2019, a man robbed a credit union in Virginia. Local police officers learned from witness interviews and surveillance footage that the robber had approached the credit union from a corner of an adjacent church while appearing to talk on a cell phone, but they could not find out anything more, and the robber remained at large. On June 14, the police officers applied to a Virginia magistrate for a Geofence Warrant directed to Google.

Here, the Geofence Warrant would require Google to hand over data about the cell phones located within a 150-meter radius of the credit union—the so-called “geofence”—near the time of the crime.

The federal magistrate judge granted and issued the warrant. Through this process, Google ultimately produced three cell-phone users’ identifying information, including the Defendant Mr. Chatrie. His location data showed that he entered the geofence about ten minutes before the robbery and headed toward a residential area immediately after leaving the bank.

Following further police work, a federal grand jury charged Chatrie with robbery and related firearms offenses. He moved to suppress the information the police obtained from Google. According to Chatrie, the officers had acquired that data through a Fourth Amendment search, and the warrant ostensibly authorizing that search was invalid.

The Fourth Circuit found that the Geofence Warrant “plainly violates the rights enshrined in the Fourth] Amendment. However, it denied the motion based on the good-faith exception to the Exclusionary Rule. A divided panel of the Fourth Circuit affirmed on different reasoning, holding that no search occurred because Chatrie did not have a reasonable expectation of privacy in two hours’ worth of Location History data voluntarily exposed to Google. Eventually, the U.S. Supreme Court decided to hear the case solely on the question whether the police violated the Fourth Amendment in obtaining Chatrie’s location data.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delivered the opinion of the Court. He stated that police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information. Justice Kagan based his reasoing in Carpenter v. United States, which held that accessing cell-site location information (CSLI) constitutes a Fourth Amendment search. In Carpenter, the Court reasoned that CSLI provides a “detailed” and “encyclopedic” portrait of a person’s whereabouts, and, with that, an intimate window into a person’s life. Because people compulsively carry their cell phones all the time, the Carpenter Court explained, a cell phone tracks nearly exactly the movements of its owner, and thus faithfully follows him not only through public thoroughfares but into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. The Carpenter Court further observed that the newfound tracking capacity that CSLI gives the police runs against everyone —not just those under investigation—and travels back in time, making possible a form of surveillance that would have been unknown prior to the digital age.

“Most cell-phone users have no awareness of CSLI records, and would never try to retrieve them; by contrast, Google users regularly employ Location History as a personal journal. In that way, Location History resembles other private materials – e.g., emails, documents, photographs, or calendars – that even if stored on Google’s servers, a user reasonably views as his own and expects to be shielded from the inquisitive eyes of the government.” ~Justice Kagan, U.S. Supreme Court

Against that background, Justice Kagan rejected the Government’s argument that accessing only a short amount of cell-phone location information does not count as a Fourth Amendment search fails. “Even short-term monitoring can provide a wealth of detail about a person’s familial, political, professional, religious, and sexual associations,” said Justice Kagan.

Next, Justice Kagan rejected the Government arguement that the so-called third-party doctrine precludes Chatrie from invoking the Fourth Amendment’s protections. The Government’s idea is that in authorizing Google to collect, retain, and use his location information, Chatrie lost his legitimate expectation of privacy, and therefore his right to complain of a search. However, Justice Kagan emphasized that Carpenter refused to apply the third-party doctrine to CSLI, and no good reason exists to reach a different result for Location History:

“The exposure of that information to Google is merely what happens when a user avails himself of one of the services on his cell phone. The Government’s argument that generating Location History, unlike producing CSLI, is a voluntary choice is meritless.” ~Justice Kagan, U.S. Supreme Court

With that, Justice Kagan remanded the case back to the Federal Court of Appeals to decide whether, at each step of the search process, the Geofence Warrant satisfied the Fourth Amendment’s requirements of particularity and probable cause.

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.

Case v. Montana: U.S. Supreme Court Addresses “Community Caretaking” Exception To The Warrant Requirement

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In Case v. Montana, No. 24-624 (January 14, 2026), the U.S. Supreme Court unanimously (!) decided an interesting criminal case regarding the limits of the Community Caretaking Exception to warrant requirement. In short, Case v. Montana held that a police officer does not need Probable Cause or Reasonable Suspicion to believe an occupant is in need of emergency aid to enter a home without a warrant to render assistance.  Those standards are related to criminal investigations.  An officer need only have an “objectively reasonable basis” to believe that an occupant is seriously injured or imminently threatened with such an injury to justify a warrantless intrusion.

FACTUAL BACKGROUND

In this case, Montana police officers responded to the home of William Case after his ex-girlfriend called 911 to report that he was threatening suicide and may have shot himself. The officers knocked on the doors and yelled into an open window, but got no response. They could see an empty handgun holster and something that looked like a suicide note inside, and they ultimately decided to enter the home to render emergency aid. When one officer approached a bedroom closet in which Case was hiding, Case threw open the closet curtain while hold ing an object that looked like a gun. Fearing that he was about to be shot, the officer shot and injured Case. An ambulance was called to take Case to the hospital, and officers found a handgun next to where Case had stood.

Mr. Case was charged with assaulting a police officer. Case moved to suppress all evidence obtained from the home entry. He argued that the police violated the Fourth Amendment by entering without a warrant. The trial court denied the motion, and a jury found Case guilty. A divided Montana Supreme Court upheld the officers’ entry as lawful under Montana’s Community Caretaker Doctrine, rejecting the contention that an officer must have probable cause to believe that an occupant needs emergency aid.

COURT’S ANALYSIS & CONCLUSIONS

The United States Supreme Court (hereinafter, “The Court”) began with a stare decisis analysis of Brigham City v. Stuart. In that case, the Court held that the Fourth Amendment allows police officers to enter a home without a warrant if they have an “objectively reasonable basis for believing” that someone inside needs emergency assistance. Applied here, the U.S. Supreme Court reasoned that Brigham City’s standard of review was satisfied in this case.

Next, the Court reasoned that although searches and seizures inside a home without a warrant are presumptively unreasonable, that requirement is subject to certain exceptions. Among those exceptions includes the need to render emergency assistance. Additionally, the Court raised and dismissed Mr. Case’s arguments that the Court should understand Brigham City as requiring police officers as requiring probable cause to enter a home in emergency situations. However, the Court declined to put a new probable cause spin onto the emergency-aid standard:

“Probable cause is peculiarly related to criminal investigations, and that body of law would fit awkwardly, if at all, in the non-criminal, non-investigatory setting at issue here,” said the Court. It reasoned that rather Brigham City asked simply whether an officer had an objectively reasonable basis for believing that entry was direly needed to prevent or deal with serious harm. “Courts should assess the reasonableness of an emergency-aid entry on its own terms, rather than through the lens generally used to consider investigative activity,” said the Court.

Finally, the Court reasoned that the officers here had an objectively reasonable basis for believing that their entry was needed to prevent Case from ending his life:

“The information the officers obtained from Case’s ex-girlfriend, combined with their observations at the scene, suggested that Case may already have shot himself or would do so absent intervention. The officers’ decision to enter his home to prevent that result was reasonable.” ~U.S. Supreme Court

Accordingly, the Court affirms the judgment of the Montana Supreme Court.

My opinion? Essentially, this opinion rejects the defendant’s attempt to narrow the Court’s decision in Brigham City. Nevertheless, it’s nice to see the Court unanimously agree, even if the subject matter is not terribly complicated.

Similar to Montana, Washington State has its own Community Caretaking Exception (CCE) to the Warrant Requirement. Under State v. Harris, Washington’s CCE allows police to conduct warrantless searches or seizures when performing non-criminal, health, and safety functions, provided it is not a pretext for criminal investigation. This exception requires that officers have a reasonable, objective belief that assistance is needed, balancing privacy against public interest.

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.

The Age of Surveillance Creep

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Surveillance technology is growing at an alarming rate in our society. For example, AI-powered cameras use of artificial intelligence software to help people take better photos by identifying objects intelligently and optimizing the color and output based on the scene. These technological innovations are not lost upon law enforcement agencies. Tools like Flock Safety license plate readers have the capability to track individuals across cities and states.

Cities and municipalities and considering a variety of surveillance systems to fight crime. Advocates say it makes cities safer, improves traffic, speeds up airport and stadium lines, makes workers more productive and safeguards valuable company property. Problematically,  electronic data gleaned from cities, municipalities and law enforcement can, without any discretion, provide the information to Immigration and Customs Enforcement and other agencies.  Suddenly, the gradual expansion of surveillance technology has now turned narrow safety programs into broad monitoring networks.

Welcome to the Age of Surveillance Creep.

WHAT IS “SURVEILLANCE CREEP?”

“Surveillance creep” is the idea that surveillance measures first installed for beneficial purposes are later used for more sinister purposes. While surveillance has always been about collecting data, it has now stretched into collecting much more personal information. While a type of surveillance may seem reasonable initially, its intentions past its initial purpose are mainly unknown and perverse. For example, with the rise of technologies to help people work from home comes the ability for employers to surveil their employees without their knowledge or at odd hours.

SOCIAL MEDIA

Social media is one example of this type of surveillance. While having access to your friends and family online may seem like a simple and effective type of digital monitoring, this can lead to data collection and targeted advertising which is far less simple. A person’s use of social media also acts as a type of peer surveillance, where the watched watch each other, thus giving even more power to the watcher.

While many social media users are aware of small data collection on their sites, they continue to use the platform and give it their information willingly due to the addictive qualities of online social networking. Even data collection from advertising agencies seems light when compared to the potential threats of fraud and identity theft that can come from social media sites. The idea of social media and data collection has become so normalized that the threats of more sinister crimes are occurring more often.

FACIAL RECOGNITION

According to experts, large-scale companies are happy to sell facial recognition systems to law enforcement agencies. On the upside, the technology assists in finding criminals and missing persons. However, this technology is not always accurate. There are many instances of racial bias and misidentification when using facial recognition. In short, surveillance cameras being used for facial recognition do not recognize darker skin very well. These technological glitches and flaws tend to be negatively affected when it comes to facial recognition searches.

My advice? The government and large corporations are using surveillance as a way to creep into your daily life. You should have the right to contest that information. Seizures and searches of digital data must be cabined to probable cause, limited to specific categories of information relevant to the investigation, and closely overseen by a neutral judge.

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

WA Court Dismisses Criminal Conviction Due To Overbroad Search Warrant

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

FACTUAL BACKGROUND

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

The search requested search and seizure for the following:

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

The “Ruse” Tactics of ICE May Violate Constitutional Rights

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

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

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

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

WHAT IS AN “ICE RUSE?”

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

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

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

Driving While Tinted

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

WHAT ARE THE FEDERAL WINDOW TINTING LIMITS?

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

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

WHAT IS THE WINDOW TINT LIMIT IN WASHINGTON STATE?

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

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

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

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

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

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

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

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

FACTUAL BACKGROUND

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

WHAT IS A TERRY STOP?

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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